UNITED STATES TAX COURT .

UNITED STATES TAX COURT .

ARLENE L . POLLOCK, Petitioner v . .

COMMISSIONER OF INTERNAL REVENUE, Responden t

Docket No . 17755-07' .-

Filed February

12,'2009 .

P sought relief from joint liability-for unpai d

taxes under sec . 6015, I .R .C . R sent her a notice o f

determination` denying relief,' but at'a time befor e

Congress gave the Tax Court jurisdiction to review suc h

denials . . 'R then sought to collect the taxes in a lien-

enforcement action . This prompted the District Cour t

hearing the lien-enforcement action to invoke th e

doctrine of equitable tolling and give P 90 days t o

file a petition with the-Tax Court . P filed her . ,

petition within the time limit set by the Distric t

Court's order . R moved to dismiss for . lack o f

jurisdiction because, .P filed her petition more than 9 0

days after R . had mailed the notice of determination t o

her .

District Court's order .

SERVE, FEB 12 2009

Held , further : Sec . ° 6015, I .`R .C ., sets a ,

jurisdictional time limit which may not be equitably

tolled . The Tax .Court has no, jurisdiction :to 'revie w

P' s petition .

:. . Jason Grimes , for petitioner .',

. 11

- Leonard Provenzale , for respondent .

HOLMES,

Judge : The IRS sent Arlene Pollock a notice~o f

determination denying her request for innocent-spouse relief o n

April 27,

2006 .

She filed .a petition seeking review of that

notice more then a year later .on .August 9, 2007 The Code give s

taxpayers only 90 .days to file . Pollock waited 469 days . Do themath, the Commissioner tells us, and dismiss her petition fo r

lack of jurisdiction .

Not so fast, says Pollock .

On the . day that the . Commissione r

mailed his notice of determinatio n

that the Tax Court . lacke d j .uris di .ction,to

position had'already been endorsed,by th e

would be again five days later,.by the Eight h

The Court acknowledges the outstanding

petitioner ' s counsel in this case .

`Commissioner v . Ewing , 439 F .3d .1.009 (9th Cir' Feb . 28,

2006) revg . . 118 T .C ., 494 :1(2002),' vacating - ;122 T .C . 32' F(2004)

3' Bartman v. . Commissioner , 446 ' F .3d .:785 (8th Cir .,May 2 ,

(continued .

25, 2006, two days before,Pollock's . 90-day window would .'shut, we

ourselves decided that we had no jurisdiction .4 And on-Augus t

25, 2006 ,

the Chief Counsel of the IRS . told° his lawyers to move

to dismiss any such petitions still pending before us for lack of

jurisdiction'., Congress later amended the Code ' to-give us

jurisdiction and made-the change effective for all taxes " arisin g

orremaining,unpaid on or after [December 20, 2006] ."5

Pollock' s

taxes-remain .unpaid to this day . How can the usual 90-day limi t

apply to her?-- ,

The question presented :- Must we dismiss Pollock's case for

failure to file a petition with us when we would have had no-

~ Backaround

Pollock married in'~1986, and had two children . She .has a n

eighth-grade education and was a stay-at-home .mom for most of the,

marriage . Differences between her and her husband grew and .

became irreconcilable, and they •divorced in-November 2000, with

Pollock getting the family's home . Left behind from the marriage

was an enormous tax debt--for the years 1995-99, the,Pollocks

jointly owed 'a total of $183, 3 31, which with interest has grow n

2006),

. . . continued )

affg . in part,vacating in part T .C . Memo . 2004-9

Billings v . Commissioner

•127wT .C . . 7 (2006) .

-5 Tax Relief„and Health Care Act of 2006 (TRHCA) ..,`Pub .

109-432, div . C, sec . .408 (a) , (c), 120 Stat . 3061, .,-3062 .

to ;_over,$400,000 . Neither;,Poilock ;paid-and, between August 2001 ,

and May 2002 ; the IRS :sent them notices-that, it had filed federal

tax liens (NFTLs) .again.st them .

.It is from this debt that Pollock- seeks ' relief . Tha t

liability is hers because the Code makes .

who sign" a'join .t

return jointly and severally, liable-,for .any tax due . Sec .

