Mohamed K. Abdo & Fardowsa J. Farah

United States Tax Court

162 T.C. No. 7

MOHAMED K. ABDO AND FARDOWSA J. FARAH,

Petitioners

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket No. 5514-20. Filed April 2, 2024.

—————

R issued Ps a notice of deficiency dated December 2,

2019. The notice specified March 2, 2020, as the last day

to petition the Court. That date was not a Saturday,

Sunday, or legal holiday in the District of Columbia.

Ps mailed the Petition on March 17, 2020.

Ps resided in Ohio at all relevant times. On March

31, 2020, the President issued a major disaster declaration

under the authority of the Robert T. Stafford Disaster

Relief and Emergency Assistance Act, 42 U.S.C. §§ 5121–

5207, with respect to Ohio as a result of the COVID-19

pandemic. The declaration identified the disaster

conditions as “beginning on January 20, 2020, and

continuing.”

On September 2, 2020, R filed a Motion to Dismiss

for Lack of Jurisdiction on the ground that the Petition was

not filed within the time prescribed by I.R.C. § 6213(a) or

I.R.C. § 7502. Ps contend that I.R.C. § 7508A(d), which

provides for a mandatory 60-day extension of certain tax-

related deadlines by reason of a federally declared disaster,

operated in conjunction with the President’s declaration to

automatically extend the filing deadline.

Served 04/02/24

2

On June 11, 2021, final regulations were issued with

respect to I.R.C. § 7508A(d). See Treas. Reg. § 301.7508A-

1(g). R contends that the regulations apply to this case,

that they are entitled to deference under Chevron, U.S.A.,

Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), and

that the Petition was untimely filed under their provisions.

Ps agree that Chevron provides the proper framework for

the Court to review the regulations and that the deadline

to file their Petition was not extended under the

regulations. Ps contend, however, that the Petition was

timely under all reasonable constructions of I.R.C.

§ 7508A(d) and that Treas. Reg. § 301.7508A-1(g)(1) and (2)

is invalid.

Held: I.R.C. § 7508A(d) provides for an

unambiguously self-executing postponement period for the

filing of a petition with the Court for a redetermination of

a deficiency.

Held, further, Treas. Reg. § 301.7508A-1(g)(1)

and (2) is invalid to the extent it limits the non-pension-

related “time-sensitive acts that are postponed for the

mandatory 60-day postponement period . . . [to] the acts

determined to be postponed by the Secretary’s exercise of

authority under [I.R.C. §] 7508A(a).”

Held, further, Ps were entitled to an automatic,

mandatory 60-day postponement period from January 20,

2020, to at least March 20, 2020, to file their Petition.

Ps’ Petition was filed timely, and we have jurisdiction.

R’s Motion will be denied.

—————

Megan L. Sullivan and David L. Meenach, for petitioner.

Louis H. Hill and Eric O. Young, for respondent.

OPINION

MARSHALL, Judge: This deficiency case is before the Court on

respondent’s Motion to Dismiss for Lack of Jurisdiction (Motion) on the

3

ground that the petition was not filed within the time prescribed by

section 6213(a)1 or section 7502. To decide the Motion, we must

interpret for the first time section 7508A(d), which provides for the

mandatory 60-day extension of certain tax-related deadlines by reason

of a federally declared disaster. 2 We will deny respondent’s Motion for

the reasons set forth below.

Background

The following facts are derived from the pleadings, the parties’

Motion papers, and the Exhibits attached thereto. These facts are

stated solely for the purpose of ruling on the Motion and not as findings

of fact in this case. See Rule 1(b); Fed. R. Civ. P. 52(a); Pearson v.

Commissioner, 149 T.C. 424, 425 (2017). Petitioners resided in Ohio at

all relevant times. 3

Respondent issued petitioners a notice of deficiency dated

December 2, 2019, in which respondent determined a $9,634 income tax

deficiency and a $166 accuracy-related penalty under section 6662(a) for

petitioners’ taxable year 2018. The 90th day after December 2, 2019,

was Sunday, March 1, 2020. The notice of deficiency specified the

following day, March 2, 2020, as the last day to petition the Court. That

date was not a Saturday, Sunday, or legal holiday in the District of

Columbia. The parties agree that petitioners mailed their Petition to

the Court on March 17, 2020.

Between March 19 and July 9, 2020, the Court did not receive

mail because of the Court’s closure in response to the Coronavirus

1 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the

Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and

Rule references are to the Tax Court Rules of Practice and Procedure.

2 Section 7508A(d) has the heading “Mandatory 60-day extension.” Although

60 days is a minimum duration, see § 7508A(d)(1) and (2), in keeping with the parties’

arguments and for ease of discussion throughout, we will generally refer to a section

7508A(d) extension as lasting 60 days.

3 Absent stipulation to the contrary, any appeal of this case would lie to the

U.S. Court of Appeals for the Sixth Circuit. See § 7482(b)(1)(A), (2). Where relevant

to the discussion, we note that court’s precedent. See Bontrager v. Commissioner, 151

T.C. 213, 215 n.2 (2018); Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff’d, 445

F.2d 985 (10th Cir. 1971).

4

Disease 2019 (COVID-19) pandemic. On July 10, 2020, the Court

received and filed the Petition.

On March 13, 2020, the President of the United States declared a

nationwide emergency under section 501(b) of the Robert T. Stafford

Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C.

§§ 5121–5207, as a result of the COVID-19 pandemic (Nationwide

Emergency Declaration). See Letter to Federal Agencies on an

Emergency Determination for the Coronavirus Disease 2019

(COVID-19) Pandemic Under the Robert T. Stafford Disaster Relief and

Emergency Assistance Act, 2020 Daily Comp. Pres. Doc. 159 (Mar. 13,

2020). The President also approved major disaster declarations for each

of the 50 states pursuant to section 401 of the Stafford Act. On

March 31, 2020, Pete Gaynor, the administrator of the Federal

Emergency Management Agency (FEMA), at the direction of the

President, signed DR-4507-OH (Ohio Disaster Declaration), which

declared the State of Ohio a major disaster area. See Ohio; Major

Disaster and Related Determinations, 85 Fed. Reg. 26,702 (May 5,

2020). As with each other state disaster declaration, the Ohio Disaster

Declaration identified the pandemic conditions warranting the

declaration as “beginning on January 20, 2020, and continuing.” See id.

at 26,703.

The Internal Revenue Service (IRS) subsequently issued a series

of notices in which the stated purpose was to provide relief under section

7508A(a) pursuant to the Nationwide Emergency Declaration. Section

7508A(a) generally gives the Secretary of the Treasury (Secretary) or his

delegate (i.e., the IRS) the discretion to postpone certain tax-related

deadlines for up to one year for those taxpayers he or it determines to

be affected by a federally declared disaster. 4 Included in this series of

IRS notices was I.R.S. Notice 2020-23, 2020-18 I.R.B. 742, which was

issued on April 11, 2020. 5 Among other specified deadline extensions,

Notice 2020-23 extended the deadline for filing a Tax Court petition to

July 15, 2020, for those taxpayers who had a petition due to be filed on

4 When discussing the conferee of discretion in section 7508A(a), we hereinafter

refer to the Secretary and IRS interchangeably. See § 7701(a)(11)(B), (12)(A)(i).

5 Also included in this series were, e.g., I.R.S. Notice 2020-17, 2020-15 I.R.B.

590 (postponing the due date for making federal income tax payments), I.R.S. Notice

2020-18, 2020-15 I.R.B. 590 (postponing the due date for filing federal income tax

returns), and I.R.S. Notice 2020-20, 2020-16 I.R.B. 660 (postponing the due date for

filing federal gift and generation-skipping transfer tax returns and making federal gift

and generation-skipping transfer tax payments).

5

or after April 1, 2020, and before July 15, 2020. Id. at 743–44. Notice

2020-23 specified, however, that it did not provide relief for the period

for filing a petition if that period expired before April 1, 2020. Id. at 744.

