United States Tax Court

United States Tax Court

161 T.C. No. 4

ORGANIC CANNABIS FOUNDATION, LLC, 1

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket Nos. 381-22L, 5442-22L.

Filed September 27, 2023.

—————

P has unpaid tax for 2010, 2011, and 2018. R issued

notices of federal tax lien filings to P for all three years.

P timely requested a hearing with the Internal Revenue

Service Independent Office of Appeals (Appeals) during the

30-day period for requesting a collection due process (CDP)

hearing under I.R.C. § 6320(a)(3)(B) (30-day period) for

2010 and 2011 but requested a hearing for 2018 after the

30-day period. Appeals provided a CDP hearing for 2010

and 2011. Appeals determined that P’s hearing request for

2018 was untimely and provided an equivalent hearing

under Treas. Reg. § 301.6320-1(i)(1). Appeals issued a

Notice of Determination for 2010 and 2011 that did not

contain a determination for 2018. P filed a Petition seeking

review for all 3 years. After the Petition was filed, Appeals

issued a Decision Letter for 2018.

R moved to dismiss as to 2018 for lack of jurisdiction

on the ground that Appeals did not make a determination

for us to review under I.R.C. § 6330(d)(1). P argues that the

30-day period for requesting a CDP hearing under I.R.C.

1 Petitioner has sought review for 2018 in both docket numbers. Docket No.

381-22L results from a notice of determination for 2010 and 2011 in which the Appeals

officer refers to 2018, and Docket No. 5442-22L concerns a Petition to review a decision

letter issued for 2018.

Served 09/27/23

2

§ 6320(a)(3)(B) should be equitably tolled. P further argues

that Appeals should have made a determination for 2018

for this Court to review. R argues that the 30-day period is

a fixed deadline that is not amenable to equitable tolling.

Held: Appeals has authority under I.R.C. § 6320 to

hold hearings when the taxpayer files a request after the

30-day period set forth in I.R.C. § 6320(a)(3)(B).

Held, further, the Treasury regulations under I.R.C.

§ 6320 do not preclude application of the doctrine of

equitable tolling to the 30-day period.

Held, further, the 30-day period is subject to

equitable tolling where the circumstances warrant it.

Held, further, Kennedy v. Commissioner, 116 T.C.

255 (2001), is overruled to the extent that it holds that

Appeals is not authorized to waive the 30-day period under

I.R.C. § 6320(a)(3)(B) and is not obliged to provide a CDP

hearing where the circumstances warrant equitable tolling

of the 30-day period.

—————

Christian A. Speck, Robin Lesley Klomparens, and Douglas L. Youmans,

for petitioner in docket No. 381-22L.

Christian A. Speck, for petitioner in docket No. 5442-22L.

Erik W. Nelson, Daniel G. Kester, Adriana E. Vargas, Alexander M.

Short, and Patsy A. Clarke, for respondent in docket No. 381-22L.

Erik W. Nelson, Adriana E. Vargas, Alexander M. Short, and Patsy A.

Clarke, for respondent in docket No. 5442-22L.

OPINION

GOEKE, Judge: When the Internal Revenue Service (IRS) files a

notice of federal tax lien (NFTL) on a taxpayer’s property to collect an

unpaid assessment, the Internal Revenue Code gives the taxpayer the

right to a collection due process (CDP) hearing with the IRS

3

Independent Office of Appeals (Appeals). § 6320(a) and (b). 2 The Code

requires that the IRS notify the taxpayer in writing of the NFTL filing

within five business days of the NFTL filing (5-day notice period) and

inform the taxpayer that it has the right to request a CDP hearing

during a 30-day period beginning on the day after the 5-day notice period

(30-day period). § 6320(a)(1), (3)(B). In these CDP cases respondent has

moved to dismiss as to the taxable year 2018 for lack of jurisdiction on

the grounds that Appeals did not make a determination for 2018 because

petitioner requested a CDP hearing untimely. 3

Our precedent has construed the 30-day period for requesting a

CDP hearing as a fixed deadline. In Kennedy v. Commissioner, 116 T.C.

255, 262 (2001), we held that Appeals is not authorized to waive the

30-day period for requesting a CDP hearing and that Appeals is not

required to provide a CDP hearing requested after the 30-day period. In

Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1501 (2022), the

Supreme Court held that a different 30-day period in section 6330(d)(1)

for a taxpayer to file a petition with this Court for review of Appeals’

determination following a CDP hearing is a nonjurisdictional deadline

that is subject to equitable tolling. Thereafter, in Hallmark Research

Collective v. Commissioner, 159 T.C. 126 (2022), we distinguished

Boechler in holding that the 90-day deadline for filing a deficiency

petition under section 6213(a) is jurisdictional. In the light of the

Supreme Court’s decision in Boechler and our opinion in Hallmark, we

reexamine our precedent as to the 30-day deadline in section

6320(a)(3)(B) for requesting a CDP hearing. We overrule Kennedy to the

extent that it holds that the 30-day period for requesting a CDP hearing

is a fixed deadline that is not amenable to equitable tolling. We hold that

the 30-day period in section 6320(a)(3)(B) is subject to equitable tolling.

Background

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

Motion papers, and the Declarations and Exhibits attached thereto.

Petitioner, Organic Cannabis Foundation, LLC, is a California limited

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

Code, Title 26 U.S.C. (Code), in effect at all relevant times, and regulation references

are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant

times.

3 These cases have been consolidated for trial with the cases at docket

Nos. 26889-16, 26890-16, 26891-16, 21033-18, 21034-18, 21035-18, 24708-21L, and

5442-22L. As explained further herein, the collection action for 2018 is also at issue in

Docket No. 5442-22L, but the parties have not filed any motions in that case.

4

liability company that elected to be taxed as a corporation. Its sole

member is Northern California Small Business Assistants, Inc. When

the Petition was filed, petitioner’s principal place of business was in

California.

Petitioner has unpaid income tax for 2010 and 2011 that was

assessed as deficiencies following the issuance of a notice of deficiency

and an untimely filed petition which this Court dismissed by order for

lack of jurisdiction. See Organic Cannabis Found., LLC v.

Commissioner, 962 F.3d 1082 (9th Cir. 2020). Petitioner has unpaid

income tax for 2018 that it reported on its 2018 tax return and unpaid

penalties.

On April 16, 2019, respondent issued to petitioner a notice of the

filing of an NFTL for 2010 and 2011, and petitioner timely requested a

CDP hearing during the 30-day period under section 6320(a)(3)(B). On

March 15, 2021, respondent filed an NFTL for unpaid 2018 tax with the

Recorder Office of Sonoma County, California. On March 16, 2021,

respondent issued to petitioner a notice of the NFTL filing for 2018 (2018

notice). The 2018 notice states that the deadline for requesting a CDP

hearing was April 22, 2021, although the computation of the 30-day

period under the statute would set the deadline as April 21, 2021,

measured from the March 15, 2021, filing date. Respondent states that

the April 22, 2021, deadline was incorrect but concedes that he issued a

notice which gave petitioner the right to request a CDP hearing by April

22, 2021.

On April 23, 2021, petitioner submitted a CDP hearing request

for 2018 by fax and by certified mail. Respondent has conceded that

petitioner requested the CDP hearing on April 23, 2021, and has treated

the request as filed on that date. See § 7502. Accordingly, the request

was filed one day after the deadline set forth in the 2018 notice. Appeals

determined that the hearing request was untimely on the basis of the

April 22, 2021, deadline, and provided petitioner with an equivalent

hearing under Treasury Regulation § 301.6320-1(i)(1), which petitioner

had requested as an alternative to the CDP hearing. 4 The equivalent

hearing was combined with the CDP hearing for 2010 and 2011 so that

the three years could be considered jointly. The combined hearing was

4 We understand, and respondent has not asserted otherwise, that petitioner

raised the issue of the timeliness of its 2018 CDP hearing request before Appeals. It is

inappropriate for us to decide whether the circumstances of these cases warrant

equitable tolling until we address whether Boechler requires us to overrule our

precedent that has held that the 30-day period is a fixed deadline not subject to waiver.

5

held on September 17, 2021, and included discussion of all three years.

Thereafter, petitioner did not provide financial information that the

Appeals officer had requested or submit an offer-in-compromise as a

collection alternative.

On December 13, 2021, Appeals issued a Notice of Determination

sustaining the filing of the 2010 and 2011 NFTLs. The header on the

Notice of Determination listed the years at issue as 2010, 2011, and “Due

Process – EH Levy – 2018.” EH is a commonly used acronym for

“equivalent hearing.” See Internal Revenue Manual Exhibit 8.22.4-3

(May 12, 2022). The header is the only time that 2018 is mentioned in

the Notice of Determination. An attachment to the Notice of

Determination contains the Appeals officer’s summary and

recommendations and refers only to 2010 and 2011 and petitioner’s

unpaid assessments for those years.

On January 11, 2022, petitioner filed a Petition for review of the

Notice of Determination for 2010, 2011, and 2018. On February 17,

2022, Appeals issued a Decision Letter on Equivalent Hearing for 2018

sustaining the NFTL filing. The Decision Letter stated that petitioner

did not request a CDP hearing during the 30-day period and advised

petitioner that it did not have the right to dispute Appeals’ decision in

this Court except that it may dispute Appeals’ decision that the hearing

request was untimely. After receipt of the Decision Letter, petitioner

filed a Petition for review of the Decision Letter, docket No. 5442-22L,

which has been consolidated with the case at docket No. 381-22. The

parties had not filed any motions in that case.

Respondent filed a Motion to Dismiss for Lack of Jurisdiction on

the grounds that petitioner’s hearing request for 2018 was untimely and

Appeals did not make a determination or issue a notice of determination

for 2018 for us to review. In opposing respondent’s Motion petitioner

argued that its CDP hearing request was timely filed during the 30-day

period by challenging the date that the NFTL was filed and the date

that the 2018 notice was issued. It also argued that the Notice of

Determination contained a determination for 2018 on the basis of the

reference to 2018 in the header. Alternatively, it argued that we should

extend the reasoning of Boechler and apply equitable tolling to the

30-day period for requesting a CDP hearing under section 6320(a)(3)(B).

It argued that the circumstances of these cases warrant equitable tolling

and that Appeals should have treated its late hearing request as timely

and should have issued a notice of determination for 2018.

6

By Order dated November 14, 2022, we held that petitioner’s

hearing request for 2018 was untimely in the absence of equitable

tolling. The NFTL was filed on March 15, 2021, and the 2018 notice was

issued on March 16, 2021. The statutory deadline for filing a timely

request for a CDP hearing was April 21, 2021, and the 2018 notice

incorrectly stated that the deadline was April 22, 2021. See § 6320(a)(3).

Regardless, petitioner submitted its request on April 23, 2021, and the

CDP hearing request was untimely in the absence of equitable tolling.

We further held that in the absence of equitable tolling the Notice of

Determination did not contain a determination for 2018 when it is read

together with the Attachment despite the reference in the header to

2018. See Lunsford v. Commissioner, 117 T.C. 159, 161–64 (2001)

(stating that the validity of a notice of determination is assessed on its

face, and a notice is valid if it clearly states that Appeals has made a

determination).

In the November 14, 2022, Order we stated that under Craig v.

Commissioner, 119 T.C. 252, 259 (2002), where Appeals erroneously

concluded that a CDP hearing request was late, the Court has

jurisdiction to determine whether the request was timely and to review

Appeals’ determination irrespective of the label that Appeals used on

the document notifying the taxpayer of its determination. We stated

that we must determine whether the 30-day period for submitting a

CDP hearing request is subject to equitable tolling and, if it is, whether

we would have jurisdiction under Craig to correct Appeals’

determination that the request was late and review as to 2018. We

directed the parties to address whether the doctrine of equitable tolling

should apply to CDP hearing requests under the principles set forth in

Boechler. We further directed the parties to examine the full body of law,

including Treasury Regulations, relating to whether the 30-day period

is a fixed deadline.

In response to our Order respondent concedes that Craig would

provide the Court with jurisdiction to review a decision letter issued

following an equivalent hearing if the taxpayer’s hearing request is

timely through the application of equitable tolling. Respondent’s brief

states: “We believe this Court could apply its precedent in Craig to hold

that a decision letter is a determination in a situation where a taxpayer’s

otherwise untimely hearing request is deemed timely through the

application of equitable tolling.