6013 (d) (3)' .6 But relief is available in some cases under . section,,6015 . . And one way, fora spouse to win r .elief.,under that section . .

is to show that,`"taking into account all the,; facts and

circumstances, : it is inequitable' to hold, .[:her-] ,liabie .:tfor an y

unpaid tax or any deficiency (or: any ;,port on, of either) .,"= Sec .

6015(f)(1) . Our jurisdiction over, such nondef_iciency'stand-alon e

petitions' brought under section . 6015-(f) was unclear in 2006 .

Even before,that,- back in 2002 when the Commissioner sen t

his last NFTLxto the Pollocks, .we were already .analyzing-.our-

jurisdiction over such cases . In Ewinq•'v :-Commissioner , 118 :T .C .

494-'(2002) ( Ewing; I -) , we . held- .-at, the suggestion of ,the °

6

Unless

otherwise

indicated, all

section references are t o

the Internal Revenue Code .

"Nondeficiency'' because : the IRS accepted,t-he retur n

computing the unpaid tax as filed and asserted no deficiency, an d

"stand-alone" because the,claim,fordinnocent-spouserelief wa s

-made under section 6015 and not as"part of a deficiency action . or .

as part of a collection due, .process,hearing,under section 6320 o r

6330 .

See Billings `, .'127- T C .,# at 7 .,

government--that we did have .jurisdiction .8 Our initial analysis

did not go unnoticed . In 2004 the Second Circuit expressed

doubt .

Maier v . Commissioner ; 360 F .3d 361, .363 n .1`(2d Cir . .

2004), affg . 119 T .C . .267 (2002) . The Government then changed

its, mind and argued that we . had no jurisdiction when Ewing I ,was

appealed . In February 2006, the'Ninth Circuit agreed with•the

.

Government's new position . - Commissioner' v . Ewina; 439-F .3.d 1009

(9th,Cir . 2006), revg . .

Ewing I , vacating 122 T . C . 32 . ( Ewina II) .-

.Pollock began'the process that would lead to'this case sometime

between Ewing I and the Ninth Circuit's,reversal by-.filing a For m

8857 with the IRS .

On April 27, 2006, four months after the Ninth .Circuit°.ruled

in Ewina , the IRS mailed a notice of determination- denying

innocent-spouse relief,to' .Pol'lock . Prominently featured on. its

first page was .~a- warningthat she 'had only 90, days to .file a . . ._

petition : challenging it . But where? The notice said Tax Court ,

but just days after the Commissioner . mailedthe notic e

8 IRS litigation policy at the time was to concede our

ability to hear all claims for relief under- section : 6015 ,( f) . See

IRS . Chief . Counsel Notice N(35)000 - 338 (June 5 , 2000) ..

9 Form 8857 , Request for Innocent Spouse Relief,''~ is filed by

a spouse seeking relief from joint - and several liability and

.related penalties .

Pollock claims she submitted Form 8857 i n

August 2002 . The Commissioner claims that .. she first requested

innocent - spouse relief - in December 2005 , and then . amended her

Form 8857 in January 20 .06 .

We sidestep this dispute ; resolving

it would not affect our analysis of"-the Commissioner 's motion to'

dismiss .

Pollock, the Eighth- .Circuit,-in Bartman v°. Commissioner, 446~F .3 d

785, 787 , (8thm Cir . 2006) , :. .affg . in "part . vacating in part T . C : .

Memo . .2004-.93, adopted the Ninth)'Circuit' .s position . The final,

blow came on July 25, : 2006, when we' . .revisited the question and

.agreed with ,these circuit courts that,we_did not :hav e

.jurisdiction over cases like3Pollock's .,See Billings-v .

Commissioner ; .127 T C .

7, (2006 )..

Two days , later ,

Pollock' s .9 0

day deadline for filing` with us,, expired .,: She had at . this point

never filed a petition contesting the IRS .'s .denial,of relief.with -us or any, other, cour t

Later that summer, the IRS's Office of Chief-Counsel .

notified IRS attorneys-about how they should handle section

6015(f) nondeficiency .stand-alone cases after Billings .' IRS

Chief Counsel- .Notice CC-.2006-020, .(Aug. ., :25, ,2006) . This ..notic e

.instructed IRS .attorneys .to file motions .: to dismiss-for lack of .

jurisdiction in, all :nondef i, ciency,stand- alone .-cases . . Id .