On September 2, 2020, respondent filed the Motion on the ground

that the Petition was not filed within the time prescribed by section

6213(a) or section 7502. Section 6213(a) provides, in pertinent part, that

a taxpayer may file a petition with the Court for a redetermination of a

deficiency within 90 days after the notice of deficiency is mailed, not

counting Saturday, Sunday, or a legal holiday in the District of

Columbia as the last day. Section 7502 generally allows a timely mailed

petition to be treated as timely filed.

On October 8, 2020, petitioners filed a Response to respondent’s

Motion. Proceeding pro se, petitioners stated in the Response that they

did not receive a copy of respondent’s Motion and requested a copy.

Thereafter, on October 19, 2020, petitioners filed a First Supplement to

their Response to respondent’s Motion. In the First Supplement,

petitioners stated: “We suggest the Tax Court has jurisdiction to hear

our case, and to mitigate to ‘zero’ the IRS assessment and return the

withheld refunds. We request the Tax Court to set a trial date in

Columbus, OH.”

On November 19, 2020, counsel entered an appearance on

petitioners’ behalf and filed petitioners’ Supplemental Objection to

respondent’s Motion. In that filing, petitioners contended that section

7508A(d) operated in conjunction with the Ohio Disaster Declaration to

extend the deadline to file their Petition. Subsection (d) was added to

section 7508A on December 20, 2019, and made effective with respect to

federally declared disasters declared after that date. Further

Consolidated Appropriations Act, 2020, Pub. L. No. 116-94, div. Q, § 205,

133 Stat. 2534, 3245–46 (2019). On January 13, 2021, the Treasury

Department and the IRS proposed regulations with respect to section

7508A(d). See Prop. Treas. Reg. § 301.7508A-1(g), 86 Fed. Reg. 2607,

2613 (Jan. 13, 2021). On February 12, 2021, respondent filed a reply to

petitioners’ supplemental objection, disputing that section 7508A(d)

applies in this case. On June 11, 2021, the Treasury Department and

the IRS issued final regulations with respect to section 7508A(d). See

Treas. Reg. § 301.7508A-1(g); T.D. 9950, 86 Fed. Reg. 31,146, 31,150

(June 11, 2021). The final regulations were issued following notice and

comment procedures. See T.D. 9950, 86 Fed. Reg. at 31,147; Prop. Treas.

Reg. § 301.7508A-1, 86 Fed. Reg. at 2607–08. In correspondence with

subsection (d), the final regulations were made effective with respect to

6

disasters declared on or after December 21, 2019. See T.D. 9950, 86 Fed.

Reg. at 31,149–50.

On August 29, 2023, the Court ordered the parties to address the

applicability of the final regulations to this case and the deference, if

any, to be given to the regulations. On October 31, 2023, the parties

filed their respective simultaneous briefs. On November 6, 2023, the

Court permitted the parties to file simultaneous answering briefs, which

were filed by respondent and petitioners on November 30, 2023, and

December 1, 2023, respectively.

Respondent contends that the final regulations apply to this case,

they are entitled to deference under Chevron, U.S.A., Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984), and petitioners did

not timely file their Petition under their provisions. Petitioners agree

that Chevron provides the proper framework for the Court to review the

regulations and that the deadline to file their Petition was not extended

under the regulations. They contend, however, that the Petition was

timely filed under all reasonable constructions of section 7508A(d) and

that Treasury Regulation § 301.7508A-1(g)(1) and (2) is invalid.

Discussion

I. The Statutory and Regulatory Text

We first set forth the relevant statutory and regulatory text.

A. Section 7508A

Section 7508A, as in effect when petitioners’ petition was filed,

provided as follows:

Sec. 7508A. Authority to postpone certain deadlines by

reason of Presidentially declared disaster or terroristic or

military actions.

(a) In general.—In the case of a taxpayer determined

by the Secretary to be affected by a federally declared

disaster (as defined by section 165(i)(5)(A)) or a terroristic

or military action (as defined in section 692(c)(2)), the

Secretary may specify a period of up to 1 year that may be

disregarded in determining, under the internal revenue

laws, in respect of any tax liability of such taxpayer—

(1) whether any of the acts described in

paragraph (1) of section 7508(a) were performed

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within the time prescribed therefor (determined

without regard to extension under any other

provision of this subtitle for periods after the date

(determined by the Secretary) of such disaster or

action),

(2) the amount of any interest, penalty,

additional amount, or addition to the tax for periods

after such date, and

(3) the amount of any credit or refund.

(b) Special rules regarding pensions, etc.—In the

case of a pension or other employee benefit plan, or any

sponsor, administrator, participant, beneficiary, or other

person with respect to such plan, affected by a disaster or

action described in subsection (a), the Secretary may

specify a period of up to 1 year which may be disregarded

in determining the date by which any action is required or

permitted to be completed under this title. No plan shall

be treated as failing to be operated in accordance with the

terms of the plan solely as the result of disregarding any

period by reason of the preceding sentence.

(c) Special rules for overpayments.—The rules of

section 7508(b) shall apply for purposes of this section.

(d) Mandatory 60-day extension.—

(1) In general.—In the case of any qualified

taxpayer, the period—

(A) beginning on the earliest incident

date specified in the declaration to which the

disaster area referred to in paragraph (2)

relates, and

(B) ending on the date which is 60 days

after the latest incident date so specified,

shall be disregarded in the same manner as a period

specified under subsection (a).

(2) Qualified taxpayer.—For purposes of this

subsection, the term “qualified taxpayer” means—

(A) any individual whose principal

residence (for purposes of section 1033(h)(4))

is located in a disaster area,

(B) any taxpayer if the taxpayer’s

principal place of business (other than the

business of performing services as an

employee) is located in a disaster area,

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(C) any individual who is a relief

worker affiliated with a recognized

government or philanthropic organization

and who is assisting in a disaster area,

(D) any taxpayer whose records

necessary to meet a deadline for an act

described in section 7508(a)(1) are

maintained in a disaster area,

(E) any individual visiting a disaster

area who was killed or injured as a result of

the disaster, and

(F) solely with respect to a joint return,

any spouse of an individual described in any

preceding subparagraph of this paragraph.

(3) Disaster area.—For purposes of this

subsection, the term “disaster area” has the meaning

given such term under subparagraph (B) of section

165(i)(5) with respect to a Federally declared

disaster (as defined in subparagraph (A) of such

section).

(4) Application to rules regarding pensions.—

In the case of any person described in subsection (b),

a rule similar to the rule of paragraph (1) shall apply

for purposes of subsection (b) with respect to—

(A) making contributions to a qualified

retirement plan (within the meaning of

section 4974(c)) under section 219(f)(3),

404(a)(6), 404(h)(1)(B), or 404(m)(2),

(B) making distributions under section

408(d)(4),

(C) recharacterizing contributions

under section 408A(d)(6), and

(D) making a rollover under section

402(c), 403(a)(4), 403(b)(8), or 408(d)(3).

(5) Coordination with periods specified by the

Secretary.—Any period described in paragraph (1)

with respect to any person (including by reason of

the application of paragraph (4)) shall be in addition

to (or concurrent with, as the case may be) any

period specified under subsection (a) or (b) with

respect to such person.

9

B. Treasury Regulation § 301.7508A-1(g)

The final regulations issued with respect to section 7508A(d) set

forth, in pertinent part, the following rules as to its operation:

Treas. Reg. § 301.7508A-1(g) Mandatory 60-day

postponement—

(1) In general. In addition to (or concurrent with)

the postponement period specified by the Secretary in an

exercise of the authority under section 7508A(a) to

postpone time-sensitive acts by reason of a federally

declared disaster, qualified taxpayers (as defined in section

7508A(d)(2)) are entitled to a mandatory 60-day

postponement period during which the time to perform

those time-sensitive acts is disregarded in the same

manner as under section 7508A(a). The rules of this

paragraph (g)(1) apply with respect to a postponement

period specified by the Secretary under section 7508A(b),

to postpone acts as provided in section 7508A(d)(4). Except

for the acts set forth in paragraph (g)(2) of this section,

section 7508A(d) does not apply to postpone any acts.