7

Discussion

I.

Background

A.

Statutory Provisions of CDP Regime

Section 6321 imposes a lien in favor of the United States on all

property and rights to property of a person liable for tax when a demand

for payment has been made and the person fails to pay the tax. A lien

arises when an assessment is made, but the Secretary must file an

NFTL for the lien to be valid against any purchaser, holder of a security

interest, mechanic’s lienor, or judgment lien creditor. §§ 6322, 6323(a).

The filing of an NFTL sets into action a series of mandates for the IRS

and rights for the taxpayer. Section 6320(a) requires the IRS to provide

written notice of the NFTL filing to the taxpayer during the 5-day notice

period. § 6320(a)(1) and (2). Section 6320(a)(3) describes the information

that must be included in the NFTL. Part of the required information is

notice that the taxpayer has “the right . . . to request a hearing during

the 30-day period beginning on the day after the 5-day [notice] period.”

§ 6320(a)(3)(B).

Section 6320(b) provides taxpayers with a “[r]ight to [a] fair

hearing.” Section 6320(b)(1) provides the procedural steps that the

taxpayer must take to obtain a CDP hearing and also grants authority

to Appeals to hold a hearing. It states that “[i]f the person requests a

hearing in writing under subsection (a)(3)(B) and states the grounds for

the requested hearing, such hearing shall be held by . . . Appeals.” By

way of cross-reference to subsection (a)(3)(B), the taxpayer has a right

to a hearing if it is requested within 30 days beginning on the day after

the 5-day notice period for the required NFTL. Taxpayers are limited to

one hearing for a taxable year and have a right to a CDP hearing before

an impartial Appeals officer. § 6320(b)(2) and (3).

Section 6330 provides similar notice and hearing rights regarding

the IRS’s intent to levy upon taxpayer property. The time periods for the

IRS’s written notice of intent to levy and for the taxpayer’s hearing

request for a proposed levy are slightly different from those for an NFTL.

The IRS must provide written notice of intent to levy not less than 30

days before the day of the first levy, and the IRS notice must explain

that the taxpayer has the right to request a hearing during that 30-day

period. § 6330(a)(2), (3)(B); Treas. Reg. § 301.6330-1(c)(1) (providing that

the 30-day period to request a hearing for a proposed levy commences

the day after the date of the IRS notice).

8

The conduct and scope of CDP hearings are governed by section

6330(c), (d), and (e). See § 6320(c). Section 6330(c) sets forth the

requirements for the conduct and scope “[i]n the case of any hearing

conducted under this section.” As part of the hearing, the Appeals officer

must obtain verification from the Secretary that the requirements of any

applicable law or administrative procedure have been met. § 6330(c)(1).

The taxpayer may raise any relevant issues relating to the unpaid tax

and proposed collection action and may propose collection alternatives.

§ 6330(c)(2). After the hearing, the Appeals officer is required to make a

determination that takes into consideration the verification process, the

issues raised by the taxpayer, and whether the proposed collection

action balances the need for the efficient collection of taxes with the

taxpayer’s legitimate concern that any collection action is no more

intrusive than necessary. § 6330(c)(3).

Section 6330(d)(1) allows the taxpayer to petition this Court

within 30 days of Appeals’ determination. The 30-day deadline for filing

a petition is a nonjurisdictional deadline that is subject to equitable

tolling. Boechler, P.C. v. Commissioner, 142 S. Ct. at 1501. We have

jurisdiction to review Appeals’ determination. § 6330(d)(1). A proposed

levy must be suspended until the conclusion of a CDP hearing and any

judicial review of Appeals’ determination. § 6330(e).

B.

Legislative History

The CDP regime was enacted as part of the IRS Restructuring

and Reform Act of 1998, Pub. L. No. 105-206, § 3401, 112 Stat. 685, 746,

to establish “formal procedures designed to insure due process where the

IRS seeks to collect taxes.” H.R. Rep. No. 105-599, at 263 (1998) (Conf.

Rep.), as reprinted in 1998-3 C.B. 747, 1017. The CDP regime is

“designed to afford taxpayers due process in collections [with]

increase[d] fairness to taxpayers.” S. Rep. No. 105-174, at 67 (1998), as

reprinted in 1998-3 C.B. 537, 603. The Senate Finance Committee

explained that taxpayers should be entitled to the same rights and

protections in dealings with the IRS that persons have in dealing with

any other creditors and should receive a “meaningful hearing before the

IRS deprives them of their property.” Id.

The conference report indicates that Congress intended that

taxpayers that face a levy should have a right to an administrative

hearing even if they do not timely request one. It states that “[t]he

Secretary must provide a hearing equivalent to the pre-levy hearing if

later requested by the taxpayer.” H.R. Rep. No. 105-599, at 266,

9

as reprinted in 1998-3 C.B. at 1020. The conference report does not

specify any differences between a timely requested hearing and an

untimely requested, postlevy hearing except with respect to the

suspension of the levy. It states:

[T]he Secretary is not required to suspend the levy process

pending the completion of a hearing that is not requested

within 30 days of the mailing of the Notice. If the taxpayer

did not receive the required notice and requests a hearing

after collection activity has begun, then collection shall be

suspended and a hearing provided to the taxpayer.

Id.

The conference report separately addresses judicial review of

Appeals’ determination but says nothing about the taxpayer’s right to

seek judicial review when a hearing request is untimely. Contra id.

at 289, as reprinted in 1998-3 C.B. at 1043 (stating that for 90-day period

of section 6213(a), “[i]f the [deficiency] petition is not filed within that

time period, the Tax Court does not have jurisdiction to consider the

petition”). It states that the conferees expect Appeals “will prepare a

written determination addressing the issues presented by the taxpayer

and considered at the hearing. The determination . . . may be appealed

to Tax Court.” Id. at 266, as reprinted in 1998-3 C.B. at 1020. The

conference report further states that “[n]o further hearings are provided

under this provision as a matter of right. . . . However, after the 30 day

period had expired, the IRS is not required to provide a hearing or delay

any levy . . . .” Id.

C.

Treasury Regulations

The Treasury regulations reiterate the 30-day period for

requesting a CDP hearing and state that a taxpayer is entitled to a CDP

hearing “if the taxpayer timely requests such a hearing.” Treas. Reg.

§ 301.6320-1(b)(1); see also id. para. (c)(1), (2), Q&A-C3. Where a

taxpayer timely requests a CDP hearing but the request is missing

information required by the regulations, the regulations allow the

taxpayer to perfect the request within a reasonable time. 5 Treas. Reg.

§ 301.6320-1(c)(2), Q&A-C1(iii). For example, where a timely request

5 “[T]he IRS will make a reasonable attempt to contact the taxpayer and

request that the taxpayer comply with the unsatisfied requirements. The taxpayer

must perfect any timely written request . . . within a reasonable period of time after a

request from the IRS.” Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(iii).

10

fails to state the grounds for the hearing, the taxpayer may correct that

error after the 30-day period. Id. Q&A-C1(ii)(E), (iii); see also id.

Q&A-C1(v) (providing that a taxpayer may affirm a timely request that

was signed on its behalf by an unauthorized representative within a

reasonable time after the 30-day period). A request that is perfected

within a reasonable time is considered timely. Id. Q&A-C7. A request

that is not perfected within a reasonable period is considered untimely.

Id.

The regulations explain that if a taxpayer does not request a

hearing within the 30-day period, it forgoes the right to a CDP hearing

with respect to the unpaid tax and tax periods shown on the NFTL. Id.;

see also id. para. (i)(1) (“A taxpayer who fails to make a timely request

for a CDP hearing is not entitled to a CDP hearing.”); id. para. (c)(3)

(example 3) (stating that even if the untimeliness of a taxpayer’s hearing

request is attributable to the taxpayer’s being outside the United States,

vacationing, or otherwise not receiving the CDP notice until after the

30-day period expires, the taxpayer still is not entitled to a CDP

hearing). However, where taxpayers have failed to include the required

information in a timely filed hearing request, the regulations allow

taxpayers to provide the missing information after the 30-day period.

See Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(ii) (listing information that

taxpayers must include in hearing requests); id. (iii) (allowing taxpayers

to provide required information after the 30-day period where defective

hearing request is timely). The regulations direct Appeals to determine

the timeliness of any hearing request and state that Appeals has the

authority to determine the validity, sufficiency, and timeliness of both

the NFTL and the hearing request. Treas. Reg. § 301.6320-1(e)(1).

The regulations provide an alternative type of administrative

hearing, referred to as an equivalent hearing, to taxpayers that request

a hearing after the 30-day period. See id. para. (i)(1). We have stated

that equivalent hearings have “their genesis in the statute’s legislative

history and the regulations implementing Congressional intent as

gleaned from that history.” Craig, 119 T.C. at 258. When a hearing

request is untimely, the taxpayer will be notified of the request’s

untimeliness and offered an equivalent hearing without needing to

submit an additional request. Treas. Reg. § 301.6320-1(c)(2), Q&A-C7.

The regulations set a one-year deadline for taxpayers to request an

equivalent hearing beginning on the day after the 5-day notice period.

Id. para. (i)(2), Q&A-I7. An equivalent hearing is held by Appeals and

generally follows the same procedures as a CDP hearing. Id.

subpara. (1). Appeals will consider the same issues that it would have

11

considered at a CDP hearing on the same matter. Id. subpara. (2),

Q&A-I2. However, after an equivalent hearing Appeals issues a

different type of document called a decision letter about its conclusions

to sustain or proceed with the collection action. Id. subparas. (1), (2),

Q&A-I5. A decision letter contains all the information that must be

included in a notice of determination except it states that the taxpayer

cannot seek judicial review of the decision letter. Id. subpara. (2),

Q&A-I5 and Q&A-I6.

The regulations state that taxpayers cannot seek judicial review

of the outcome of an equivalent hearing. Id. Q&A-I6. They provide that

“[s]ection 6320 does not authorize a taxpayer to appeal the decision of

Appeals with respect to an equivalent hearing.” Id. We have held that

taxpayers are not entitled to seek judicial review of a decision letter

issued following an equivalent hearing. Moorhous v. Commissioner, 116

T.C. 263, 269–70 (2001); Kennedy, 116 T.C. at 262.

According to the regulations, an equivalent hearing has one

additional difference from a CDP hearing. Collection actions are

suspended during a timely requested CDP hearing and any judicial

review. § 6330(e)(1). During an equivalent hearing, collection action may

be suspended on a case-by-case basis, but collection is not required to be

suspended. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4 (“Appeals may

request the IRS office with responsibility for collecting the taxes to

suspend all or some collection action . . . if it determines that such action

is appropriate or necessary under the circumstances.”).

D.

Review of an Appeals’ Determination

Section 6330(d)(1) permits taxpayers to petition this Court to

review a determination by Appeals sustaining a collection action. When

a taxpayer fails to request a CDP hearing timely, Appeals is not required

to make a determination and accordingly there is no determination for

this Court to review. 6 Ramey v. Commissioner, 156 T.C. 1, 11 (2021);

6 Petitioner states that after Appeals has held a hearing, nothing in the statute

conditions our review on Appeals’ decision on the timeliness of the hearing request. We

do not understand petitioner to challenge that a determination is required for our

review. Rather, petitioner seems to argue that we may review Appeals’ decision with

respect to the 2018 notice because Appeals held one joint hearing for 2010, 2011, and

2018 and Appeals made a determination for 2010 and 2011. We rejected this argument

in our Order dated November 14, 2022. Appeals is authorized to hold hearings for

different tax periods at the same time and may combine an equivalent hearing with a

CDP hearing. Treas. Reg. § 301.6320-1(d)(1), (2), Q&A-D2 and Q&A-D3, (i)(1).

12

Offiler v. Commissioner, 114 T.C. 492, 498 (2000). Accordingly, the

absence of a determination is grounds for dismissal for lack of

jurisdiction. LG Kendrick, LLC v. Commissioner, 146 T.C. 17, 31 (2016),

aff’d, 684 F. App’x 744 (10th Cir. 2017); see Laing v. United States, 423

U.S. 161, 165 n.4 (1976) (issuing a valid notice of deficiency is a

jurisdictional prerequisite to filing a deficiency petition in the Tax Court

under section 6213(a)).