Although this was' already' happening ., with success(as .the'. , Ninth ,

Circuit's ruling in Ewing proved) ., this notice .coordinated the

effort and changed, the IRS's previous official stance that we ha d

jurisdiction over these cases .

Notice CC-2006-020

(Aug .

IRS Office of Chief '. Counsel ;

2006) ; ;see supra n .8 .

A month later, the Department ,

Justice began 'a collecti o- n

suit against the Pollocks by filing a lien-enforcement action "i n

the' Southern District of Florida . The Government'-s goal was

collect more than $378,000 in income-tax debt from both Pollocks,

and more than $318,000 in an unpaid trust-fund-recovery penalty

owed by Pollock's former-husband alone .10 If the Government won ;

it would be able to foreclose on the home transferred to Pollock

during the divorce settlement .

On December 20, 2006, Congress amended section 6015 to grant

us jurisdiction to hear-section 6015(f) nondeficiency stand-alone

cases ., TRHCA,div . C, sec . 408(a), (c) ; sec . 6015(e)(1)(A) . The

amendment was effective for tax liabilities "arising or remaining

unpaid on or after the date of the enactment .

In 2007, the Commissioner moved for summary judgment against

Pollock and her former husband in District Court . Pollock argued

that she is entitled to innocent-spouse relief under sectio n

6015(f), but everyone now acknowledges that this is not a defense

to a lien-enforcement action ." On July 9,2007, the Distric t

10 Taxes that employers withhold from their employees' wages

are known as "trust fund taxes" because they are deemed a special

fund in trust for the United States under sec . 7501(a)'. Th e

Commissioner may collect unpaid employment taxes from a

"responsible person" within the company ; that is, someone who wa s

required to pay over the tax . The money that is collected i s

called a trust-fund-recovery-penalty tax .

Sec . 6672 ; see als o

Bennett v . Commissioner , T .C . Memo . 2008-251 .

" This mayor may not be .corre .ct

United States V .

Shanbaum , 10 F .3d 305, 310 (5th Cir . 1994) and United States v .

Haag , 94 AFTR 2d 6665, 2005-1 USTC par . 50,131"(D . Mass .2004) ,

affd . 485 F .3d 1 (1st Cir . 2007), don't question the jurisdictio n

of Article III courts to•entertain innocent-spouse defenses,

while in both cases rejecting them on other grounds .

United

'States v . Bovnton ,_99 AFTR 2d 920, 2007-1 USTC par . 50,328 (S .D .

(continued . . .)

Court granted summary judgment agains t

But-on July :12 the same court staye d the case against Pollock and ,

granted .her 3 6 days .to .bring,a claim for relief, before . our . Court .

In-its order, the District Court .explained that .the- special ; ..

circumstances of this case--namely, the disordered state of th e

law in 2006- :-justifiedtolling the 90-dayilimit :

Ms . Pollock' s ; failure to file ., a petition in the ,

ninety-day window is excusable, given the uncertaint y

in(the law over this issue ., I,findthat the :%ninety-day

review period for 6015(f)„petitions is analogous to th e

ninety- day ; window for filing .,a complaint . with- the EEO C

in Title VII cases . In .that situation, the Suprem e

Court has held that thefiling .window<isia "requiremen t

subject to waiver, estoppel, and equitable . tolling .

Zipes v .~ 'TWA, 455 U . S .,. 385, 393 (1982) . Waiver and

equitable tolling should also be available to thos e

,,seeking review of-a . denial of innocent spouse relief,

although like-the Title VII cases,„ it should be granted

sparingly . _See ;Baldwin ; County Welcome Center . v . Brown ; ,

466'U .S . 147, 151 (1984) .

Ms . Pollock's situation merits either a waiver or

tolling of the ninety - day„ time period~ for filing .,a ;

petition for review with the tax court . ; The uncertai n

state of the law on . the jurisdiction"of the , tax .,,cour t

at the time she would have' .had to 'file the petitio n

excuses her - failure to file .