(2) Acts postponed. The time-sensitive acts that are

postponed for the mandatory 60-day postponement period

are the acts determined to be postponed by the Secretary’s

exercise of authority under section 7508A(a) or (b). In

addition, in the case of any person described in section

7508A(b), the time-sensitive acts postponed for the

mandatory 60-day postponement period include those

described in section 7508A(d)(4):

(i) Making contributions to a qualified

retirement plan (within the meaning of section

4974(c)) under section 219(f)(3), 404(a)(6),

404(h)(1)(B), or 404(m)(2);

(ii) Making distributions under section

408(d)(4);

(iii) Recharacterizing contributions under

section 408A(d)(6); and

(iv) Making a rollover under section 402(c),

403(a)(4), 403(b)(8), or 408(d)(3).

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II. The Parties’ Contentions, In General

Respondent contends that, because they did not mail their

Petition until March 17, 2020, petitioners failed to file their Petition

within the time prescribed by sections 6213(a) and 7502 and the Court

therefore lacks jurisdiction to redetermine the income tax deficiency

determined for their taxable year 2018. See Hallmark Rsch. Collective

v. Commissioner, 159 T.C. 126 (2022) (reaffirming that a timely filed

petition is a prerequisite to the Court’s exercise of jurisdiction in a

deficiency case); see also Sanders v. Commissioner, No. 15143-22,

161 T.C. (Nov. 2, 2023) (reaffirming the Court’s holding in Hallmark

Rsch. Collective). Petitioners contend that section 7508A(d) entitled

them to an automatic, mandatory postponement of time to file until

March 21, 2020, and that their Petition was therefore timely. The

parties’ dispute centers on the proper interpretation of section 7508A(d)

and whether Treasury Regulation § 301.7508A-1(g)(1) and (2) provides

a valid construction of the statute.

Section 7508A(d)(1) provides that, in the case of any “qualified

taxpayer,” the period beginning on the earliest incident date specified in

the declaration to which the relevant disaster area relates and ending

on the date which is 60 days after the latest incident date so specified

“shall be disregarded in the same manner as a period specified under

[section 7508A(a)].” Section 7508A(d)(2)(A) defines a “qualified

taxpayer” to include an individual whose principal residence is located

in a disaster area. Section 7508A(d)(3), by cross-reference to section

165(i)(5)(A) and (B), defines a disaster area as an area determined by

the President to warrant federal assistance under the Stafford Act.

Petitioners contend that they are qualified taxpayers because they

resided in Ohio at all relevant times.

Petitioners argue that Congress clearly intended section 7508A(d)

to operate in a mandatory and automatic manner and, therefore, the

Secretary’s interpretation of section 7508A(d) fails under Chevron

step 1. Specifically, petitioners contend that section 7508A(d) provides

a mandatory extension of the deadlines and gives no discretion to the

Secretary. In effect, petitioners argue that section 7508A(d)(1) provides

an unambiguously self-executing postponement period that, by virtue of

its “shall be disregarded in the same manner as a period specified under

[section 7508A(a)]” language, incorporates all of the acts referenced by

section 7508A(a). Section 7508A(a) references “any of the acts described

in paragraph (1) of section 7508(a).” Section 7508(a)(1) generally

postpones the time for performing certain tax-related acts, including the

11

filing of a petition with the Court for a redetermination of a deficiency,

for individuals serving in a combat zone for the U.S. Armed Forces. 6 See

§ 7508(a)(1)(C). Petitioners therefore conclude that they were entitled

to an automatic, mandatory 60-day postponement period from

January 20, 2020, the earliest incident date specified in the Ohio

Disaster Declaration, 7 to March 21, 2020, to file their Petition. 8

In reaching this conclusion, petitioners interpret section 7508A(d)

to provide for “a mandatory postponement period for taxpayers affected

6 As in effect when petitioners’ Petition was filed, section 7508(a)(1) provided

11 categories of acts as follows:

(A) Filing any return of income, estate, gift, employment, or

excise tax;

(B) Payment of any income, estate, gift, employment, or excise

tax or any installment thereof or of any other liability to the United

States in respect thereof;

(C) Filing a petition with the Tax Court for redetermination of

a deficiency, or for review of a decision rendered by the Tax Court;

(D) Allowance of a credit or refund of any tax;

(E) Filing a claim for credit or refund of any tax;

(F) Bringing suit upon any such claim for credit or refund;

(G) Assessment of any tax;

(H) Giving or making any notice or demand for the payment of

any tax, or with respect to any liability to the United States in respect

of any tax;

(I) Collection, by the Secretary, by levy or otherwise, of the

amount of any liability in respect of any tax;

(J) Bringing suit by the United States, or any officer on its

behalf, in respect of any liability in respect of any tax; and

(K) Any other act required or permitted under the internal

revenue laws specified by the Secretary . . . .

7 Petitioners suggest that section 7508A(d)(1) does not require that the earliest

and latest specified incident dates be different dates and that, because January 20,

2020, is the only incident date specified in the Ohio Disaster Declaration, it is both the

earliest and latest specified date. Respondent raises no dispute in this regard.

8 Petitioners calculate March 21, 2020, as the 60th day after January 20, 2020.

Because 2020 was a leap year, however, we note that March 20, 2020, is in fact the

60th day after January 20, 2020.

We further note that on February 10, 2023, FEMA and the Department of

Homeland Security amended the “notices of major disaster declarations and related

determinations resulting from the . . . pandemic beginning on January 20, 2020.”

Major Disaster Declarations and Related Determinations: Expiration of COVID-19-

Related Measures, 88 Fed. Reg. 8884 (Feb. 10, 2023). The amendments provided that

“the incident period for all COVID-19 major disaster declarations and the nationwide

emergency declaration will close effective May 11, 2023.” Id. Because these

amendments have no impact on the outcome of this case, we address them no further.

12

by federally declared disasters, separate from but complementing the

discretionary postponement provision in section 7508A(a).” And,

because Treasury Regulation § 301.7508A-1(g)(1) and (2) limits the acts

subject to the mandatory postponement period of section 7508A(d) to

“the acts determined to be postponed by the Secretary’s exercise of

authority under section 7508A(a) or (b),” petitioners construe the

regulations as “nullify[ing] subsection (d), in its entirety, and

convert[ing] a mandatory provision to a permissive provision.”

Contending that the regulations thereby conflict with the statutory

scheme and its legislative purpose, petitioners stake their position that

the regulations are invalid under the Chevron standard.

Respondent contends that the “shall be disregarded in the same

manner as a period specified under [section 7508A(a)]” language of

section 7508A(d)(1) does not clearly provide a self-executing

postponement period for the acts referenced by section 7508A(a) but that

it is instead silent and ambiguous as to the acts to which the mandatory

postponement period applies. To that end, respondent further contends

that the statute is ambiguous in two ways: First, Congress did not

address what specific time-sensitive acts are postponed pursuant to

section 7508A(d), and second, Congress did not directly address

federally declared disasters without an incident date under section

7508A. In respondent’s view, the regulations are necessary to resolve

these ambiguities.

Respondent contends that the regulations provide a permissible

and reasonable construction of the statute that builds upon the

“statutory nexus between the time-sensitive acts in I.R.C. § 7508A(a)

and (d).” Consequently, he concludes that the regulations are entitled

to Chevron deference. Respondent notes that the Secretary did not use

his discretion under section 7508A(a) in response to the Ohio Disaster

Declaration to postpone the time for petitioners to file a petition with

the Court. Instead, he points us to the Nationwide Emergency

Declaration on which the Secretary relied to issue Notice 2020-23.