Taxpayers may not seek review by this Court of a decision letter

issued after an equivalent hearing; a decision letter does not constitute

a determination. See Orum v. Commissioner, 123 T.C. 1, 11 (2004), aff’d,

412 F.3d 819 (7th Cir. 2005); Moorhous, 116 T.C. at 270; Kennedy, 116

T.C. at 263. And as we have said, the issuance of a decision letter rather

than a determination turns on the timeliness of a taxpayer’s hearing

request. Thus, the question of whether the 30-day deadline of section

6320(a)(3)(B) may be equitably tolled affects our power to review the

outcome of an Appeals hearing. We could review the outcome of an

Appeals hearing where we determine that Appeals erroneously

concluded that a CDP hearing request was untimely and erroneously

provided an equivalent hearing. In such instance we can correct that

error and review the decision of the equivalent hearing as a

determination irrespective of the label that Appeals used on the

document notifying the taxpayer of the outcome of the Appeals hearing.

See Craig, 119 T.C. at 259. 7

In these cases, we must determine whether Appeals should have

made a determination with respect to the 2018 notice. To answer that

question, we must first decide whether the 30-day period for requesting

a CDP hearing is subject to equitable tolling. If it is subject to tolling, a

followup question is whether the circumstances of these cases warrant

equitable tolling. If Appeals should have equitably tolled the 30-day

period for requesting a CDP hearing, then Appeals should have made a

determination for 2018, issuance of the Decision Letter for 2018 rather

than a notice of determination would have been erroneous, and we could

review Appeals’ action with respect to 2018 as a determination.

7 We treat a decision as a determination (as opposed to remanding the case to

Appeals for further consideration) because, under the regulations, the two resolutions

generally are equivalent apart from the timeliness of the taxpayer’s hearing request

and the availability of judicial review. See Treas. Reg. § 301.6320-1(i).

13

E.

Tax Court Precedent

In Kennedy, 116 T.C. at 262, we held that the 30-day period for

requesting a CDP hearing for a proposed levy under section

6330(a)(3)(B) is a fixed deadline. We stated that “section 6330 does not

authorize” the Commissioner to waive the time restrictions imposed

therein. Kennedy, 116 T.C. at 262. We held that when a taxpayer fails

to request a CDP hearing timely, Appeals is “not obliged to conduct the

administrative hearing contemplated under section 6330(b)” and “the

decision to conduct an equivalent hearing did not result in a waiver by

[the Commissioner] of the time restrictions within which [the taxpayer

is] required to request an Appeals Office hearing under section 6330.”

Id. We have interpreted Kennedy as also applying to the 30-day period

for requesting a CDP hearing for an NFTL filing under section

6320(a)(3)(B). Andre v. Commissioner, 127 T.C. 68, 70 (2006). We now

reconsider these holdings.

II.

Statutory 30-Day Administrative Deadline

As a threshold matter, we must decide whether Appeals has

authority under the statute to review collection actions where the

taxpayer fails to submit a hearing request within the 30-day period. 8

Such an administrative deadline is said to be “jurisdictional” if it defines

the agency’s authority to hold hearings for untimely requests. See

Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013). An

administrative deadline that is “non-jurisdictional” is a claim-processing

rule that does not deprive the agency’s authority to hold hearings where

the deadline was missed. See id. at 154–56.

A filing deadline that is “jurisdictional” cannot be equitably tolled.

Id. at 154; see also United States v. Kwai Fun Wong, 575 U.S. 402,

408–09 (2015). Accordingly, before we can consider whether the 30-day

period of section 6320(a)(3)(B) is subject to equitable tolling, we must

decide whether it is a “jurisdictional” deadline, i.e., whether Appeals has

authority to hold hearings for untimely hearing requests. See SantosZacaria v. Garland, 143 S. Ct. 1103, 1112 (2023). For the sake of

simplicity, we will refer to the question of whether the 30-day filing

deadline of section 6320(a)(3)(B) is “jurisdictional” or “nonjurisdictional” in terms of whether the 30-day deadline imposes an

8 Respondent does not argue that Appeals lacks authority to hold an

administrative hearing for taxpayers that submit untimely hearing requests. Rather,

he argues that the 30-day period is fixed and not subject to equitable tolling.

14

“administrative bar” to Appeals’ authority to hold hearings. If it imposes

an administrative bar, it is “jurisdictional” with respect to Appeals’

authority and Appeals does not have authority to hold hearings for

untimely hearing requests and the deadline cannot be equitably tolled.

In such instances the term “jurisdictional” does not refer to this Court’s

jurisdiction to review Appeals’ determinations to sustain collection

actions although it would also affect our jurisdiction.

The Supreme Court has applied the same principles to resolve

whether an administrative filing deadline is an administrative bar that

it applies to determine whether a judicial filing deadline is

jurisdictional. Auburn Reg’l Med. Ctr., 568 U.S. at 154–56. It has

explained that every filing deadline must state, by definition, a time

after which a claim is barred but “most time bars . . . are

nonjurisdictional.” Kwai Fun Wong, 575 U.S. at 403; see also Wilkins v.

United States, 143 S. Ct. 870, 877 (2023); Auburn Reg’l Med. Ctr., 568

U.S. at 154 (“[W]e have repeatedly held that filing deadlines ordinarily

are not jurisdictional . . . .”). It has “described filing deadlines as

‘quintessential claim-processing rules,’ which ‘seek to promote the

orderly progress of litigation,’ but do not deprive a [tribunal] of authority

to hear a case.” Kwai Fun Wong, 575 U.S. at 410 (quoting Henderson v.

Shinseki, 562 U.S. 428, 435 (2011)). Jurisdictional deadlines are “rare.”

Id. However, even where an administrative deadline is not an

administrative bar, the deadline might not be subject to equitable

tolling. Auburn Reg’l Med. Ctr., 568 U.S. at 158–60 (finding an

administrative deadline for Medicare providers to request an

administrative hearing about reimbursements was not an

administrative bar (it was non-jurisdictional) but was not amenable to

equitable tolling). A statute and regulations thereunder may

categorically preclude equitable tolling of a nonjurisdictional deadline. 9

Id.; see Kwai Fun Wong, 575 U.S. at 408.

For a filing deadline to be an administrative bar, Congress must

clearly state that the deadline has that effect. 10 Arbaugh v. Y & H Corp.,

9 Respondent does not argue that the 30-day deadline is an administrative bar

but argues that equitable tolling is nevertheless categorically precluded.

10 The Supreme Court has also held that a judicial filing deadline is

jurisdictional on the basis that a long line of Supreme Court precedent left undisturbed

by Congress is a clear indication that Congress intended it as such. See John R. Sand

& Gravel Co. v. United States, 552 U.S. 130 (2008); Bowles v. Russell, 551 U.S. 205

(2007). This principle of statutory construction is referred to as the prior-construction

canon. See Hallmark, 159 T.C. at 153. In Boechler, P.C. v. Commissioner, 142 S. Ct.

15

546 U.S. 500, 515 (2006); see Kwai Fun Wong, 575 U.S. at 408–09.

“[A]bsent such a clear statement . . . ‘courts should treat the restriction

as nonjurisdictional . . . .’” Auburn Reg’l Med. Ctr., 568 U.S. at 153

(quoting Arbaugh, 546 U.S. at 516). The clear statement requirement is

a “high bar.” Kwai Fun Wong, 575 U.S. at 409. A filing deadline is not

an administrative bar even when it is important and framed in

mandatory and emphatic terms. Id. at 410. Under the clear statement

rule, it is not sufficient that the interpretation that makes the deadline

an administrative bar is more plausible or even better than one that

does not. Boechler, P.C. v. Commissioner, 142 S. Ct. at 1499 (“But in this

context, better is not enough.”). Where a statutory filing deadline is

subject to multiple plausible interpretations, some of which would make

the deadline an administrative bar, it is difficult to make the case that

such a reading is clear. Id. “Congress must do something special, beyond

setting an exception-free deadline,” to make it an administrative bar and

prohibit its tolling. 11 See Kwai Fun Wong, 575 U.S. at 410.

We must decide whether section 6320 contains a clear statement

that the 30-day period for requesting a CDP hearing is an

administrative bar, i.e., that Appeals’ authority to review collection

actions is conditioned on the taxpayer submitting a CDP hearing

request within the 30-day period. Traditional rules of statutory

construction must plainly show that Congress imposed a procedural bar

that would deprive Appeals of authority to review collection actions. Id.

We examine the text, context, and relevant historical treatment of the

statute to determine whether Congress made the required clear

statement. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010); see

Kwai Fun Wong, 575 U.S. at 410-12. “Most important” is the text of the

statute. Kwai Fun Wong, 575 U.S. at 410.

We begin by looking at the text of the statute. The 30-day deadline

is in section 6320(a)(3)(B), the part of the statute that is directed at the

at 1500, the Supreme Court declined to apply this canon to interpret the section

6330(d)(1) filing deadline. No Supreme Court precedent supports a construction of the

30-day period of section 6320(a)(3)(B) as an administrative bar. The prior-construction

canon may also be invoked without Supreme Court precedent when, in the lower

courts, there has been an “unwavering line of administrative and judicial

interpretation,” Bragdon v. Abbott, 524 U.S. 624, 645 (1998), as in Hallmark, 159 T.C.

at 153–63, where we held that the 90-day deadline of section 6213(a) for filing a

petition with this Court for review of a notice of deficiency is jurisdictional. But as to

the 30-day deadline at issue here, we discern no “unwavering line” of precedent.

Consequently, we find the prior-construction canon inapplicable here.

11 We did not consider these concepts in Kennedy, 116 T.C. 255.

16

requirement that the IRS notify the taxpayer of an NFTL filing and that

provides the required contents of the IRS’s notice. Section 6320(a)(3)(B)

establishes when a hearing request will be timely. It does not speak in

terms of Appeals’ authority to review collection actions or otherwise

refer to Appeals’ authority to consider untimely hearing requests.

Section 6320(b)(1) provides the grant of authority to Appeals to

hold CDP hearings. It does not expressly condition Appeals’ authority

on a timely filed hearing request, and nothing in the statute prohibits

Appeals from providing CDP hearings to taxpayers that file untimely

requests. Section 6320(b)(1) also states what the taxpayer must do to

obtain a CDP hearing; the taxpayer must “request[] a hearing in writing

under subsection (a)(3)(B) and state[] the grounds for the requested

hearing.” The cross-reference to the 30-day period is in the part of the

sentence directed at what the taxpayer must do to obtain a CDP hearing.

It is not directed at Appeals’ authority to review collection actions. See

Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500 (“[I]ts short, 30-day

time limit is directed at the taxpayer, not the court.”). Moreover, the fact

that the cross-reference to the 30-day period is in the same sentence as

the grant of authority to Appeals is not a clear statement of

congressional intent that the untimeliness of a CDP hearing request

would deprive Appeals of authority to review the collection action. See

id. at 1499; Gonzalez v. Thaler, 565 U.S. 143, 147 (2012) (“Mere

proximity will not turn a rule that speaks in nonjurisdictional terms into

a jurisdictional hurdle.”); see also Auburn Reg’l Med. Ctr., 568 U.S.

at 155 (finding deadline and grant of authority in same section).

While a plausible interpretation of section 6320(b)(1) may be that

Appeals’ authority is limited to timely requested CDP hearings, we

learned from Boechler, P.C. v. Commissioner, 142 S. Ct. at 1499, that

even the most plausible reading is not enough. There is no clear

statement in the text of section 6320 that requires a taxpayer to comply

with the 30-day deadline for Appeals to have authority to review a

proposed collection action, and thus, we hold that the 30-day period is

not an administrative bar.

III.

Equitable Tolling

Having decided that the 30-day deadline for requesting a CDP

hearing is not an administrative bar, we must decide whether it is

amenable to equitable tolling. Respondent argues it is not; he argues

that it is a fixed deadline and equitable tolling is categorically precluded.

17

The Supreme Court has adopted a rebuttable presumption that

“nonjurisdictional” filing deadlines are subject to equitable tolling in

suits against the government. Irwin v. Dep’t of Veteran Affairs, 498 U.S.