11 ( . . continued )

Cal . 2007 ),- foil- owing United States v . Feda , 97 AFTR , 2d .1985,

2006 - 1 . : USTC , par . . 50 ,3 30 ;(N`. D . ,Ill ., 20,06 )_,, ' does question the

jurisdiction of District = .: Courts to „ hear the merits _ of i-nnocent-spouse defenses'-raised as a defense against enforcement .actionsI .',

It concludes that section "6015. limits jurisdiction to reviewin g

denials . of relief in cases ,before ;the Tax . Court,, sec . 6015 (e), (1 )

and refund suits .before a District, Court . or the Court of Federa l

Claims,, sec . 6015 .(e) (3)

United States v . Pollock , . No . 06-80903 (S .D .,Fla ., .July 12, 2007)

(order staying case, granting defendant Arlene :POllock 30 days to

file for .Trelief in .United States Tax Court) :

Pollock filed her : .petition`with us by the deadline set in

the District Court's order, and we must now' decide whether we

have jurisdiction to hear her case . She has'been a Florida

resident ..-throughout ; and we held oral argument`in, ;Miami on the

Commissioner's-motion to dismiss thiscase°for lack o f

Discussion

Our Court is one of limited .-jurisdiction, and•we hear onl y

tho.s :e cases Congress tells- ;,us we . can . Sec . 7442 ;

Commissioner , 83 T .C .

Kluger v ." .:

309, ~ 314 (1984) Like` other,. federal .,,

courts, however, we do have :jurisdiction in- .all cases to decide

whether we have jurisdiction .

Kluger , 83 T .,C'. "at 314-15 . . ` a:And in .

this particular case we look-at four questionsWhat weight do ; `we give to the . District Court's order ?

Is section 6015 .(e)'s deadline for filing petitions wit h

us a jurisdictional .limit or a statute of limitations?

Can we construe section 6015(e) to give us jurisdiction

over this case ?

Does the effective date ofthe law granting us

jurisdiction apply to Pollock's case in a way tha t

would,give .us jurisdiction?

I- .

The `District Court's Order `and ,Law+; of the Cas e

We _ begin . by,, asking if the . Distr'ict' Court has.. answered- the' .

.question ' of our jurisdiction -for us . Ther legal doctrine„;that

seems to±be involve'd}is "law_ofthe case"- namely, that one .

court's decision over' a .'legal ,question . generally;, governs . °late r

stages of litigation in ; the same case .

Indus . Operating Corp . ,

Christianson .°v . Colt

486 U :S :f :800 , 815-16k ( 19.88)

Polleil v =

Commissioner ;' 94 T .C . . 595, -60 .1°'(1990 )) Law of °the case .,promotes

,finality and efficiency by treating an issue as .settled'once,it's .

been decided .

Christianson ; 486 •>U .°S 'a,t 816 .

We, frankl y

acknowledge, however, that, law .-of-.the-case doctrine may' no t

the right source of .3law here,because .courts-generally appl .y,the '

doctrine .: where there's a ; single ;.-case- being, swatt ed' from . 'one- court; '

to the . next .

But the District ,Court, here . did not transfer th e

entir e

of whether Pollock deserves innocent-spouse, . relief . Still, if we ::

ultimately' resolve the . innocent-spouse issue in . Pollock's favor ,

her .lien :.case would go away .,, This makes us .= .tentativelyrthin k

that transfer of the'innocent-spouse issue is sufficientl y

similar to .other case transfers discussed in ,thi"s corner- of th e

law to .at .least consider thedoctrine here .

Courts also commonly apply law of, the case . .,vertically-between inferior and superior courts where . obedience and no t

deference has to'be the rule .

Id . ;

Covell v . Heyman , 1 .11 U .S .

11

176, 182

( 1884 ) .

But law of the case also constrains courts at

the same level--"coordinate courts" as the caselaw calls them :

A court has the power to revisit . prior decisions

of its own or of a coordinate court in any

circumstance, although as a rule courts should be

loathe to do so in the absence of extraordinary

circumstances such as where the initial decision was .