Because the Secretary relied on the Nationwide Emergency Declaration

rather than the Ohio Disaster Declaration to extend certain timeframes

pursuant to section 7508A(a), respondent argues that the Ohio Disaster

Declaration does not trigger section 7508A(d). In his view, the

regulations implement respondent’s reading of section 7508A(d) and

dictate that the Ohio Disaster Declaration did not extend the time for

petitioners to file their Petition. We disagree.

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III. Chevron Analysis

To interpret section 7508A(d) and consider whether Treasury

Regulation § 301.7508A-1(g)(1) and (2) provides a valid construction of

the statute, we turn to Chevron and its familiar two-step analysis. In

Chevron, the Supreme Court provided the following framework for court

review of an agency’s authoritative construction of a statute:

When a court reviews an agency’s construction of the

statute which it administers, it is confronted with two

questions. First, always, is the question whether Congress

has directly spoken to the precise question at issue. If the

intent of Congress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress. If, however,

the court determines Congress has not directly addressed

the precise question at issue, the court does not simply

impose its own construction on the statute, as would be

necessary in the absence of an administrative

interpretation. Rather, if the statute is silent or ambiguous

with respect to the specific issue, the question for the court

is whether the agency’s answer is based on a permissible

construction of the statute.

Chevron, 467 U.S. at 842–43 (footnotes omitted).

At step 1 of the Chevron analysis, we must therefore ask whether

Congress has directly spoken to the precise question at issue. Id. at 842.

And, if we determine the statute is silent or ambiguous on the point, we

proceed to Chevron step 2 where we ask whether the agency’s answer is

based on a permissible construction of the statute. Id. at 843.

Consequently, we do not ask whether the agency’s statutory

interpretation is the best one possible. See Atl. Mut. Ins. Co. v.

Commissioner, 523 U.S. 382, 389 (1998). Instead, we inquire only

whether the agency made a reasonable policy choice in reaching its

interpretation. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967, 986 (2005); see also Ohio Periodical Distribs., Inc.

v. Commissioner, 105 F.3d 322, 326 (6th Cir. 1997), aff’g T.C. Memo.

1995-496. And we defer to the agency’s interpretation unless it is

“arbitrary, capricious, or manifestly contrary to the statute.” Chevron,

467 U.S. at 843–44; see also Mayo Found. for Med. Educ. & Rsch. v.

United States, 562 U.S. 44 (2011) (confirming that Chevron deference

14

applies to both specific authority and general authority Treasury

regulations).

Turning here to Chevron step 1, we identify the precise question

at issue as whether section 7508A(d) automatically entitles a qualified

taxpayer to a mandatory extension to file a petition with the Tax Court

in the context of a federal disaster declaration containing an incident

date. To determine whether Congress has spoken to this question, we

consider the “plain” and “literal” language of the statute itself, the

specific context in which the language is used, and the broader context

of the statute as a whole. See Robinson v. Shell Oil Co., 519 U.S. 337,

341 (1997); Allen v. United States, 83 F.4th 564, 569 (6th Cir. 2023).

In so doing, we employ the traditional tools of statutory construction,

including the canons of construction. 9 See Chevron, 467 U.S. at 843 n.9;

Gun Owners of Am., Inc. v. Garland, 19 F.4th 890, 904 (6th Cir. 2021);

Sunrise Coop., Inc., 891 F.3d at 656.

Petitioners argue that section 7508A(d) unambiguously provides

a self-executing postponement period for all of the tax-related acts

included in section 7508(a)(1) by cross-reference to section 7508A(a). In

their view, the contrast of the discretionary language of section 7508A(a)

with the mandatory language of section 7508A(d) demonstrates that

Congress intended these tax deadlines to be automatically extended

when it added subsection (d). In support of this view, petitioners provide

on brief the following table to illustrate the distinctions between the

language of subsection (a) and subsection (d)(1): 10

9 The Sixth Circuit has explained that “[w]hen a statute is unambiguous, resort

to legislative history and policy considerations is improper.” Sunrise Coop., Inc. v.

USDA, 891 F.3d 652, 658 (6th Cir. 2018) (quoting Koenig Sporting Goods, Inc. v. Morse

Rd. Co. (In re Koenig), 203 F.3d 986, 988 (6th Cir. 2000)). As we conclude infra that

the statute at issue is unambiguous, we do not consider legislative history in our

application of the canons of construction. See Square D Co. & Subs. v. Commissioner,

118 T.C. 299, 310 n.6 (2002) (“The extent to which extrinsic factors (i.e., factors outside

the statutory language itself) may be considered in step 1 of a Chevron analysis may

not be entirely clear . . . . In light of the position of the Court of Appeals, we do not

consider legislative history as part of our analysis of step 1 of Chevron in the instant

case.”), aff’d, 438 F.3d 739 (7th Cir. 2006).

10 Petitioners reproduced this table from a comment submitted with respect to

the proposed regulations. See Jonathan L. Holbrook & Spencer F. Walters, Comment

on Mandatory 60-Day Postponement of Certain Tax-Related Deadlines by Reason of a

Federally Declared Disaster, at 5 (Mar. 14, 2021), https://www.regulations.gov/

comment/IRS-2021-0002-0008 (choose “Download”).

15

Aspect Subsection (a) [Subsection] (d)(1)

Whether to Discretionary: Automatic:

disregard “the Secretary may specify a period” “the period . . . shall be

disregarded”

How long to Discretionary: “up to 1 year” Automatic:

disregard “beginning on the

earliest incident

[date*] . . . and ending

on the date which is 60

days after the latest

incident date”

For whom to Discretionary: Automatic:

disregard “a taxpayer determined by the “any qualified

Secretary to be affected” taxpayer”

For what Discretionary: Automatic:

purposes to “a period . . . that may be disregarded in “the period . . .

disregard determining . . . any of the acts described in shall[***] be

paragraph (1) of section 7508(a)[**] . . . the disregarded in the

amount of any interest, penalty, additional same manner as a

amount, or addition to tax . . . and the period specified under

amount of any credit or refund” subsection (a)”

*Petitioners’ brief incorrectly omitted this word.

**Petitioners’ brief incorrectly refers to section 7508A(a) here.

***Emphasis added.

According to petitioners, respondent disregards “this clear difference in

language between subsections (a) and (d).”

Respondent, in turn, contends that section 7508A(d) is silent and

ambiguous “in at least two ways . . . . First, Congress did not identify

the time sensitive acts subject to I.R.C. § 7508A(d). Second, Congress

did not specify how the mandatory postponement in I.R.C. § 7508A(d)

applies to a Federal disaster declaration without an incident date.”

Respondent first argues that the statute is ambiguous regarding

whether a taxpayer has an automatic, mandatory postponement period

for filing a Tax Court petition. Respondent contends this is so because,

except for the rules regarding pensions described in section 7508A(d)(4),

subsection (d) does not specify the time-sensitive acts to be postponed

during the mandatory postponement period but only that the period is

to be disregarded “in the same manner as a period specified under

subsection (a).” § 7508A(d)(1). Respondent disagrees with petitioners’

reading of the statute to state that section 7508A(d) requires every act

that the Secretary has discretion to postpone under section 7508A(a) to

be independently postponed for a mandatory period under section

7508A(d), regardless of whether the Secretary actually postponed any

acts under section 7508A(a). According to respondent, this approach

“clearly was not required by the language” of the statute. Respondent

16

also argues that the statute is ambiguous because Congress did not

specify how the mandatory postponement period in section 7508A(d)

applies to a federal disaster declaration without an incident date.

Concluding that the statute is ambiguous for these two reasons,

respondent urges us to move on to Chevron step 2.

A provision will be considered ambiguous where the disputed

language is “reasonably susceptible of different interpretations.”

Nat’l R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470

U.S. 451, 473 n.27 (1985); see also Gun Owners of Am., Inc., 19 F.4th

at 904–05 (“[B]oth terms admit of more than one interpretation—that is,

they are ambiguous.”); All. for Cmty. Media v. FCC, 529 F.3d 763, 778

(6th Cir. 2008); Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1351 (6th Cir.