89, 95–96 (1990). “Equitable tolling is a traditional feature of American

jurisprudence and a background principle against which Congress

drafts limitations periods.” Boechler, P.C. v. Commissioner, 142 S. Ct.

at 1500; see Young v. United States, 535 U.S. 43, 49 (2002) (“It is

hornbook law that limitations periods are ‘customarily subject to

“equitable tolling,”’ unless tolling would be ‘inconsistent with the text of

the relevant statute . . . .’” (first quoting Irwin, 498 U.S. at 95; and then

quoting United States v. Beggerly, 534 U.S. 38, 48 (1998))). The Supreme

Court adopted the tolling presumption as a rule of statutory

interpretation to reflect congressional intent. It reasoned that the

presumption is “likely to be a realistic assessment of legislative intent

as well as a practically useful principle of interpretation.” 12 Irwin, 498

U.S. at 95. The presumption replaced the Court’s “ad hoc” approach to

determining whether filing deadlines are subject to equitable tolling

which had produced “unpredictability without the corresponding

advantage of greater fidelity to the intent of Congress.” Id.

To rebut the presumption, there must be an affirmative

indication from Congress that it intended to preclude equitable tolling.

Kwai Fun Wong, 575 U.S. at 420. The presumption is rebutted if there

is “good reason to believe that Congress did not want the equitable

tolling doctrine to apply,” Brockamp v. Commissioner, 519 U.S. 347, 350

(1997), or where equitable tolling “is inconsistent with the text of the

relevant statute,” Beggerly, 524 U.S. at 48 (citing Brockamp, 519 U.S.

347). Courts examine the statute’s text, context, and purpose to

determine whether Congress intended to rebut the presumption. See

Arellano v. McDonough, 143 S. Ct. 543, 548 (2023); Boechler, P.C. v.

Commissioner, 142 S. Ct. at 1500; Holland v. Florida, 560 U.S. 631, 647

(2010); Brockamp, 519 U.S. at 350.

Petitioner relies on the tolling presumption. Respondent does not

directly challenge application of the presumption. He states “assuming

the presumption applies to agencies,” it is rebutted here. The

presumption does not apply to all administrative deadlines. In Auburn

12 In adopting the presumption, the Supreme Court recognized that once

Congress has waived sovereign immunity, allowing equitable tolling “amounts to little,

if any, broadening of the congressional waiver” and the “same rebuttable presumption

of equitable tolling applicable to suits against private defendants should also apply.”

Irwin, 498 U.S. at 95–96.

18

Regional Medical Center, 568 U.S. at 161, the Supreme Court did not

apply the presumption to a filing deadline for institutional Medicare

providers to appeal reimbursement decisions to an administrative

agency, stating that “[w]e have never applied the Irwin presumption to

an agency’s internal appeal deadline,” id. at 158. In Brockamp, 519 U.S.

at 350–51, the Supreme Court assumed for the sake of argument that

the presumption applied to tax refund claims but held that, even if it did

apply, the presumption was rebutted. And in analyzing its own

authority to hear a case (rather than the authority of the relevant

administrative agency), the Supreme Court has since allowed equitable

tolling of an agency filing deadline but did not address the

presumption. 13 Kwai Fun Wong, 575 U.S. at 407 (finding that equitable

tolling of an administrative deadline under the Federal Tort Claims Act

was permitted for determining if the statutory prerequisites to bringing

a claim in court were satisfied).

Absent the presumption, courts have used traditional tools of

statutory construction to determine whether equitable tolling is

consistent with the text of the statute and congressional intent for

enacting the statute. Bowen v. City of New York, 476 U.S. 467, 480

(1986). “[W]hether equitable tolling is available is fundamentally a

question of statutory intent.” Lozano v. Montoya Alvarez, 572 U.S. 1, 10

(2014). Pre-Irwin cases consider the text, context, and purpose of the

statute to determine whether Congress intended for a deadline to be

nonjurisdictional and thus open to equitable tolling. See Zipes v. Trans

World Airlines, Inc., 455 U.S. 385, 393–94 (1982) (filing a timely

complaint with Equal Employment Opportunity Commission is not a

jurisdictional prerequisite to suit in federal court and is subject to

waiver, estoppel, and equitable tolling). Post-Irwin cases also consider

the statute’s text, context, and purpose to determine whether there is a

congressional intent to rebut the presumption. See Boechler, P.C. v.

Commissioner, 142 S. Ct. at 1500; Holland, 560 U.S. at 647; Brockamp,

519 U.S. at 350.

Before we proceed, it is worth noting that the cases before us

differ from most of the cases cited above in an important respect. With

a few exceptions, those cases generally analyze equitable tolling in the

13 In Kwai Fun Wong, 575 U.S. at 408 n.2, after finding that the agency and

judicial deadlines at issue were nonjurisdictional, the Supreme Court held that both

were subject to equitable tolling without separately addressing that issue because the

government relied on the same indicia of congressional intent for its jurisdictional and

tolling arguments and made no independent argument against equitable tolling.

19

context of determining whether and how, under the relevant statutory

provisions, a court (as opposed to an administrative agency) may

consider a case. In Kwai Fun Wong, 575 U.S. 402, for example, the

Supreme Court considered the Federal Tort Claims Act (FTCA), which

stated, in relevant part, that a tort claim against the United States is

“forever barred” unless it is presented to the appropriate federal agency

within two years after the claim accrues. The Court decided that, for

purposes of a court’s consideration of a claim under the FTCA, the court

may equitably toll the two-year deadline. Id. at 412. Similarly, in Zipes,

455 U.S. at 388–89, the Court considered Title VII of the Civil Rights

Act of 1964, which required, in relevant part, that individuals pressing

employment discrimination claims file charges with an administrative

agency by a certain time before bringing suit in court. The Court

concluded that, for purposes of determining a court’s authority to hear a

case under the relevant provisions, the administrative filing deadlines

were nonjurisdictional and subject to equitable tolling (also waiver and

estoppel) by the court. Id. at 393; see also Brockamp, 519 U.S. 347

(considering whether, in determining a court’s authority to entertain a

tax refund claim, the court may apply equitable tolling to the underlying

administrative deadline).

By contrast, in the cases before us we decide whether an agency

must consider equitable tolling in administering its own deadline—

specifically, in determining whether to grant a CDP hearing. Additional

considerations may well be relevant in this type of case. 14 Here,

however, we conclude that the circumstances are sufficiently analogous

to apply the caselaw we describe above, for two principal reasons.

First, while the context of our case is unusual, it is not unique,

and in similar cases courts have applied general equitable tolling

principles. For example, the U.S. Court of Appeals for the Eleventh

Circuit has considered an agency’s administration of its own deadlines

in the immigration context. See Avila-Santoyo v. U.S. Att’y Gen., 713

F.3d 1357 (11th Cir. 2013). Applying the relevant caselaw, the court held

that the Board of Immigration Appeals was required to consider

equitable tolling when enforcing certain deadlines for seeking its review.

Id. at 1364. On similar facts, other courts of appeal have reached the

14 For example, implementing regulations may opine on the availability or

nonavailability of equitable tolling, see Auburn Reg’l Med. Ctr., 568 U.S. at 157, and

we address this point further below. Additionally, some administrative deadlines may

be purely internal, with no implications for a court’s authority to review a claim. See,

e.g., PAMC, Ltd. v. Sebelius, 747 F.3d 1214 (9th Cir. 2014). The presence or absence of

such considerations may well affect our analysis in future cases.

20

same conclusion. See, e.g., Harchenko v. INS, 379 F.3d 405, 409–10 (6th

Cir. 2004); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002); SocopGonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001). And when, in a different

context, the Supreme Court considered the same question—whether an

agency was required to equitably toll its own deadline—the Court did

not hold the caselaw inapplicable; rather, it distinguished the cases

according to the particular circumstances before it. 15 See Auburn Reg’l

Med. Ctr., 568 U.S. at 158–60.

Second, and significantly, the agency deadline at issue here

implicates judicial review in much the same way as the deadlines in

Kwai Fun Wong, Zipes, and other similar cases did, albeit less directly.

Equitable tolling cases typically involve a straightforward court filing

deadline, see, e.g., Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, or

else an agency filing requirement that must be satisfied before a court

can hear a case, see, e.g., Kwai Fun Wong, 575 U.S. 402. And they

typically hold that, in appropriate cases, courts may toll the relevant

deadlines, whether they be administrative or judicial, to preserve the

court’s ability to consider the case.

Here, the mechanics are different, but the effect is the same.

Specifically, this Court’s review under section 6330(d)(1) is predicated

on Appeals’ issuing a determination rather than a decision. And under

the implementing regulations, the only criteria Appeals considers in

determining whether to issue a decision (which we cannot review) and a

determination (which we can review) is the timeliness of a taxpayer’s

CDP hearing request. Thus, the 30-day filing deadline, administered by

Appeals, governs the Court’s ability to hear a CDP case in much the

same way as the deadlines at issue in the other cases. In other words

the 30-day deadline in substance operates as a statute of limitations for

a taxpayer’s right to seek judicial review. Cf. Lozano, 572 U.S. at 13–14

(explaining that equitable tolling is most appropriately applied to

statutes of limitations, which “establish the period of time within which

a claimant must bring an action” (quoting Heimeshoff v. Hartford Life

& Accident Ins. Co., 571 U.S. 99, 105 (2013))).

Accordingly, cases that consider equitable tolling in these related

contexts are instructive in our examination of congressional intent. See

id. at 10 (“Because the doctrine effectively extends an otherwise discrete

15 Those circumstances included, among other things, the governing

regulations, which the Court read as precluding equitable tolling. Auburn Reg’l Med.

Ctr., 568 U.S. at 157.

21

limitations period set by Congress, whether equitable tolling is available

is fundamentally a question of statutory intent.”). We place significant

weight on the Supreme Court’s understanding of congressional intent

under the CDP regime as stated in Boechler. Even without a

presumption in favor of equitable tolling, we are convinced that

equitable tolling of the 30-day period to request a CDP hearing is

consistent with the text of the statute and congressional intent for

enacting the CDP regime.

A.

Terms of the Statute

Section 6320(b) unambiguously provides taxpayers with the right

to a CDP hearing if timely requested. However, it does not expressly

address equitable tolling, and its plain text does not preclude equitable

tolling. Rather, it prescribes the procedural steps for the taxpayer to

obtain administrative review of proposed collection actions: A taxpayer

must “request[] a hearing in writing under subsection (a)(3)(B) and

state[] the grounds for the requested hearing.” § 6320(b)(1). Section

6320(b) incorporates the 30-day period by cross-reference. A simple

cross-reference is not a clear expression that the failure to request a

hearing during the 30-day period is an absolute bar to a CDP hearing or

that equitable tolling is categorically precluded.

We find that section 6320 is silent as to equitable tolling and

further examine whether equitable tolling is otherwise consistent with

the text of the statute. Equitable tolling is not permitted where it is

inconsistent with the text of the relevant statute. Brockamp, 519 U.S.

at 350–51. We consider whether the text manifests a “clear intent” to

preclude equitable tolling or “leaves room for . . . flexibility.”

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 (2019) (equitable

tolling of civil procedure rules). There is nothing in the text of section

6320 that suggests that the 30-day period is an absolute or inflexible

deadline. Section 6320(a)(3)(B) lacks emphatic terms. The lack of

“unusually emphatic” terms suggests equitable tolling is available.

Holland, 560 U.S. at 647. The Supreme Court has allowed equitable

tolling even for a deadline that emphatically states that untimely claims

are “forever barred.” Kwai Fun Wong, 575 U.S. at 420. Section 6320 does

not impose, in unequivocal terms, an absolute bar to a CDP hearing

when a request is untimely. Equitable tolling is consistent with the

terms of the statute.

Other factors also support equitable tolling. The deadline is short.

See Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500; Beggerly, 524

22

U.S. at 48–49 (finding that “unusually generous” 12-year limitations

period was “incompatible” with equitable tolling). The 30-day period is

contained in the part of the statute directed at the contents of the IRS

notice to the taxpayer of the NFTL filing. It is not directed at defining

the taxpayer’s rights or directed at Appeals’ authority to provide CDP

hearings. Rather, section 6330(b) defines the taxpayer’s hearing rights,

the right to one hearing before an impartial Appeals officer. Nothing in

section 6320 expressly or impliedly prohibits Appeals from asserting

authority to review collection actions from an untimely hearing request

when equitable considerations warrant it. The remedial nature of the

CDP regime also supports equitable tolling. The CDP regime is

unusually protective of taxpayers who are often not represented by

lawyers. The Supreme Court found that each of these factors supported

equitable tolling of the section 6330(d)(1) 30-day deadline to petition this

Court in Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500, and they

apply equally to the 30-day period for requesting a CDP hearing. 16 The

context and underlying policy of the CDP regime indicate congressional

intent to allow equitable tolling of the 30-day period for requesting a

hearing.