"clearly erroneous and would work a manifest injustic e

Christianson , 486 U .S . at 817 (quoting Arizona v . California , 460

U .S . 605, 618 n .8 ( .1983)) . Law of the case in this situation i s

a guide to exercising discretion, not a limit on a court' s

power--making it something of an "amorphous concept ." ' Arizona ,

460 U .S .

at 618 .

The Eleventh Circuit, which would be the venue for an appea l

in this case, described law-of-the-case doctrine--and in

context more like ours, between two coordinate courts--in

a

Jenkins

Brick Co . v . Bremer , 321 F .3d 1366 (11th Cir . 2003) . A District

Court in Alabama had transferred a case to a District Court in

Georgia . The choice to transfer, rather than dismiss, the case

meant that Alabama law would still govern the outcome--and the

parties were convinced that Alabama's and Georgia's law differed

in decisive ways . The Eleventh Circuit recognized and applied

the law-of-the-case rule established for coordinate courts in

Christianson , 486 U .S . at 817 . . It clarified the . phrase "clearly

erroneous." and outlined the standard of deference given to a

coordinate court :

- 12

Courts must, .rarely invoke the, "clear,' error"

exception, lest the . exception swallow the rule . . With

this principle in mind, the . .exception can . be restated .f

this way: in a close : case , a court must defer to the

legal conclusion of,-a coordinate court`in the .,same

case ; only when the,legal error, is beyond :-the scope-of

reasonable debate should-the courts disregard the prior' ,

ruling :

Jenkins Brick, 321 F . 3d ats 1370 .71 .

Jenkins Brick also briefly explained that "manifest .

injustice" existed because applying Alabama law would violat e

Georgia's public policy .

Id .

at .1371 . We likewise hold that

expanding our jurisdiction beyond the bounds set by Congres s

would violate federally established public policy . We thus . turn :

the delicate question of whether the District Court' s

conclusion that th e fact s of Pollock's case justi"fy .an equitabl e

tolling of the usua l

90-day limit is a "close case " or'a "clea r

error .

II . .

Section 6015's 90-Day Limit :

Limitations?

Jurisdictional or a Statute of

°, .

.The- Commissioner argues that no :court has,: the power to .

equitably toll the .90-day 'limit He contends that when Congres s

expanded our, jurisdiction to include nondeficiency,-, .stand7alone, .,-. .~I

cases , it . did not specifically provide . for equitable, tolling, of

the' existing°90-day . limit for potential petitioners like Pollock..that,the 90-day limit is : jurisdictional -not a, r .. x'Andhesaystatute of limitations--so we can't ex'tend . :it-even i'f we wanted

t

13

Pollock-contends that section 6015 invokes-equity 'on'it s

face and should therefore allow for-'equitable`tollin'g . •She also

argues that equitable tolling is especially appropriate in her

case, . given the very peculiar situation she . faced . This las t

ar ument we can , g quickly reject--the possibility, of equitabl e

tolling isn't .dependent on the underlying'facts .'of a particular,

case, but rather on whether the language ofa particular time

limit can be extended .as a :matter of law .,-See John R . . San d

.1281S .'

753-54

(2008) ;

Ct . 750 ,

Zipes v . Trans World Airlines Inc . ,'455 U .S . 385 ,

393-(1982) .

This'gets us directly to the Commissioner ' s most compelling

point --that- the District Court misconstrued section 6015 ' s 90-day

deadline to be a statute of limitations .ratherthan a

jurisdictional requirement . This-distinction is crucial :

A

statute`of limitations simply prescribes a period in whic h

.,court may enforce certain rights .

Young V . United States ,-53.5

U .S . : 43, 47 (2002) . Courts may equitably .toll them .unlessit :, :

would be inconsistent with the particular terms'of the relevant

statute .

Id . -at ;.49 ;

John R . Sand 2&' Gravel Co . , 128 S ._Ct at

753 . They "protect a_defendant's" .case-specific interest in .- '

-timeliness," John R . Sand & Gravel Co . , '128S . Ct . at 753, and .

courts may be able to look past delay because a . limitations

period is, like other affirmative defenses, subject to exceptions

14 ;. such °as, waiver ,,, . estoppel --or equitable ! tolling, ,. Zipes , ,, 455 U . S .

at 393 ;

In re .Int' .l . Admin .