1994). We conclude that, in the context of a federal disaster declaration

containing an incident date, subsection (d) is not reasonably susceptible

of different interpretations with respect to whether a qualified taxpayer

is automatically entitled to a mandatory extension to file a petition with

the Tax Court. We agree with petitioners that the natural reading of

subsection (d) is that a qualified taxpayer is so entitled.

We first consider the mandatory nature of subsection (d). As the

foregoing chart demonstrates, the mandatory language of subsection (d)

stands in stark contrast to the discretionary language of subsection (a).

Under the discretionary language of section 7508A(a), the Secretary

may specify (1) whether a period is disregarded, (2) how long a period is

disregarded, (3) for whom a period is disregarded, and (4) for what

purposes a period is disregarded. The mandatory language of

subsection (d), however, provides the Secretary no discretion whatsoever

regarding any of these four aspects of the extension. Instead,

subsection (d) provides that, for a defined person, a defined period “shall

be disregarded” in a defined manner. On the basis of the plain and

literal language of the statute, we thus read Congress to have clearly

intended to provide for a postponement period that is mandatory.

See Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 172 (2016)

(“When a statute distinguishes between ‘may’ and ‘shall,’ it is generally

clear that ‘shall’ imposes a mandatory duty.”); see also Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 112

(2012) (describing the “Mandatory/Permissive Canon”).

The heading of subsection (d)—“Mandatory 60-day extension”—

further confirms this reading. As has been established, “the title of a

statute and the heading of a section cannot limit the plain meaning of

the text.” See Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S.

17

519, 528–29 (1947); see also § 7806(b) (providing that no “descriptive

matter relating to the content of this title [shall] be given any legal

effect”). They are, however, “‘tools available for the resolution of a doubt’

about the meaning of a statute.” Almendarez-Torres v. United States,

523 U.S. 224, 234 (1998) (quoting Bhd. of R.R. Trainmen, 331 U.S.

at 529); United States v. Nakhleh, 895 F.3d 838, 841 (6th Cir. 2018)

(quoting Almendarez-Torres, 523 U.S. at 234). In the case of section

7508A(d), the heading is not at any variance with the text. The language

of subsection (d) speaks of the defined postponement period in

mandatory terms, and the heading uses the term “mandatory” itself.

Consequently, this is an instance in which the heading is of some use for

interpretative purposes, and it supports our reading of the statute.

See Caltex Oil Venture v. Commissioner, 138 T.C. 18, 28 (2012); see also

Scalia & Garner, supra, at 221 (describing the “Title-and-Headings

Canon”).

Having established our general understanding that section

7508A(d) creates a mandatory postponement period, we next consider

whether the statute requires that this period automatically extend the

date for filing a Tax Court petition by at least 60 days. Respondent

argues that the statute is silent and hence ambiguous in this regard.

Petitioners, meanwhile, contend that section 7508A(d)(1) provides an

unambiguously self-executing postponement period that, by virtue of

the requirement that the period “shall be disregarded in the same

manner as a period specified under [section 7508A(a)],” incorporates all

of the acts referenced by section 7508A(a), including the deadline to file

a petition with the Tax Court.

Petitioners allow that “[a]t first glance it seems possible” the “in

the same manner” language of subsection (d)(1) could be construed as

ambiguous, referring either to the specific time-sensitive acts which may

be postponed by operation of section 7508A(a) or to the process by which

the Secretary grants a postponement under subsection (a). They argue,

however, that full consideration of the statute makes clear that

respondent’s interpretation conflicts with both the plain wording and

the mandatory and specific nature of subsection (d). Petitioners query:

“Why would Congress provide qualified taxpayers with an automatic

60-day extension, only to have it limited, or even nullified if the

Secretary doesn’t act? That makes no sense.”

We acknowledge that, in other statutory contexts, the phrase “in

the same manner” has been construed as meaning “to use the same

‘methodology and procedures.’” See Nat’l Fed’n of Indep. Bus. v.

18

Sebelius, 567 U.S. 519, 545 (2012) (interpreting the section 5000A(g)(1)

requirement that a “[s]hared responsibility payment” made with respect

to minimum essential healthcare coverage “be assessed and collected in

the same manner” as tax penalties); Michigan v. DeVos, 481 F. Supp. 3d

984, 992 (N.D. Cal. 2020) (interpreting the requirement of Coronavirus

Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, § 18005,

134 Stat. 281, 568 (2020), that local educational agencies receiving

certain funds “provide equitable services in the same manner” as

provided under section 1117 of the Elementary and Secondary

Education Act of 1965). We further acknowledge that the phrase has

also been interpreted as ambiguous. See Ass’n of Irritated Residents v.

EPA, 790 F.3d 934, 948 (9th Cir. 2015) (construing the 42 U.S.C.

§ 7410(k)(6) provision for the correction of an erroneous approval,

disapproval or promulgation by the Environmental Protection Agency

“in the same manner as” such approval, disapproval, or promulgation as

ambiguous with respect to whether the phrase imposed a procedural or

substantive requirement); see also Swallows Holding, Ltd. v.

Commissioner, 515 F.3d 162, 171 (3d Cir. 2008) (construing the section

882(c)(2) requirement that certain returns be filed “in the manner

prescribed in subtitle F” as ambiguous with respect to whether the term

“manner” included an element of timeliness), vacating and remanding

126 T.C. 96 (2006). Upon conducting the required consideration of the

plain and literal language of section 7508A(d), the specific context in

which the language is used, and the broader context of the statute as a

whole, however, we conclude that the “in the same manner” language of

this statute is not “reasonably susceptible” of being interpreted to refer

to the process or procedure by which the Secretary grants a

postponement under subsection (a) or of demonstrating any ambiguity;

instead, it provides for an unambiguously self-executing postponement

period that incorporates all of the acts referenced by section 7508A(a).

To understand the requirement that the subsection (d)

postponement period “shall be disregarded in the same manner as a

period specified under subsection (a),” we necessarily look to section

7508A(a). Section 7508A(a) provides, in pertinent part: “In the case of a

taxpayer determined by the Secretary to be affected by a federally

declared disaster . . . , the Secretary may specify a period of up to 1 year

that may be disregarded in determining . . . whether any of the acts

described in paragraph (1) of section 7508(a) were performed within the

time prescribed therefor.” When we read the “shall be disregarded”

language of subsection (d) in this context, the manner in which the

subsection (d) postponement period must be treated becomes readily

apparent. More specifically, the mandatory postponement period “shall

19

be disregarded” “in determining, . . . whether any of the acts described

in paragraph (1) of section 7508(a) were performed within the time

prescribed therefor.”

The plain and literal language of subsections (a) and (d) read

together demonstrates that the deadlines for “any of the acts” described

in section 7508(a)(1) “may” be disregarded under section 7508A(a) but

that those deadlines “shall be disregarded” under section 7508A(d).

Petitioners and respondent appear to agree that the “may” language of

section 7508A(a) provides the Secretary with the discretion to postpone

deadlines for any or all of the categories of acts identified by section

7508(a)(1). They dispute only whether the “in the same manner”

language carries this discretion over to the mandatory postponement

period set forth by subsection (d) (or is simply silent on the matter). But,

we see neither ambiguity nor silence in subsection (d) on the point.

Instead, we see a near mirror image of section 7508(a).

Section 7508(a) provides that, for a defined person, a defined

period “shall be disregarded” in a defined manner, i.e., in determining

whether “any of the . . . acts [described in its paragraph (1)] was

performed within the time prescribed therefor.” We have readily

construed that provision as requiring an extension of the time that

includes a postponement of the period to file a petition with this Court.

See Stone v. Commissioner, 73 T.C. 617, 620–21 (1980) (“Section

7508(a)(1)(C) excludes the period during which a member of the Armed

Forces is present in a ‘combat zone’ in determining the time allowable

for the filing of a petition with the Tax Court for a redetermination of a

deficiency.”); Munoz v. Commissioner, T.C. Memo. 2000-18, 79 T.C.M.