Section 6320 is easily distinguishable from the section 6511

deadline for filing tax refund claims at issue in Brockamp, which is not

subject to equitable tolling. Section 6511 is silent as to whether

equitable tolling is available but is written in “unusually emphatic form”

in a “highly detailed technical manner” with an “explicit listing of

exceptions” that contain both procedural and substantive limitations,

and it reiterates the filing deadline several times in several different

ways. 17 Brockamp, 519 U.S. at 350–52; see Holland, 560 U.S. at 646

(finding that section 6511 is silent as to whether equitable tolling is

available). Equitable tolling is not one of the listed exceptions to the

filing deadline. Brockamp, 519 U.S. at 351. These features of section

6511 are a strong indication that Congress did not intend for other

“unmentioned, open-ended, ‘equitable’ exceptions” to be read into the

statute. Brockamp, 519 U.S. at 352. Conversely, section 6320 is not

unusually emphatic, highly detailed, or technical. Nor are there explicit

exceptions in section 6320 that provide a reason to foreclose the

application of the broader doctrine of equitable tolling. The Supreme

16 While the Supreme Court relied on the tolling presumption in Boechler, these

factors are equally relevant to determine congressional intent even if the presumption

does not apply to the 30-day period for requesting a CDP hearing.

17 Tolling would have also affected the amount of the tax refunds. Brockamp,

519 U.S. at 352.

23

Court considered these distinguishing characteristics of the CDP regime

in Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500–01, when it held

that the 30-day deadline to seek judicial review in section 6330(d)(1) is

subject to equitable tolling.

The CDP regime’s main, and perhaps only, similarity with section

6511 is that both are part of the Code. Respondent relies on this

similarity, arguing that tax law is incompatible with equitable tolling.

The subject matter of the underlying statute is relevant to determining

congressional intent. See Beggerly, 524 U.S. at 48–49 (finding that the

need for certainty in the underlying subject matter (land ownership)

weighed against tolling). However, the Supreme Court has already

rejected this argument in Boechler. See Boechler, P.C. v. Commissioner,

142 S. Ct. at 1501–02; see also Volpicelli v. United States, 777 F.3d 1042

(9th Cir. 2015) (finding that equitable tolling applies to the deadline for

filing a suit for wrongful levy under section 6532(c)).

Respondent argues that the IRS needs a fixed 30-day deadline so

that it can determine quickly and definitively whether it may begin to

collect. He argues that the CDP regime is the result of a careful balance

that Congress struck between affording taxpayers an opportunity for

review of collection actions and the IRS’s need for efficient and prompt

collection which would be subverted if equitable tolling applies and that

equitable tolling would complicate and delay the collection efforts. We

disagree; the CDP regime does not demand certainty or promptness

without equitable considerations. Congress chose to add taxpayer

protections with the CDP regime, and we must honor that choice. The

purpose of the CDP regime is to bring fairness and due process to the

collection process. Congress did not intend to eliminate all delays posed

by untimely hearing requests as evidenced by the conference report’s

suggestion that in some circumstances proposed levies should be

suspended even when a hearing request is untimely. H.R. Rep.

No. 105-599, at 266, as reprinted in 1998-3 C.B. at 1020. The Treasury

regulations conform with congressional intent and allow suspension of

proposed levies upon an untimely hearing request on a case-by-case

basis. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4. This discredits

respondent’s argument that a “clear line” is necessary to maintain

efficient tax collection.

Equitable tolling of the 30-day period under section 6320(a)(3)(B)

would not create the administrative burden that respondent anticipates,

in contrast to the period discussed in Brockamp. In Brockamp, 519 U.S.

at 352, the Supreme Court cited the administrative burden of processing

24

more than “200 million tax returns” and “more than 90 million refunds”

each year as a reason not to apply equitable tolling. Reading an

equitable tolling exception into section 6511 for tax refund claims “could

create serious administrative problems by forcing the IRS to respond to

. . . large numbers of late claims . . . which, upon close inspection, might

turn out to lack sufficient equitable justification.” Brockamp, 519 U.S.

at 352. In contrast Appeals closes approximately 4,100 to 7,100

equivalent hearings annually. 18 Concerns about equitable tolling “pale

in comparison” to those in Brockamp, which dealt with a central

provision of tax law. See Boechler, P.C. v. Commissioner, 142 S. Ct. at

1501. Like the section 6330(d)(1) deadline for filing a petition with this

Court, the 30-day period for requesting a CDP hearing “serves a far more

limited and ancillary role in the tax collection systems.” Boechler, P.C.

v. Commissioner, 142 S. Ct. at 1501. Moreover, the short 30-day periods

under sections 6320(a)(3)(B) and 6330(d)(1) for the CDP hearing request

and the petition to this Court for review of Appeals’ determination,

respectively, are substantially shorter than the deadline for filing a

refund claim under section 6511(a), the later of 3 years from the time

the return was filed or 2 years from the time the tax was paid. Such

short filing periods support equitable tolling. See Boechler, P.C. v.

Commissioner, 142 S. Ct. at 1500.

A stated purpose of CDP hearings is to balance taxpayers’

concerns about the collection action against the government’s need for

prompt tax collection. See § 6330(c)(3)(C). The CDP hearing is an

opportunity for taxpayers not only to challenge the validity of the

collection action but also to propose collection alternatives and discuss

those alternatives with the IRS before the IRS proceeds with collection.

§ 6330(c)(2)(A)(iii). These principles are reinforced by the application of

equitable tolling.

B.

Legislative History

“For those who consider legislative history relevant,” Warger v.

Shauers, 574 U.S. 40, 48 (2014), the legislative history here does not

18 See Treasury Inspector Gen. for Tax Admin., Review of the Independent

Office of Appeals Collection Due Process Program, Report No. 2022-10-043, at 6 (Aug.

18, 2022) (Appeals closed 24,568 CDP cases and 4,099 equivalent hearing cases in

fiscal year 2021); id. Report No. 2021-10-049, at 7 (Aug. 4, 2021) (Appeals closed 21,438

CDP cases and 4,285 equivalent hearing cases in fiscal year 2020); id. Report No. 201710-055, at 3 (Sept. 11, 2017) (Appeals closed 34,229 CDP cases and 7,151 equivalent

hearing cases in fiscal year 2016). Reports are available at https://www.treasury.gov/

tigta/oa_auditreports.

25

change our conclusion. It does not clearly establish that Congress

intended the 30-day period for requesting a CDP hearing to be a fixed

deadline that is not amenable to equitable tolling. The conference report

states congressional intent that the IRS is required to provide some type

of administrative hearing to taxpayers that fail to request one within

the 30-day period. It states that a postlevy hearing is to be “equivalent”

to a pre-levy hearing but does not otherwise specify what type of

protections taxpayers should receive. It does not indicate congressional

intent as to the doctrine of equitable tolling. Significantly, it does not

suggest that taxpayers should receive any different treatment except

that the IRS is not required to suspend the levy. The conference report

separately addresses judicial review of collection actions but says

nothing about the taxpayer’s right to seek judicial review when the

hearing request is untimely. It does not expressly or implicitly prohibit

taxpayers from having an opportunity for judicial review following an

untimely hearing request. See H.R. Rep. No. 105-599, at 264,

as reprinted in 1998-3 C.B. at 1018.

Arguably, the conference report’s mention of postlevy hearings

supports a finding that Congress intended to allow application of the

broader doctrine of equitable tolling within the CDP regime. When

Congress has indicated its intent that some tolling should be permitted,

the Supreme Court has relied on the provision of some tolling as

evidence of congressional intent that the broader doctrine of equitable

tolling should apply. The statute at issue in Bowen, 476 U.S. at 480,

expressly authorized the Secretary to provide some tolling of the filing

deadline at issue (the filing period for judicial review of a Social Security

benefits decision). The Supreme Court relied on the express provision

for some tolling as congressional intent in favor of equitable tolling even

though it is broader than the tolling permitted by the statute. The

Supreme Court stated that Congress expressed a “clear intention” to

allow some tolling and concluded that application of the broader doctrine

of equitable tolling was “fully ‘consistent with the overall congressional

purpose’ and is ‘nowhere eschewed by Congress.’” 19 Id. (quoting Honda

v. Clark, 386 U.S. 484, 501 (1967)).

We recognize that the conference report contains seemingly

unqualified text that “[n]o further hearings are provided . . . as a matter

19 While the Supreme Court found in Bowen, 476 U.S. at 480, that Congress

expressed a clear intention to allow equitable tolling, the Supreme Court has not

required a clearly expressed intention before it has found a deadline is subject to

equitable tolling.

26

of right” and “after the 30 day period had expired, the IRS is not required

to provide a hearing or delay any levy.” H.R. Rep. No. 105-599, at 266,

as reprinted in 1998-3 C.B. at 1020. However, neither of these

statements is an absolute bar to equitable tolling. “[T]he simple fact that

a deadline is phrased in an unqualified manner does not necessarily

establish that tolling is unavailable.” Nutraceutical Corp., 139 S. Ct.

at 715. Moreover, reading these two statements as congressional intent

to preclude equitable tolling would make the conference report

internally inconsistent because the conference report clearly indicates

that with respect to levy actions taxpayers have a right to a postlevy

hearing “after the 30 day period” equivalent to a prelevy hearing. In

summary the conference report indicates congressional intent that a

hearing is not required but is appropriate when the circumstances

warrant it and does not categorically preclude equitable tolling.

Also, the Treasury regulations do not treat the latter of these

statements in the conference report as a bar to equitable considerations.

The regulations permit the IRS to “delay any levy” on a case-by-case

basis. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4. Nor will we treat these

statements as manifesting congressional intent for an absolute bar to

taxpayers’ receiving an administrative hearing with the opportunity for

judicial review. Allowing proposed levies to be suspended in some

circumstances clearly indicates congressional intent that equitable

considerations should be taken into account within the administrative

process of the CDP regime. Nothing in the conference report suggests

that Congress intended to deny judicial review when hearing requests

are untimely. Post-Boechler, we do not interpret the conference report

to impose a categorical prohibition of equitable tolling of the 30-day

period for seeking Appeals’ review of the collection action as such a

prohibition would deny taxpayers that request a CDP hearing after the

30-day period the right to seek judicial review.

C.

Treasury Regulations

Respondent argues that the Treasury regulations implement

Congress’s choice to provide equivalent hearings to taxpayers that file

untimely hearing requests and preclude equitable tolling. The

regulations state that a taxpayer that does not timely request a hearing

“forgoes the right to a CDP hearing” and will be “offered an equivalent

hearing.” Treas. Reg. § 301.6320-1(c)(2), Q&A-C7. Respondent argues

that the regulations’ provision of equivalent hearings is a reasonable

interpretation of the statute. We do not need to address that argument

because its basic premise, i.e., that the regulations categorically

27

preclude equitable tolling, is wrong. The regulations are silent as to

equitable tolling. They allow for equitable considerations with respect to

the 30-day deadline and do not interpret the deadline as strict or

inflexible.

1.

Equivalent Hearings

The regulations establish the procedures for equivalent hearings,

and nothing in those procedures categorically precludes equitable

tolling. According to the regulations, both CDP and equivalent hearings

are conducted by Appeals, follow the same procedures, consider the

same issues, and end with the issuance of a document that contains the

same information. Treas. Reg. § 301.6320-1(i)(1), (2), Q&A-I2, Q&A-I5;

see Craig, 119 T.C. at 258–59. None of these provisions is a categorical

bar to equitable tolling. The regulations state that “[s]ection 6320 does

not authorize a taxpayer to appeal the decision of Appeals with respect

to an equivalent hearing.” Treas. Reg. § 301.6320-1(i)(2), Q&A-I6.

However, under Craig, if the 30-day period is tolled, we would review

Appeals’ conclusion from an equivalent hearing as a determination.