Servs . ; tInc ., , 408 ,F . 3d 689 , 701=_ (11th . ,

Cir .2005) .

But jurisdictional time limitshave ;altogether different ,

consequences . . .If.a .deadline is ;.ju-risdictional, a~court ;may no t

use .equitable tolling to extend it .

Workers' Comp . . Programs,

Cooley v . Dir . Officeaof

89,5 : F .2d 13;0 .1, 1303 (11th ; C r ; . 1990 )

(citing- Shendock,v . Dir ., Office of Workers' Comp .aPrograms , 893

F .2d .1458, 1466 (3d,Cir . 1990)) . And this is true even if th e

result is harsh : ¢`The . age,=old rul.e,,-that a court may not) in :anycase , even in the interests of justice, extend its .jurisdiction`,

where none .exists has,.alwaysworked injustice in particular

cases ."

; Christianson , .486 U :S .at 811 In a black .-lung

benefits case , for,example,,,a court ; received a petit-ion i n

Atlanta one day{after the expiration of the,,limitationsiperiod-7 1

even though it was mailed ,eight days earlier from Birmingham, ; _

Alabama ., The Eleventh Circuit held that it, could ., not grant

.relief despite .the - unusual . ;delay in del .ivery ., because `

"[j]urisdictional,l-imitations and the . : policies-which they embody .

must . be honored even in the face of .. apparent injustice'. or an

administrative agency's obvious misapplication or-violation'o f

12 But it's possible that, in close cases , harshness in

.result itself may affect a court's inquiry into the-statute's

character . See Albillo-De Leon v . Gonzales `, 4`10'F .3d' 1090, 1096

(9th Cir . 2005)

15 substantive-law . "

Brown v .-Dir ., Office of Workers'

Comp .

Programs , 864 F2d 120, 124 (11th Cir . 1989) . In United States

v . Brockamp , 519 U .S .°,347 .(1997), the Supreme Court similarly .

held that, although a taxpayer's mental disability might be'a

valid reason for equitable tolling, the Court could not equitably

toll section 6511's deadline for filing•a refund claim because it

contained no "implied equitable tolling" exception .

Id .

at 348-

49, 354 .13 In other cases, courts have held that mistakes made

by 'a pro se litigant or an agency's miscommunications about the

proper appeals process cannot justify equitable tolling of a

jurisdictional deadline . "

We distinguish statutes of limitations from jurisdictional

deadlines by applying the normal rules of construction . We start

with the words of the statute and their context . See Pugh v .

Brook (In re Pugh) , 158 F .3d 530, 534 (11th Cir . 1998) . We look

past plain meaning to determine congressional intent only if th e

13 Congress later amended section 6511 to add subsection

(h), which allows equitable tolling in certain circumstances when

the taxpayer is disabled . IRS Restructuring 'and Reform Act of

1998, Pub . L . 105-206, sec . 3202(a), 112 Stat . 740 .

14 See, e .g .,, Cooley v . Dir ., Office of Workers', Comp

Programs, 89.5 F .2d 1301 (11th Cir . 1990) (relief denied where

appeal timely mailed but sent to wrong office) ; . Shendock , 893

F .2d 1458 (3d Cir . 1990) (no relief for pro se litigant who file d

appeal with'wrong office on attorney's advice) ;. Pomper v .

Thompson , 836 F .2d 131 (3d Cir . 1987)-(relief denied where

petitioner filed within time instructed by agency but,later than

the law allowed) .

- 16

language"is ambiguous, applying the plain meaning would lead'to ,

.(maybe) where-there°_is clear evidence .o f

an absurd result, .or

contrary-legislative intent .

In re Int'l Admin ., Servs . Inc . , .,_

408 F .3d °at 707 . . ,

,,We begin,with-the=Code :

SEC . ,:6015 (e) .3; Petition . for Review; by Tax Court .,-..