(CCH) 1366, 1367 (“Section 7508(a)(1)(C) serves to extend the normal

90-day . . . period within which a petition must generally be filed by

disregarding the time when a member of the Armed Forces is present in

a combat zone . . . .”); see also, e.g., Hampton v. United States, 513 F.2d

1234, 1246 (Ct. Cl. 1975) (“A Serviceman in combat is also given an

automatic extension of time to perform certain acts under the revenue

laws by virtue of § 7508 of the Code. . . . The postponement authorized

under § 7508 generally applies to the filing of returns, the payment of

any tax, the assessment of any tax, and the commencement of any

suit.”). We read the language and context of section 7508A(d) to lend

itself just as readily to the same interpretation.

We also view the coordination provision of section 7508A(d)(5) as

further bolstering this interpretation. Subsection (d)(5) provides that

“[a]ny period described in [subsection (d)](1) with respect to any person

20

(including by reason of the application of [subsection (d)](4)) shall be in

addition to (or concurrent with, as the case may be) any period specified

under subsection (a) . . . with respect to such person.” We read the broad

and inclusive language of this subsection to allow a mandatory

extension described under section 7508A(d) to operate independently

from any discretionary extension specified under section 7508A(a).

Having given full consideration to section 7508A(d) and its

context, we must agree with petitioners that respondent’s interpretation

conflicts with both the plain wording and the mandatory and specific

nature of subsection (d). Postponement of any section 7508(a)(1) act

would not be mandatory if it needed to be triggered by a discretionary

act of the Secretary, who could use his discretion not to act at all.

Instead, we think Congress’s intent is clear. For a defined person

(a “qualified taxpayer”), a defined period (“beginning on the earliest

incident date . . . and . . . ending on the date which is 60 days after the

latest incident date”) “shall be disregarded in the same manner as a

period specified under subsection (a)” of section 7508A, that is by

mandatorily and automatically disregarding “whether any of the acts

described in paragraph (1) of section 7508(a),” including the act of filing

a petition with the Court, “were performed within the time prescribed

therefor.” 11

Respondent also contends that the statute is ambiguous because

it does not address federally declared disasters without an incident date.

In support of this contention, respondent points to the Nationwide

Emergency Declaration that did not specify an incident date.

Respondent contends that “Congress did not address whether the

mandatory 60-day postponement in subsection (d) applies to Federal

disaster declarations that do not have an incident date. Therefore,

I.R.C. § 7508A(d) is ambiguous with respect to Federal disaster

declarations without an incident date, which satisfies the first step in

the Chevron framework.”

Petitioners, however, do not argue that they are entitled to a

60-day postponement with respect to the Nationwide Emergency

Declaration. Instead, petitioners focus on the Ohio Disaster

11 Recall that a qualified taxpayer, in addition to one who principally resides

in a disaster area, is defined to include, inter alia, “any taxpayer whose records

necessary to meet a deadline for an act described in section 7508(a)(1) are maintained

in a disaster area.” § 7508A(d)(2)(D). This definition, which appears to sweep in

records with respect to all of the categories described by section 7508(a)(1), offers

additional and noteworthy context.

21

Declaration, which determined “that the emergency conditions in the

State of Ohio resulting from the [COVID-19] pandemic beginning on

January 20, 2020, and continuing, are of sufficient severity and

magnitude to warrant a major disaster declaration under the [Stafford

Act].” The precise question at issue here addresses the context of a

federal disaster declaration containing an incident date, and we

conclude that Congress has directly spoken to that precise question. See

Chevron, 467 U.S. at 842.

Petitioners’ situation demonstrates that the Court’s reading of

section 7508A(d) does not render section 7508A(a) a nullity. Instead, by

giving effect to every word that Congress used in the statute, it protects

taxpayers like them with the required “mandatory 60-day extension”

while the Secretary considers whether and how to exercise his discretion

under subsection (a). See Lowe v. SEC, 472 U.S. 181, 207 n.53 (1985);

see also Scalia & Garner, supra, at 174 (describing the “Surplusage

Canon”). Having concluded that section 7508A(d) unambiguously

provides for a mandatory, automatic extension of at least 60 days for the

time to file a petition with the Tax Court, we conclude that deference to

Treasury Regulation § 301.7508A-1(g)(1) and (2) is unwarranted, and

we hold Treasury Regulation § 301.7508A-1(g)(1) and (2) invalid to the

extent it limits the non-pension-related “time-sensitive acts that are

postponed for the mandatory 60-day postponement period . . . [to] the

acts determined to be postponed by the Secretary’s exercise of authority

under section 7508A(a).” 12 See Chevron, 467 U.S. at 842–43.

Respondent’s regulation, promulgated after the petition in this

case was filed, cannot change the result dictated by an unambiguous

statute. See, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021)

(“[A]s this Court has long made plain, pleas of administrative

inconvenience and self-serving regulations never ‘justify departing from

the statute’s clear text.’” (quoting Pereira v. Sessions, 138 S. Ct. 2105,

2118 (2018)); Chevron, 467 U.S. at 842–43 (“If the intent of Congress is

clear, that is the end of the matter; for the court, as well as the agency,

must give effect to the unambiguously expressed intent of Congress.”).

We do not reach Chevron step 2.

12 The parties do not address the validity of Treasury Regulation § 301.7508A-

1(g)(1) and (2) as to section 7508A(b) and (d)(4), and their pension-related provisions;

accordingly, in reaching this holding, neither do we.

22

IV. Conclusion

As in effect when petitioners’ Petition was filed, section

7508A(d)(1) provided that, in the case of any “qualified taxpayer,” the

period beginning on the earliest incident date specified in the

declaration to which the relevant disaster area relates, and ending on

the date which is 60 days after the latest incident date so specified,

“shall be disregarded in the same manner as a period specified under

[section 7508A(a)].” We have determined this language provides for an

automatic and mandatory postponement period that incorporates all of

the acts referenced by section 7508A(a), including the filing of a Tax

Court petition for the redetermination of a deficiency, and interpret it to

do so. The parties do not dispute that petitioners resided in Ohio at all

relevant times. See § 7508A(d)(2). Petitioners are therefore qualified

taxpayers entitled to an automatic 60-day postponement period starting

from January 20, 2020, the earliest incident date specified in the Ohio

Disaster Declaration, to at least March 20, 2020, to file their Petition. 13

The parties agree that petitioners mailed their petition to the Court on

March 17, 2020. As petitioners’ Petition was mailed on March 17, 2020,

their Petition was timely and we have jurisdiction in this case.

See § 7502. We will therefore deny respondent’s Motion.

We have considered the parties’ other arguments and, to the

extent they are not discussed herein, find them to be irrelevant, moot,

or without merit.

To reflect the foregoing,

An appropriate order will be issued.

13 See supra notes 7–8. We need not, and therefore do not, express a view on

what the outer limits of the extension period may be where a declaration omits an

ending date or is extended. See Stromme v. Commissioner, 138 T.C. 213, 218 n.8

(2012). We note, however, that effective with respect to federally declared disasters

declared after November 15, 2021, the extension period has been redefined to end “on

the date which is 60 days after the later of . . . [the] earliest incident date . . . or the

date such declaration was issued.” See Infrastructure Investment and Jobs Act,

Pub. L. No. 117-58, § 80501, 135 Stat. 429, 1335 (2021).

23

Reviewed by the Court.

KERRIGAN, FOLEY, BUCH, NEGA, PUGH, ASHFORD, URDA,

COPELAND, JONES, TORO, GREAVES, and WEILER, JJ., agree with

this opinion of the Court.

BUCH, J., concurring.

JONES, J., concurring.