Equivalent hearings can be viewed as an equitable exception to

the 30-day period. However, the existence of an express equitable

exception to a filing deadline does not foreclose the application of the

broader doctrine of equitable tolling. See Boechler, P.C. v. Commissioner,

142 S. Ct. at 1501 (finding that a single exception that prohibits

taxpayers from filing a petition because of a bankruptcy proceeding does

not preclude equitable tolling); Holland, 560 U.S. at 647–48 (finding

that equitable tolling applied to a statute that “is silent as to equitable

tolling while containing one provision that expressly refers to a different

kind of tolling”); Young, 535 U.S. at 53 (finding that an unrelated,

express tolling provision in the same subsection as the limitations period

does not indicate a statutory intent to preclude equitable tolling but

instead demonstrates that the statute “incorporates traditional

equitable principles”); see also Beggerly, 524 U.S. at 48–49 (finding no

equitable tolling for a statute that “already effectively allowed for

equitable tolling” by providing that the limitations period did not begin

to run until the plaintiff knew or should have known about the claim).

We find that the provision of equivalent hearings does not necessarily

bar equitable tolling of the 30-day period.

There are instances where the discretion granted to agencies to

determine the application of equitable considerations must be respected

and may preclude application of equitable tolling. In Auburn Regional

28

Medical Center, 568 U.S. at 157, the statute provided for a 180-day

administrative deadline, and the agency regulation extended the

deadline for a maximum of 3 years “for good cause shown.” The plaintiff

filed a claim over 10 years late. The Supreme Court thought that the

regulation was an adequate substitute for equitable tolling and held

against equitable tolling beyond the 3-year regulatory deadline. Id.

at 157–58. The CDP regime is clearly distinguishable from the Medicare

reimbursement process at issue in Auburn Regional Medical Center,

which is “not designed to be ‘“unusually protective” of claimants’” who

were “sophisticated,” “institutional,” “repeat players” that were

“assisted by legal counsel.” Id. at 160 (quoting Bowen, 476 U.S. at 480);

see also Bowen, 476 U.S. at 480 (finding equitable tolling allowed for

deadline in a statute that provided for some tolling and is “unusually

protective” of claimants (quoting Heckler v. Day, 467 U.S. 104, 106

(1984))). In the light of the remedial nature of the CDP regime, the

regulations’ provision of equivalent hearings does not preclude the

application of the broader doctrine of equitable tolling. 20

Nor do the regulations contain other statements precluding the

application of equitable tolling. The provisions most supportive of

respondent’s position include Treasury Regulation § 301.6320-1(c)(2),

Q&A-C4 (explaining the criteria Appeals uses to determine the

timeliness of a CDP hearing request without mention of equitable

tolling), Q&A-C7 (stating that if a taxpayer fails to request a CDP

hearing within the 30-day period, “the taxpayer foregoes the right to a

CDP hearing”), and paragraph (c)(3) (example 3) (explaining that, even

if a taxpayer’s untimeliness is attributable to being outside the United

States, vacationing, or otherwise not receiving the CDP notice until after

the 30-day period, the taxpayer still is not entitled to a CDP hearing).

But, unlike the regulation the Supreme Court considered, these

provisions are not irreconcilable with equitable tolling. See Auburn Reg’l

Med. Ctr., 568 U.S. at 156–57.

To begin with, none of the provisions specifically states that

equitable tolling is unavailable, whereas the regulation in Auburn

20 We need not consider whether to grant deference to an agency interpretation

of a Treasury regulation under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), because

respondent does not argue that his interpretation should be granted deference.

Furthermore, the regulation is silent on the application of equitable tolling and does

not contain a genuine ambiguity, and respondent’s argument that equitable tolling is

precluded under the statute is not based on authoritative, technical expertise or fair

and considered judgment in the light of Boechler.

29

Regional Medical Center “[spoke] in no uncertain terms.” 21 Id. at 156.

Additionally, where possible, we interpret regulations consistently with

the governing statute. See, e.g., Long Island Care at Home, Ltd. v. Coke,

551 U.S. 158, 169–70 (2007); Emery Mineral Corp. v. Sec’y of Labor, 744

F.2d 1411, 1414 (10th Cir. 1984); cf. League of Wilderness Defs./Blue

Mountains Diversity Project v. Forsgren, 309 F.3d 1181, 1190 (9th Cir.

2002) (“An agency simply may not interpret a regulation in a way that

contravenes a statute.”). As we have already found, equitable tolling is

consistent with the text of section 6320. And equitable tolling may be

appropriate for reasons not addressed by the regulations. That the

regulations provide that exceptions generally are unavailable in certain

enumerated circumstances does not mean that exceptions are never

available. Accordingly, “we cannot say that . . . allowing for equitable

tolling would ‘essentially gut’ the regulatory scheme.” See AvilaSantoyo, 713 F.3d at 1364 n.6 (quoting Auburn Reg’l Med. Ctr., 568 U.S.

at 157).

2.

Equitable Considerations in the Regulations

Other parts of the Treasury regulations allow for equitable

considerations and do not interpret the 30-day period as a fixed

deadline. The regulations allow taxpayers to perfect defective hearing

requests after the 30-day period, a clear example of equitable tolling

permitted by the regulations. See Irwin, 498 U.S. at 96 (and cases cited

thereat) (finding equitable tolling can be used to allow parties to correct

defective pleadings). The regulations list information that taxpayers

must include in hearing requests and permit taxpayers to provide

missing information after the deadline. Treas. Reg. § 301.6320-1(c)(2),

Q&A-C1(ii) and (iii). Significantly, the regulations allow late compliance

with the express requirements of the statute. Section 6320(b)(1) requires

that the taxpayer request a hearing in writing and state the grounds for

the hearing. The regulations require that a hearing request state “[t]he

reason or reasons why the taxpayer disagrees” with the collection action

but allow taxpayers to provide this information after the 30-day

deadline. Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(ii)(E), (iii); see id.

Q&A-C1(ii) (listing information that taxpayers must include in hearing

requests). The regulations also seemingly would allow taxpayers to

21 The regulation reads as follows: “A request for a Board hearing filed after

[the 180-day time limit] shall be dismissed by the Board, except that for good cause

shown, the time limit may be extended. However, no such extension shall be granted

by the Board if such request is filed more than 3 years after the date the notice of the

intermediary’s determination is mailed to the provider.” 42 C.F.R. § 405.1841(b)

(2007).

30

receive CDP hearings even when they request the hearing after the

30-day period so long as they submitted a document contesting the

collection action during the 30-day period although not specifically

requesting a hearing. Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(ii)(D), (iii).

The regulations thus incorporate equitable considerations and allow for

exceptions to the 30-day deadline.

3.

Suspension of Levy Following Untimely Requests

The Treasury regulations deviate from the prompt collection that

respondent says section 6320 demands. Appeals can request that a

collection action be suspended following an untimely hearing request on

a case-by-case basis. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4. Thus,

Appeals is already weighing individualized equities of untimely hearing

request cases. The regulations show that a deadline need not be binding

when individual equities require otherwise. Notably, the part of the

regulations addressing the suspension of levies implements a statutory

provision that also cross-references a 30-day period for filing a CDP

hearing. Section 6330(e)(1) provides that a levy action is suspended “if a

hearing is requested under subsection (a)(3)(B)” of section 6330 during

the pendency of “such hearing.” The regulations do not interpret the

cross-reference as an absolute bar to equitable considerations.

Accordingly, they comport with our understanding that the crossreference in section 6320(b)(1) to the section 6320(a)(3)(B) 30-day period

does not categorically preclude equitable tolling of the 30-day period.

IV.

Conclusion

Taxpayers must pursue a CDP hearing before they can seek

judicial review. A categorical prohibition of equitable tolling of the filing

deadline for Appeals’ review of collection actions would be contrary to

Congressional intent. It would mean that we would protect a taxpayer’s

ability to seek judicial review through equitable tolling of the section

6330(d) deadline for filing a petition while denying taxpayers the

possibility of equitable tolling to obtain Appeals’ review and a

determination for this Court to review. Although the Supreme Court did

not address the 30-day period for requesting a CDP hearing in Boechler,

we will not apply a stricter standard to the administrative filing

deadline. Congress allowed for equitable tolling of the judicial filing

deadline in section 6330(d)(1). Boechler, P.C. v. Commissioner, 142 S. Ct.

at 1500–01. It would not have intended to place a separate procedural

obstacle to access this Court by precluding tolling of the 30-day period

for requesting a CDP hearing.

31

Equitable tolling furthers the basic statutory purposes of the CDP

regime of due process, protection, and fairness to taxpayers. We find

that congressional intent is effected by applying equitable tolling to the

30-day period. We overrule Kennedy, 116 T.C. 255, to the extent that it

holds that Appeals is not authorized to waive the 30-day period for

requesting a CDP hearing and that the 30-day period is a fixed deadline

that is not amenable to equitable tolling. We hold that the 30-day period

for requesting a CDP hearing may be equitably tolled where the

circumstances warrant it.

We would have jurisdiction to review an erroneously issued

decision letter instead of a determination where a CDP hearing request

would be timely on the basis of equitable tolling. Appeals issued the

Notice of Determination before the Supreme Court issued its opinion in

Boechler and did not have reason to consider whether the facts of these

cases warrant equitable tolling of the 30-day period under section

6320(a)(3)(B). Accordingly, we will remand the collection action for 2018

to Appeals to determine whether the circumstances surrounding

petitioner’s late filing warrant equitable tolling before we review that

question.

An appropriate order will be issued.

Reviewed by the Court.

KERRIGAN, GALE, PARIS, MORRISON, NEGA, PUGH,

ASHFORD, URDA, COPELAND, TORO, GREAVES, MARSHALL, and

WEILER, JJ., agree with this opinion of the Court.

FOLEY, BUCH, and JONES, JJ., agree with Parts I, II, and III.A

and B of this opinion, but dissent from Part III.C.

32

JONES, J., concurring in part and dissenting in part: I concur

with the opinion of the Court that Appeals has authority under section

6320 to hold CDP hearings when the taxpayer files a request after the

30-day period set forth in section 6320(a)(3)(B), as well as the corollary

holding that equitable tolling of the 30-day period is not barred by the

statute. See op. Ct. pp. 30–31. I also concur that it is appropriate to

overrule Kennedy v. Commissioner, 116 T.C. 255 (2001), to the extent

set forth in the opinion of the Court. See op. Ct. p. 31. But I part ways

with the majority opinion where it holds that Treasury Regulation

§ 301.6320-1 does not preclude application of the doctrine of equitable

tolling to the 30-day period. See op. Ct. pp. 26–30.

Our construction of section 6320 finds the statute silent or

ambiguous with respect to equitable tolling. 1 In such situations, the

question for the Court is whether the agency’s answer is based on a

permissible construction of the statute. Chevron, U.S.A., Inc. v. Nat. Res.

Def. Council, Inc., 467 U.S. 837, 843 (1984); see Cuozzo Speed Techs.,

LLC v. Lee, 579 U.S. 261, 277 (2016) (finding that a statute was

ambiguous under step one of the Chevron doctrine, and analyzing the

agency’s interpretation under step two); King v. Burwell, 576 U.S. 473,

492 (2015) (same); Wide Voice, LLC v. FCC, 61 F.4th 1018, 1025–26 (9th

Cir. 2023) (same); Diaz-Rodriguez v. Garland, 55 F.4th 697, 727 (9th

Cir. 2022) (same); 3M Co. & Subs. v. Commissioner, No. 5816-13, 160

T.C., slip op. at 253–54 (Feb. 9, 2023) (same); Oakbrook Land Holdings,

LLC v. Commissioner, 154 T.C. 180, 195–96 (2020) (same), aff’d, 28

F. 4th 700 (6th Cir. 2022). Rather than undertake this analysis, the

Court errs in holding that “the regulations’ provision of equivalent

hearings does not preclude the application of the broader doctrine of

equitable tolling.” See op. Ct. p. 28. This holding is based on the incorrect

assertion that “[t]he regulation[] [is] silent as to equitable tolling.” See

op. Ct. p. 27.

Therefore, I respectfully dissent with respect to this holding and

write separately to explain how the text of the regulation—and the

context in which it was promulgated and amended—speaks clearly to

close the door to equitable tolling. Because the regulation closes the door

1 “There is no clear statement in the text of section 6320 that requires a

taxpayer to comply with the 30-day deadline for Appeals to have authority to review a

proposed collection action, and thus, we hold that the 30-day period is not an

administrative bar.” See op. Ct. p. 16.