. --In the case of * * * :._ a n

(1) In,

individual who requests equitable relief unde r

subsection- (f) -(A) In general, .--In addition to any otherremedy provided by law, the individual ma y

petition the Tax Court (,and the Tax, Court shall ,

have jurisdiction) to determine the appropriat e

relief available to the individual under thi s

section if such petition is filed--

(i) at any time after the earlier of.(I) the date the Secretary mails ,

by certified or , registeredmail to the

taxpayer's last known address, notice o f

the Secretary's final determination of

relief available to the individual, or, .

(ii) ._not later than the close of the

'90th day after the `date 'described'"in "claus e

(1),(I) . [Emphasis added . ]

The most 'important-point to notice' is that, tie . Code her e

Statutes granting a' court "jurisdiction"" if 'a case ' is"'filed by

- 17

stated deadline . look more like jurisdictional time limits .

Zipes ,

455 U . S . at'393-94 .

We ourselves have already analyzed a very similar question

about section 6330's 30 - day deadline for filing petitions to

challenge the Commissioner ' s determinations on how to collect

unpaid taxes .

affd .

In Boyd v .

451 F . 3d 8 (1st Cir .

Jones v .

Commissioner ,

Commissioner ,

2006 ),

T .C . Memo .

124 T . C . 296 ,

303 (2005),

we affirmed our decision in

2003-29 ,

holding that section

6330 ( d)(1) is a jurisdictional deadline that can ' t be extended .

And that section has language quite similar to sectio n

6015(e) (1) (A)'s :

SEC . 633 .0(d) . Proceeding After Hearing .-(1) .Judicial review of determination .--The person

may, within 30 days of a determination under this

section, appeal such determination to the Tax Court

(and the Tax Court shall have jurisdiction with respect

to such matter) . [Emphasis added . ]

Courts also commonly distinguish statutes of limitation from

jurisdictional deadlines by the complexity of a statute's

language .

Brockamp , 519 U .S . at 350-51 . Finding that sectio n

6511--a statute that on its face doesn't contain the word

"jurisdiction" .or other jurisdictional terms--did not allow for

equitable tolling, the Supreme Court stated tha t

[o]rdinarily limitations statutes use fairly

simple language, which one can often plausibly read as

containing an implied "equitable tolling" .exception .

* *, But § 6511 uses language that is not simple . Its

sets forth its limitations in a highly detailed

18 technical manner, that,, linguistically speaking,, cannot .easily be read as containing implicit exceptions * * *

Id .

at 350 (citation omitted) . The Court also pointed'out tha t

section 6511 ."sets forth explicit exceptions to its basic tim e

limits,"'a list which

doesn 't include equitable tolling .

at '

Id .

351 . The presence of such detailed statutory rules is a signk

8

. .

i

s

that "Congress did not intend courts to read other unmentioned,

open-ended, `equitable' exceptions into the statute that i t

wrote ."

Id .

at 352 .

Statutes of limitation, on the other hand, have no such

jurisdictional identifiers, and courts construe them with a

presumption that they were written against a backdrop of legal

default rules and doctrines that they can legitimately apply whe n

the statute is silent and the facts of a particular case war-rant

it .15 And one of these default rules, as the Supreme Cour t

.recently clarified, is a rebuttable presumption in favor„o f

equitable'tolling's .availability in suits brought .by,,a privat e

15 See Young , 535 U .S . at 49-50, 52 (holding that an express

equitable tolling provision is not needed for the doctrine's ;

availability in a bankruptcy statute) ; Albillo-De Leon , 410 F .3d

,at .1098 the absence of any language clearly proclaiming the

filing deadline as `jurisdictional' suggests that` the statute is''

not,jurisdictionalbut a statute of limitations") ; cf . Doe V .

KPMG, LLP , 398 F .3d 686, 689 (5th Cir . 2005) ("Because Congress

prefers to provide explicit tolling exceptions ''to the 'limitations .

periods contained in federal tax law, by implication, it'does no t

.intend courts'to"invoke equitable tolling to alter th e. plain text

of the statutes at issue") .

19 , party against the . Government .

John R . Sand & Gravel Co . , 128

S . Ct . at 755-56 .

For example, the Supreme Court has . ruled that the

limitations period--found at 42 U .S .C . sec .