24

BUCH, J., concurring: I join the opinion of the Court with only a

few additional observations. Following the parties’ lead, the opinion of

the Court reviews the issue before us under the familiar Chevron two-

step framework, Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467

U.S. 837 (1984), and correctly concludes under that framework that

Treasury Regulation § 301.7508A-1(g) is invalid to the extent it limits

the acts subject to the mandatory postponement period of section

7508A(d). I note, however, that the continued viability of Chevron is

under review. See Relentless, Inc. v. Dep’t of Com., 144 S. Ct. 325 (2023)

(granting certiorari for the question of whether the Supreme Court

should overrule Chevron). And we could reach the same conclusion

without our heavy reliance on Chevron.

Over a century of precedent supports the unremarkable

proposition that “[a] regulation to be valid must be reasonable and must

be consistent with law.” Int’l Ry. Co. v. Davidson, 257 U.S. 506, 514

(1922). Before Chevron, it was clear that “regulations, in order to be

valid, must be consistent with the statute under which they are

promulgated.” United States v. Larionoff, 431 U.S. 864, 873 (1977).

In recent years, the Supreme Court has held regulations to be

inapplicable with only a fleeting reference to Chevron, see, e.g., Sturgeon

v. Frost, 139 S. Ct. 1066, 1080 n.3 (2019), or without referencing Chevron

at all, see, e.g., Niz-Chavez v. Garland, 141 S. Ct. 1474, 1485 (2021). And

the Supreme Court has specifically stated that it “need not resort to

Chevron deference . . . [when] Congress has supplied a clear and

unambiguous answer to the interpretive question at hand.” Pereira v.

Sessions, 138 S. Ct. 2105, 2113 (2018).

Regardless of whether the Supreme Court continues to adhere to

or overrules Chevron, we would reach the same conclusion here. The

Petition is timely under the mandatory postponement period of

section 7508A(d), and Treasury Regulation § 301.7508A-1(g) cannot

change that result.

NEGA, ASHFORD, URDA, COPELAND, TORO, and GREAVES,

JJ., agree with this concurring opinion.

25

JONES, J., concurring: I join the opinion of the Court in full.

I write separately to underscore the consistency of the Court’s analysis

in Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022),

and Sanders v. Commissioner, No. 15143-22, 161 T.C. (Nov. 2, 2023),

with our holding here as well as the overall statutory scheme,

particularly the Anti-Injunction Act (AIA).

I. Section 6213(a): Deficiency Jurisdiction

The debate over the nature of the procedural requirement in

section 6213(a) has intensified in the wake of the Supreme Court’s

decision in Boechler, P.C. v. Commissioner, 142 S. Ct. 1493 (2022).

Therein, the Supreme Court held that section 6330(d)(1)—the statute

that imposes the procedural requirement for filing a petition with the

Tax Court in a collection due process case—is a nonjurisdictional

deadline subject to equitable tolling. Boechler, P.C. v. Commissioner, 142

S. Ct. at 1501. In doing so, the Supreme Court rejected the

Commissioner’s argument that the express jurisdictional text of section

6330(e)(1) suggested that the deadline under section 6330(d)(1) was also

jurisdictional. Boechler, P.C. v. Commissioner, 142 S. Ct. at 1499–500.

The Supreme Court stated that while there were indicia that the

Commissioner’s interpretation may have been the better one, there was

not a clear expression from Congress and the arguments highlighted the

lack of clarity in the statute. Id. at 1499. Because section 6330(d)(1) was

susceptible to multiple plausible interpretations, there was not a clear

expression from Congress to imbue jurisdictional consequences.

Boechler, P.C. v. Commissioner, 142 S. Ct. at 1498. Thus, the Supreme

Court held that the statute is not jurisdictional. Id. at 1501.

Section 6213 is arguably similar to section 6330. Accordingly, in

Hallmark, this Court was asked to consider the jurisdictional nature of

section 6213(a) in light of the Supreme Court’s decision in Boechler. See

Hallmark Rsch. Collective, 159 T.C. at 126. We held that the 90-day

deficiency deadline under section 6213(a) is jurisdictional, and therefore

not subject to equitable tolling. Hallmark Rsch. Collective, 159 T.C.

at 166–67. In doing so, the Court principally relied on the prior-

construction canon and the lengthy “history of reenactments of and

amendments to section 6213(a) [that] demonstrate[d] that Congress’s

intention [was] to provide an adequate but strict timeframe within

which a taxpayer may file a deficiency petition in the Tax Court.” Id.

at 161; see Sanders, 161 T.C., slip op. at 7 (describing the prior-

construction canon as the principal ground of our decision in Hallmark).

26

However, in Culp v. Commissioner, 75 F.4th 196, 205 (3d Cir.

2023), petition for cert. filed, No. 23-1037 (U.S. Mar. 19, 2024), the U.S.

Court of Appeals for the Third Circuit held that the 90-day deadline to

petition for redetermination of a tax deficiency is a nonjurisdictional

deadline subject to equitable tolling. The Third Circuit relied

significantly on the Supreme Court’s analysis in Boechler. See Culp v.

Commissioner, 75 F.4th at 200–04 (citing Boechler throughout the

opinion). Highlighting the similarities between section 6330(d)(1) and

section 6213(a), the Third Circuit reasoned that “[i]f the § 6330(d)(1)

deadline in Boechler fell short of being jurisdictional, § 6213(a)’s limit

must as well.” Culp v. Commissioner, 75 F.4th at 201. The Court stated

that there is no “clear tie between the deadline and the jurisdictional

grant,” id. at 201–02 (quoting Boechler, P.C. v. Commissioner, 142 S. Ct.

at 1499), and that the remote possibility of a dismissal for untimeliness

having preclusive effect in a section 7422 refund suit “does little to

bolster the IRS’s case for the deadline being jurisdictional,” Culp v.

Commissioner, 75 F.4th at 202; see also § 7459(d).

Thereafter, in Sanders, this Court was tasked with “thoroughly

reconsider[ing] the problem in the light of the reasoning of the reversing

appellate court and, if convinced thereby, . . . follow[ing] the higher

court.” Sanders, 161 T.C., slip op. at 6 (quoting Lawrence v.

Commissioner, 27 T.C. 713, 716–17 (1957), rev’d on other grounds, 258

F.2d 562 (9th Cir. 1958)). In doing so, we declined to follow the Third

Circuit’s interpretation and reaffirmed our decision in Hallmark to

conclude that section 6213(a) imposes a jurisdictional deadline in all

cases except those appealable to the Third Circuit. Sanders, 161 T.C.,

slip op. at 7–8. 1

Today, the opinion of the Court holds that section 7508A(d)

provides for an unambiguously self-executing postponement period for

certain acts set forth in section 7508(a), including the filing of a petition

for redetermination with the Tax Court. § 7508(a)(1)(C); see op. Ct. p. 18.

This position is consistent with the Court’s prior decisions in Hallmark

and Sanders that the deadline under section 6213(a) is jurisdictional,

because unlike equitable exceptions, statutory exceptions to

jurisdictional deadlines are of course permissible. Moreover, our prior

decisions in Hallmark and Sanders are further undergirded by the

1 The Solicitor General recently filed a petition for a writ of certiorari in Culp,

asking the Supreme Court to review and reverse the Third Circuit’s decision. Petition

for Writ of Certiorari at 10, Commissioner v. Culp, No. 23-1037 (U.S. Mar. 19, 2024).

As of this writing, a response is due on April 18, 2024.

27

jurisdictional nature of the AIA, codified under section 7421(a), as

I explain below.

II. Section 7421(a): The Anti-Injunction Act

The AIA was first enacted in 1867, and it has remained

continuously in effect and largely unamended since then. Bob Jones

Univ. v. Simon, 416 U.S. 725, 731 n.6 (1974) (comparing text of Act of

Mar. 2, 1867, ch. 169, § 10, 14 Stat. 471, 475, with section 7421(a)). Now

codified in section 7421(a), the statute provides:

Except as provided in sections 6015(e), 6212(a) and (c),

6213(a), 6232(c), 6330(e)(1), 6331(i), 6672(c), 6694(c),

7426(a) and (b)(1), 7429(b), and 7436, no suit for the

purpose of restraining the assessment or collection of any

tax shall be maintained in any court by any person,

whether or not such person is the person against whom

such tax was assessed.