33

that the Court’s statutory construction leaves open, 2 I would direct the

parties to brief the validity of Treasury Regulation § 301.6320-1 under

Chevron (step two). I would likewise direct them to brief the severability

of regulatory provisions that are permissible constructions from those

that are not. See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294

(1988).

I.

Regulatory Text

The regulation under section 6320 speaks consistently and clearly

to establish Treasury’s position that a request for a CDP hearing must

be filed within the 30-day deadline; any request not made “timely,” i.e.,

within the 30-day deadline, can be treated as a request for an equivalent

hearing. 3 See Treas. Reg. § 301.6320-1(c)(1), (i)(1). As discussed infra,

the regulation even goes so far as to emphatically reject equitable tolling

of the 30-day deadline for taxpayers residing outside of the United

States and clearly states that all taxpayers who want a CDP hearing

must request a hearing within the 30-day period. See id. para. (2),

Q&A-C5.

“Regulations are interpreted according to the same rules as

statutes, applying traditional rules of construction.” Minnick v.

Commissioner, 796 F.3d 1156, 1159 (9th Cir. 2015) (citing Christopher

v. SmithKline Beecham Corp., 635 F.3d 383, 392 (9th Cir. 2011), aff’d,

567 U.S. 142 (2012)), aff’g T.C. Memo. 2012-345. We therefore “begin our

interpretation of [a] regulation with its text.” Green v. Brennan, 578 U.S.

547, 553 (2016). When interpreting the meaning of a regulation, the

Supreme Court has given us a precise method to use. Our first and

sometimes final step is to “‘carefully consider[]’ the text, structure,

history, and purpose of a regulation, in all the ways [a court] would if it

had no agency to fall back on.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415

2 For example, Treasury Regulation § 301.6320-1(b)(1) conditions a taxpayer’s

entitlement to a CDP hearing on the filing of a request within the 30-day period. This

conflicts with our conclusion that “[t]here is no clear statement in the text of section

6320 that requires a taxpayer to comply with the 30-day deadline for Appeals to have

authority to review a proposed collection action.” See op. Ct. p. 16. It is also

irreconcilable with our holding that “the 30-day period is not an administrative bar.”

See op. Ct. p. 16.

3 See United States v. Gilliam, 737 F. App’x 660, 666–67 (4th Cir. 2018)

(“Section 6330, as incorporated by [section] 6320, is silent as to whether a hearing

request must be timely. The regulations raise the issue of timeliness and use

timeliness to distinguish between CDP and equivalent hearings without reference to

when a timeliness determination must be made.” (citation omitted)).

34

(2019) (first alteration in original) (quoting Pauley v. BethEnergy Mines,

Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting)).

To begin, Treasury Regulation § 301.6320-1(a)(2), Q&A-A10 asks:

“What must a CDP Notice given under section 6320 include?” The

answer provides a list of required items, which includes, “[a] statement

concerning the taxpayer’s right to request a CDP hearing during the

30-day period that commences the day after the end of the five business

day period within which the IRS is required to provide the taxpayer with

notice of the filing of the NFTL.” Id. (emphasis added).

In the same subparagraph, the regulation queries: “What are the

consequences if the taxpayer does not receive or accept a CDP Notice

that is properly left at the taxpayer’s dwelling or usual place of business,

or sent by certified or registered mail to the taxpayer’s last known

address?” Id. Q&A-A11. The answer is that a properly sent CDP Notice

“is sufficient to start the 30-day period, commencing the day after the

end of the five business day notification period, within which the

taxpayer may request a CDP hearing.” Id.

Further, the portion of the regulation that controls a taxpayer’s

right to a CDP hearing provides the following:

Entitlement to a CDP hearing—(1) In general. A taxpayer

is entitled to one CDP hearing with respect to the first

filing of a NFTL (on or after January 19, 1999) for a given

tax period or periods with respect to the unpaid tax shown

on the NFTL if the taxpayer timely requests such a hearing.

The taxpayer must request such a hearing during the

30-day period that commences the day after the end of the

five business day period within which the IRS is required

to provide the taxpayer with notice of the filing of the NFTL.

Id. para. (b)(1) (emphasis added).

We cannot breeze by this provision’s use of the words

“entitlement,” “timely,” and “must,” as it sets out a taxpayer’s right to a

CDP hearing and insists that the right depends upon the filing of the

request within the 30-day period. “Entitlement” is defined as “[a]n

absolute right to a (usu. Monetary) benefit, such as social security,

granted immediately upon meeting a legal requirement.” Entitlement,

35

Black’s Law Dictionary (7th ed. 1999). 4 “Timely,” which is used as an

adverb in Treasury Regulation § 301.6320-1(b)(1), 5 means “[i]n time;

opportunely.” Timely, The American Heritage Dictionary of the English

Language (4th ed. 2000). “Must” is defined as “[t]o be obliged or required

by morality, law, or custom.” Id., Must. 6

In other words, the regulation plainly states that a taxpayer is

required to file a request for a CDP hearing within the 30-day period to

exercise her right to such a hearing. The implication—which is also

made clear in the regulations—is that there is no equitable tolling with

respect to the strict and inflexible 30-day deadline.

Consistent with this position, the regulation’s guidance on

requesting a hearing provides:

Requesting a CDP hearing—(1) In general. When a

taxpayer is entitled to a CDP hearing under section 6320,

the CDP hearing must be requested during the 30-day

period that commences the day after the end of the five

business day period within which the IRS is required to

provide the taxpayer with a CDP Notice with respect to the

filing of the NFTL.

Treas. Reg. § 301.6320-1(c)(1).

Treasury Regulation § 301.6320-1(c)(2) continues to focus on the

importance of timely filing a request. At Q-C3, the paragraph poses the

question: “When must a taxpayer request a CDP hearing with respect

to a CDP Notice issued under section 6320?” At A-C3, the answer is:

See also Entitlement, The American Heritage Dictionary of the English

Language (4th ed. 2000) (“The state of being entitled.”); Entitlement, Webster’s New

Universal Unabridged Dictionary (2003) (same); Entitled, The American Heritage

Dictionary of the English Language (4th ed. 2000) (“To furnish with a right or claim to

something.”); Entitled, Webster’s New Universal Unabridged Dictionary (2003) (“[T]o

give (a person or thing) a title, right, or claim to something; furnish with grounds for

laying claim.”).

4

5 See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 140 (2012) (“Words are to be given the meaning that proper grammar and

usage would assign them.”).

6 See also Must, Webster’s New Universal Unabridged Dictionary (2003)

(defining the term “Must,” when used as an auxiliary verb, as “to be obliged or bound

to by an imperative requirement”).

36

A taxpayer must submit a written request for a CDP

hearing within the 30-day period that commences the day

after the end of the five business day period following the

filing of the NFTL. Any request filed during the five

business day period (before the beginning of the 30-day

period) will be deemed to be filed on the first day of the

30-day period. The period for submitting a written request

for a CDP hearing with respect to a CDP Notice issued

under section 6320 is slightly different from the period for

submitting a written request for a CDP hearing with

respect to a CDP Notice issued under section 6330. For a

CDP Notice issued under section 6330, the taxpayer must

submit a written request for a CDP hearing within the

30-day period commencing the day after the date of the

CDP Notice.

At Q&A-C4, subparagraph (c)(2) provides that the rules and

regulations under sections 7502 and 7503 will be used to determine the

timeliness of a taxpayer’s request for a CDP hearing.

Furthermore, the regulations soundly reject equitable tolling at

subparagraph (c)(2), Q&A-C5. That provision asks: “Is the 30-day period

within which a taxpayer must make a request for a CDP hearing

extended because the taxpayer resides outside the United States?” At

A-C5, the answer is:

No. Section 6320 does not make provision for such a

circumstance. Accordingly, all taxpayers who want a CDP

hearing under section 6320 must request such a hearing

within the 30-day period that commences the day after the

end of the five business day notification period.

(Emphasis added.)

Treasury Regulation § 301.6320-1(c) is not shy about the

consequence of failing to submit a request for a CDP hearing within the

30-day period: A taxpayer who fails to make a timely request for a CDP

hearing is not entitled to a CDP determination. The regulation makes

no distinction between taxpayers residing inside or outside of the United

States; there is one 30-day period that applies to all taxpayers that

cannot be extended, for example, on the basis of place of residence.

Treas. Reg. § 301.6320-1(c)(2), Q&A-C5.

37

Further, at Q&A-C7, the question presented is: “What will

happen if the taxpayer does not request a CDP hearing in writing within

the 30-day period that commences the day after the end of the five

business day notification period?” The answer is that the taxpayer has

forfeited her right to a CDP hearing:

If the taxpayer does not request a CDP hearing in writing

within the 30-day period that commences on the day after

the end of the five-business-day notification period, the

taxpayer foregoes the right to a CDP hearing under section

6320 with respect to the unpaid tax and tax periods shown

on the CDP Notice. A written request submitted within the

30-day period that does not satisfy the requirements set

forth in A-C1(ii)(A), (B), (C), (D) or (F) of this paragraph

(c)(2) is considered timely if the request is perfected within

a reasonable period of time pursuant to A-C1(iii) of this

paragraph (c)(2). If the request for CDP hearing is untimely,

either because the request was not submitted within the

30-day period or not perfected within the reasonable period

provided, the taxpayer will be notified of the untimeliness of

the request and offered an equivalent hearing. In such

cases, the taxpayer may obtain an equivalent hearing

without submitting an additional request. See paragraph

(i) of this section.

Id. (emphasis added).

To summarize, the text of Treasury Regulation § 301.6230-1

(1) establishes clearly and consistently that a taxpayer’s right to a CDP

hearing is conditioned on the filing of a request within the 30-day period;

(2) provides that the rules and regulations under sections 7502 and 7503

will be used for determining the timeliness of a taxpayer’s request;

(3) rejects the notion that the 30-day deadline can be extended for

taxpayers residing outside of the United States and requires that all

taxpayers who want a CDP hearing must request a hearing within the

30-day period; (4) provides that failure to file a request within the 30-day

period means that the taxpayer “foregoes the right to a CDP hearing”;

and (5) provides that a taxpayer who fails to file a timely request will be

offered an equivalent hearing. 7

7 The regulation holds the line on the 30-day period with respect to substitute

CDP Notices too. Treas. Reg. § 301.6320-1(c)(2), Q&A-C8.

38

Yet the majority opinion states that the regulations “allow for

equitable considerations with respect to the 30-day deadline and do not

interpret the deadline as strict or inflexible.” See op. Ct. p. 27. 8 I believe

this conclusion is at odds with the text of the regulation.

As a consequence, the majority’s reliance on Craig v.

Commissioner, 119 T.C. 252 (2002), is misplaced. The Court’s opinion

states that “[t]he regulations establish the procedures for equivalent

hearings, and nothing in those procedures categorically precludes

equitable tolling.” See op. Ct. p. 27. As previously discussed, I disagree.

The opinion continues, recognizing that Treasury Regulation

§ 301.6320-1(i)(2), Q&A-I6, provides that “[s]ection 6320 does not

authorize a taxpayer to appeal the decision of Appeals with respect to

an equivalent hearing” but concludes that “under Craig, if the 30-day

period is tolled, we would review Appeals’ conclusion from an equivalent

hearing as a determination.” See op. Ct. p. 27.

The opinion of the Court rests on the unspoken assumption that

a CDP request is “timely” when equitable tolling is applicable, but as

previously discussed, the regulation is at odds with our interpretation of

the statute. Under the regulation, a CDP request is timely only if it is

received within the 30-day period, and the regulation repeatedly

provides this rule in absolute, strict, and inflexible terms. Treas. Reg.

§ 301.6320-1(b)(1) (“The taxpayer must request [a CDP] hearing during

the 30-day period . . . .”); see also id. para. (c)(1), (2), Q&A-C3 and

Q&A-C4. The regulation provides in no uncertain terms that all

taxpayers who want a CDP hearing must request one within the 30-day

period. See Treas. Reg. § 301.6320-1(c)(2), Q&A-C5, Q&A-C7.