For those who consider legislative history relevant, Warger v. Shauers,

574 U.S. 40, 48 (2014), the AIA has no recorded legislative history, “but

its language could scarcely be more explicit,” Bob Jones Univ., 416 U.S.

at 736. The Supreme Court has interpreted the principal purpose of the

AIA as the “protection of the Government’s need to assess and collect

taxes as expeditiously as possible with a minimum of preenforcement

judicial interference, ‘and to require that the legal right to the disputed

sums be determined in a suit for refund.’” Id. at 736–37 (quoting Enochs

v. Williams Packing & Navigation Co., 370 U.S. 1, 7 (1962)). In short,

“[t]he object of [section] 7421(a) is to withdraw jurisdiction from the

state and federal courts to entertain suits seeking injunctions

prohibiting the collection of federal taxes.” 2 Williams Packing &

Navigation Co., 370 U.S. at 5.

Historically, the government has had broad power to collect taxes,

and the AIA has served as a critical component of the statutory scheme

2 The AIA does not apply in every situation, but rather the AIA “kicks in when

the target of a requested injunction is a tax obligation—or stated in the Act’s language,

when that injunction runs against the ‘collection or assessment of [a] tax.’” CIC Servs.,

LLC v. IRS, 141 S. Ct. 1582, 1590 (2021). Where a suit does not run against a tax at

all, the AIA has no applicability. Id. at 1593. A suit seeking relief from a separate legal

mandate that is only backed up by a tax provision is not a dispute over taxes.

Id.; see also Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519, 543–44 (2012)

(distinguishing between a “tax” and a “penalty”).

28

by limiting the power of taxpayers to seek pre-enforcement judicial

review. See § 7421(a). “Because of the Anti-Injunction Act, taxes can

ordinarily be challenged only after they are paid, by suing for a refund,”

NFIB, 567 U.S. at 543 (citing Williams Packing & Navigation Co., 370

U.S. at 7–8), and several courts have characterized the constraints of

the AIA as jurisdictional, see Bob Jones Univ., 416 U.S. at 749. The AIA

has “almost literal effect,” thereby depriving courts of jurisdiction over

any suit for the purpose of restraining the assessment or collection of

any tax. Id. at 737, 749; see also Maze v. IRS, 862 F.3d 1087, 1091 (D.C.

Cir. 2017); Cohen v. United States, 650 F.3d 717, 729 (D.C. Cir. 2011).

In Williams Packing & Navigation Co., 370 U.S. at 7, the Supreme Court

stated that if the judicial exception to the AIA did not apply then “the

District Court is without jurisdiction, and the complaint must be

dismissed.” And more recently, at least two courts of appeals have stated

that the AIA is jurisdictional. See Rocky Branch Timberlands LLC v.

United States, No. 22-12646, 2023 WL 5746600, at *1 (11th Cir. Sept. 6,

2023) (“When the Anti-Injunction Act applies, it deprives federal courts

of jurisdiction.” (quoting United Mine Workers of Am. Combined Benefit

Fund v. Toffel (In re Walter Energy, Inc.), 911 F.3d 1121, 1136 (11th Cir.

2018)), cert. denied, No. 23-614, 2024 WL 674784 (U.S. Feb. 20, 2024);

Optimal Wireless LLC v. IRS, 77 F.4th 1069, 1073 (D.C. Cir. 2023)

(stating that the AIA “‘deprive[s] the District Court of jurisdiction’ when

it applies” (alteration in original) (quoting Bob Jones Univ., 416 U.S.

at 749)).

III. The Relationship Between Sections 6213(a) and 7421(a)

When considering the procedural requirement imposed by section

6213(a), we must consider the “text, context, and relevant historical

treatment” of the provision. Reed Elsevier, Inc. v. Muchnick, 559 U.S.

154, 166 (2010). While Congress must make a clear statement

evidencing the procedural requirement’s jurisdictional effect, see id.,

Congress need not “make its clear statement in a single section or in

statutory provisions enacted at the same time,” Dep’t of Agric. Rural

Dev. Rural Hous. Serv. v. Kirtz, 144 S. Ct. 457, 466 (2024) (quoting Kimel

v. Fla. Bd. of Regents, 528 U.S. 62, 76 (2000)). The relationship between

sections 6213(a) and 7421(a) provides important context when

considering the jurisdictional nature of section 6213(a) and reveals

Congress’s clear expression of the statute’s jurisdictional effect.

To better protect taxpayers’ rights, Congress established what is

now section 6213(a) as a limited exception to the AIA. Revenue Act of

1924, ch. 234, § 274, 43 Stat. 253, 297. Thus, 57 years after enacting the

29

AIA, Congress amended the statutory scheme to create a limited

exception to the default rule, which permits a taxpayer to sustain a

challenge to taxes only after the amounts are paid and the taxpayer sues

for a refund. Compare Act of Mar. 2, 1867, § 10, 14 Stat. at 475, with

Revenue Act of 1924, § 274, 43 Stat. at 297. See also § 7422; Williams

Packing & Navigation Co., 370 U.S. at 7–8; Hallmark Rsch. Collective,

159 T.C. at 134. In a deficiency proceeding before this Court, taxpayers

are afforded the opportunity to seek prepayment de novo review of the

IRS’s deficiency determination. Hallmark Rsch. Collective, 159 T.C. at

134, 165. But review under section 6213 occurs within the broader

statutory scheme that is framed by the jurisdictional constraints of the

AIA, codified under section 7421(a).

Specifically, section 7421(a) provides: “Except as provided in

section[] . . . 6213(a), . . . no suit for the purpose of restraining the

assessment or collection of any tax shall be maintained in any court by

any person.” And section 6213(a) provides: “Within 90 days, or 150 days

if the notice is addressed to a person outside the United States, after the

notice of deficiency authorized in section 6212 is mailed . . . , the

taxpayer may file a petition with the Tax Court for a redetermination of

the deficiency.”

If a “taxpayer does not file a petition with the Tax Court within

the time prescribed in subsection (a) [of section 6213, i.e., within the 90

or 150-day deadline], the deficiency, notice of which has been mailed to

the taxpayer, shall be assessed, and shall be paid upon notice and

demand from the Secretary.” § 6213(c). A taxpayer’s failure to file suit

within the prescribed period triggers the Government’s duty to assess

and collect the tax. See id.; see also Hallmark Rsch. Collective, 159 T.C.

at 161–62 n.29. Thus, any suit subsequently filed with the Tax Court

(such as one sustained through the application of equitable tolling)

would restrain the government’s ability to assess a tax that it had the

right to assess when the taxpayer failed to timely petition the Court. 3

Such a suit would therefore exceed the jurisdictional limits imposed by

section 6213(a) and the AIA and violate the restrictions imposed by the

AIA. See § 7421(a); Bob Jones Univ., 416 U.S. at 736–37 (citing Williams

Packing & Navigation Co., 370 U.S. at 7).

3 By contrast, the Court’s holding here does not raise such a concern, because

section 7508A(d) provides a statutory extension to the section 6213(a) deadline. Suits

filed timely under section 7508A(d) are therefore filed “as provided in section[] . . .

6213(a)” for purposes of the AIA. § 7421.

30

IV. Conclusion

But for the limited exceptions provided therein, section 7421

provides that “no suit for the purpose of restraining the assessment or

collection of any tax shall be maintained in any court by any person.”

The foregoing demonstrates that the opinion of the Court is consistent

with the Court’s analysis in Hallmark and Sanders, as well as the

context of the statutory framework established by the AIA.

BUCH, NEGA, URDA, COPELAND, and TORO, JJ., agree with

this concurring opinion.

GREAVES, J., agrees with Part I of this concurring opinion.