In Craig, a taxpayer made a timely request for a CDP hearing,

but instead of holding a CDP hearing and issuing a notice of

determination, the IRS erroneously held an equivalent hearing and

issued a decision letter based on the mistaken belief that the taxpayer’s

CDP request was untimely. Craig, 119 T.C. at 258–59. This Court

stated:

Although the Appeals officer concludes an equivalent

hearing by issuing a decision letter, as opposed to a notice

8 To the extent the regulations “allow for equitable considerations with respect

to the 30-day deadline,” see op. Ct. p. 27, such leniency is with respect to perfecting and

clarifying hearing requests that are filed within the 30-day period, Treas. Reg.

§ 301.6320-1(c)(2), Q&A-C1(iii). If a request is not so filed, the taxpayer gets an

equivalent hearing.

39

of determination, the different names which are assigned

to these documents are merely a distinction without a

difference when it comes to our jurisdiction over this case,

where a Hearing was timely requested.

Id. at 258 (emphasis added). The Court continued, stating that “[u]nder

the facts herein, where Appeals issued the decision letter to [the

taxpayer] in response to his timely request for a Hearing, we conclude

that the ‘decision’ reflected in the [equivalent hearing] decision letter

issued to [the taxpayer] is a ‘determination’ for purposes of section

6330(d)(1).” Id. at 259 (emphasis added).

Under the Court’s holding in Craig, the Court has jurisdiction to

review the equivalent hearing decision letter only when it is, in

substance, a section 6330(d)(1) “determination.” In Craig, the equivalent

hearing decision letter was in substance a section 6330(d)(1)

“determination” because the taxpayer timely requested a CDP hearing,

and thus was entitled to a determination. Craig, 119 T.C. at 259; see

Treas. Reg. § 301.6320-1(f)(1). And as previously discussed, see supra

p. 33, the regulation clearly provides that a timely request for a CDP

hearing is one made within the 30-day period.

Properly applied, Craig does not permit the Court to review a

decision letter from an equivalent hearing unless the hearing request

was timely filed within the 30-day period prescribed by the regulation.

Craig, 119 T.C. at 258–59. Viewing equivalent hearings as an equitable

exception to the 30-day period, as the opinion of the Court does, see op.

Ct. p. 27, is only possible if the request for the CDP hearing was not filed

within the 30-day period. In such a case Craig would be inapplicable.

The regulation clearly provides that Appeals can issue a determination

that is reviewable by this Court only if the taxpayer requested a CDP

hearing within the 30-day period. See Treas. Reg. § 301.6320-1(b)(1),

(f)(1). Craig does not depart from this rule. 119 T.C. at 258–59.

The regulations proceed from the assumption that the 30-day

deadline in section 6320 is fixed, i.e., not subject to equitable tolling. See

op. Ct. p. 16 (“Respondent argues [that the 30-day deadline] is not

[amenable to equitable tolling]; he argues that it is a fixed deadline and

equitable tolling is categorically precluded.”); see also op. Ct. pp. 13 n.8,

14 n.9. That premise is borne out in the text and in the dichotomy of

process the regulations establish for hearing requests filed within the

30-day period (CDP hearing) as opposed to those not filed within that

period (equivalent hearing). Compare Treas. Reg. § 301.6320-1(f)(1)

40

(“Appeals is required to issue a Notice of Determination in all cases

where a taxpayer has timely requested a CDP hearing. The taxpayer

may appeal such determinations made by Appeals within the 30-day

period commencing the day after the date of the Notice of Determination

to the Tax Court”), with id. para. (i)(1) (“A taxpayer who fails to make a

timely request for a CDP hearing is not entitled to a CDP hearing. Such

a taxpayer may nevertheless request an administrative hearing with

Appeals, which is referred to . . . as an ‘equivalent hearing.’ . . . Appeals

will not, however, issue a Notice of Determination.”), and Treas. Reg.

§ 301.6320-1(i)(2), Q&A-I6 (“Section 6320 does not authorize a taxpayer

to appeal the decision of Appeals with respect to an equivalent

hearing.”). Of course, as the opinion of the Court points out, the

regulations provide that the consequence of a timely requested hearing

is a “determination,” which this Court reviews while the consequence of

an equivalent hearing is a “decision,” which we do not review. See op. Ct.

pp. 10–11; see also Treas. Reg. § 301.6320-1(f)(1).

II.

Context of Promulgation and Amendment

A careful consideration of the history of Treasury Regulation

§ 301.6320-1, see Kisor, 139 S. Ct. at 2415, demonstrates that it is built

on the understanding that the 30-day deadline in section 6320 is fixed. 9

As explained below, such a reading is consistent with the context in

which Treasury Regulation § 301.6320-1 was promulgated.

A.

The temporary and final regulations published in 1999 and

2002, respectively, explained Treasury’s view of the 30-day

deadline.

On January 22, 1999, temporary regulations implementing

changes made by section 3401 of the IRS Restructuring and Reform Act

of 1998 (RRA), Pub L. No. 105-206, 112 Stat. 685, 746, were published.

T.D. 8810, 1999-1 C.B. 470. A notice of proposed rulemaking crossreferencing the temporary regulations was published on the same day

in the Federal Register. Prop. Treas. Reg. § 301.6320-1, 64 Fed. Reg.

3461 (Jan. 22, 1999).

9 It makes sense that the agency that promulgated regulations that reject

equitable tolling would litigate to that end, as respondent has done. On brief,

respondent propounds his view that the 30-day deadline in section 6320 is fixed. See

supra p. 39.

41

The relevant portions of the preamble to Treasury Decision 8810

provide the following background:

The legislative history accompanying RRA also explains

that Congress intended the IRS to grant an equivalent

hearing to taxpayers who do not request a hearing under

section 6320 within the 30-day period that commences the

day after the five business day notification period. H. Conf.

Rep. No. 599, 105th Cong., 2d Sess. 266 (1998).

T.D. 8810, 1999-1 C.B. at 470 (emphasis added). The preamble

continues, stating the following in the “[e]xplanation of [p]rovision”

section:

The notification must state the amount of unpaid tax,

inform the taxpayer of the right to request a hearing during

the 30-day period that commences the day after the end of

the five business day notification period, inform the

taxpayer of the administrative appeals available with

respect to such lien and the procedures related to such

appeals, and inform the taxpayer of the provisions and

procedures relating to the release of liens. Unless the

taxpayer withdraws the request that Appeals conduct a

hearing when the taxpayer has made a timely request for a

hearing, Appeals will hold one collection due process

hearing (CDP hearing) with respect to the tax and tax

period or periods specified in the CDP hearing notice (CDP

Notice). . . . If a taxpayer timely requests a CDP hearing,

the periods of limitation relating to collection after

assessment, relating to criminal prosecutions, and relating

to suits are suspended.

....

Lastly, the temporary regulations provide rules and

procedures with respect to the administrative hearing

(referred to as an “equivalent hearing”) the IRS will

provide to taxpayers who do not timely request a hearing

under section 6320.

Id. at 470–71 (emphasis added).

On January 18, 2002, the final regulations were published in the

Federal Register. T.D. 8979, 2002-1 C.B. 466. The preamble notes that

42

no comments on the temporary regulations were received during the

comment period and only two comments were received after the period. 10

Id. at 467. It is noteworthy that neither comment challenged or even

mentioned that the temporary regulations required a CDP hearing to be

requested within the 30-day period; or that the temporary regulations

deemed a taxpayer to have forgone his right to a CDP hearing if the

request was not timely; or that the temporary regulations provided

taxpayers with an “equivalent hearing,” not subject to judicial review, if

a request was not timely. Accordingly, these provisions were adopted in

the final regulations without further explanation.

B.

Treasury maintained its position regarding the 30-day

deadline when it amended the regulations in 2006.

On September 16, 2005, Treasury published a notice of proposed

rulemaking that proposed to amend Treasury Regulation § 301.6320-1.

See 70 Fed. Reg. 54,681 (Sept. 16, 2005). The preamble explained that

the proposed amendments were designed to improve efficiency in the

CDP process following six years of IRS experience. Id. at 54,682–83. In

relevant part, the proposed amendment maintained Treasury’s position

that a taxpayer’s failure to request a CDP hearing during the 30-day

period caused that taxpayer to forfeit such a hearing. The amendment

also set forth Treasury’s position that the IRS could, but is not required

to, treat an untimely request as a request for an equivalent hearing. The

preamble provides the following in the “[e]xplanation of [p]rovisions”

section:

The IRS receives a number of tardy requests for CDP

hearings. The changes to § 301.6320-1(i)(2) explain how

these requests will be treated. The proposed amendments

to the regulations add a new Q&A-I1 to § 301.6320-1(i)(2)

to explain that a taxpayer must request an equivalent

hearing in writing. A taxpayer may obtain an equivalent

hearing if the 30-day period described in section 6320(a)(3)

for requesting a CDP hearing has expired. Unlike an

Appeals determination in a CDP hearing, the Appeals

decision in an equivalent hearing is not reviewable in court.

Under new Q&A-I1, the IRS is not required to treat a

late-filed CDP request as a request for an equivalent

10 The two comments were generally directed at the temporary regulations

under section 6330 that were issued contemporaneously with those under section 6320.

See T.D. 8809, 1991-1 C.B. 476.

43

hearing. Section 301.6320-1(c)(2), A-C7 has been amended

to require that the taxpayer be notified of the right to an

equivalent hearing in all cases in which a tardy request for

a CDP hearing is received. It is expected that the IRS will

either send the taxpayer a letter or orally inform the

taxpayer that the CDP hearing request is untimely and ask

if the taxpayer wishes to have an equivalent hearing.

Id. at 54,683 (emphasis added).

On October 17, 2006, final regulations were published in the

Federal Register. T.D. 9290, 71 Fed. Reg. 60,835 (Oct. 17, 2006). They

adopted the above-referenced provision that was proposed in the

temporary regulations. The preamble to the final regulations discusses

multiple comments that Treasury received in response to the temporary

regulations. Id. at 60,835–39. None of the comments queried or

challenged Treasury’s position that a failure to file a hearing request in

the 30-day period caused the taxpayer to forfeit her right to such

hearing. Rather, commenters requested that Treasury provide by

regulation a specific period within which the IRS would allow a timely

filed request to be perfected. Id. at 60,836.

C.

Supreme Court and Tax Court jurisprudence at the time of

promulgation were consistent with Treasury’s view.

Treasury’s position in the promulgation and amendment of

Treasury Regulation § 301.6320-1 (1999–2006) is consistent with the

Supreme Court’s jurisprudence regarding jurisdiction at that time. Last

year, the Supreme Court acknowledged that its efforts to “bring some

discipline” to the use of the term “jurisdictional” have been relatively

recent. Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1500–01 (2022)

(quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)); see also Reed

Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010) (discussing the

Supreme Court’s then-recent effort to curtail “drive-by jurisdictional

rulings”). 11

11 A brief for amicus curiae was filed by T. Keith Fogg and Audrey Patten,

counsel for The Center for Taxpayer Rights, in support of petitioner. Therein, amicus

observed that as early as 2004, the Supreme Court acknowledged that the Court itself

had “been too careless” in its use of the term “jurisdictional.” See Brief of The Center

for Taxpayer Rights at 4, Organic Cannabis Found., LLC v. Commissioner, No. 38122L (T.C. Jan. 1, 2023) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)).

44

Moreover, Treasury’s regulatory position was consistent with the

Tax Court’s jurisprudence at that time. The opinion of the Court

correctly states that “[i]n Kennedy v. Commissioner, 116 T.C. 255, 262

(2001), we held that Appeals is not authorized to waive the 30-day period

for requesting a CDP hearing and that Appeals is not required to provide

a CDP hearing requested after the 30-day period.” See op. Ct. p. 3.

Accordingly, Treasury’s position that the 30-day deadline was fixed, and

its articulation of that position in the promulgation of the original and

amended regulations, was consistent with caselaw at that time.

III.

Conclusion

The text of Treasury Regulation § 301.6320-1 consistently and

clearly treats the 30-day deadline as a fixed deadline (including an

unmistakable rejection of equitably tolling the deadline for taxpayers

residing outside of the United States), and the context of its

promulgation and amendment is consistent with that view. Therefore, I

respectfully dissent from that portion of the opinion of the Court that

holds that the regulations do not preclude application of the doctrine of

equitable tolling to the 30-day period.

FOLEY and BUCH, JJ., agree with this opinion concurring in

part and dissenting in part.