405(g)

- for those

appealing a denial of Social Security benefits is-a statute of

limitations and courts may use equitable tolling . when

appropriate .

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

(1 .986) . But the statute being . construed there .,did .not use any

jurisdictional terms, explicitly provided discretion to the

Commissioner of .Social Security-to extend the 60-day filing

deadline, and lacked any other indication that Congress wouldn't .

want courts to apply equitable-tolling doctrine .

Id . ; see

Jackson v . Astrue , 506 F .3d 1349, 1353 (11th Cir . 2007-).

We think that section 6015 is more like section 6511 or 6330

than the statute at issue in

Bowen --as we've noted, section 6015

uses the word "jurisdiction" and it's part of a system of,

detailed rules on requests for relief and appeals from theirdenial . There are also no explicit reservations of discretion to

extend the deadline . We conclude that this is not a "close .

case," and hold instead that section 6015(e)(1)(A)'s 90-day .limit

is jurisdictional and therefore doesn't allow for equitable

tolling, even though such a result may be very harshfor Pollock .

We need not . comment on whether the underlying circumstances of

Pollock's situation merit equitable-tolling--"Tax law, after all,

20 is not normally characterized by case -specific exceptions,, .

reflecting individualized equities ."

III .

Brockamp , 519 T .S .

at 352 . .

Liberal-Constructio n

Having decided that~s :ection .6015( e)'s time limit is .,

jurisdictional makes°Pollock's position . even more'difficu.lt . ., But'..

she correctly points out that, at the time herpetition was due, ,

she .actually had no forum in which to bring , her ,,claim, . meaning ,

that .the Commissioner is . arguing not just that she-failed to, file ,

timely petition, . but that she failed to file a timely peti-tion° "

in a court .that at the time was without . jurisdiction to ;hear her :

:case

"By the time Congress amended the Code to give u s

jurisdiction, her 90-day window had-already closed ,

This leads us .to -an' important question--how flexiblewe-,can .,

be"in°construi~ng section 6015-to provide her with .'a forum , for he r

,,case under these :unusual circumstances ?

[W]"e lack, general equitable powers to ;expand "our. .

statutorily prescribed . jurisdiction ."

T.C.

Woods'y .- Commissioner , 92--

776, 7..85 (`1989) . And though we can apply . equitabl e

principles, to decide a case over which we do have' ;jurisdiction-,l 6

our inability to-apply those principles to expand our . ,

jurisdiction : to cases where we otherwise wouldn't .have- it i s

16 For example, we can apply equitable principles such as

waiver, , duty' of consistency, estoppel, substantial compliance', `

abuse of discretion, lache .s, and the tax-benefit rule . . Woods,

T .C . at'784-85

92.

21 really .nothing more . than a fancy way of saying we can't override

statutory limits-o .n our power .

Offset v . .Commissioner ,

Flight Attendants Against UAL

.165 F .3d 572, 578 (7th Cir . 1999) We

are_similarly reticent in our refusal to create deductions,

credits, or exclusions out of a desire for a fairer outcome--we

understand that this would be legislation, and legislation

belongs exclusively to Congress .

Paxman-v . Commissioner , 50 T . C .

567, 576-77 (1968), affd . 414 F .2d-265 (10th Cir 1969) ;

Farmer

v . Commissioner , T .C . Memo . 1994-342 .

We have nevertheless decided cases involving .the limitations

period found in section 6213(a) . (establishing our deficiency

jurisdiction) that, at first glance, may seem to speak to the

issue .s .in this case choosing to give the language of that

section a "broad, practical-construction rather than . a ;narrow,

technical- meaning ."

Lewy v . Commissioner , . 68 T .C . 779, 781

(1977) . "Where . the statute is capable of two interpretations, w e

are inclined to adopt a construction which . will permit us . t

retain jurisdiction without doing violence to the statutory

language ."

Id . ; see also Loyd v . Commissioner , T .C . Memo . 1984-

172 .

Section 6213(a) has two requirements that must be met :

First, the IRS must

issue .a valid notice of deficiency, an d

second, the taxpayer must timely file a petition with our Court .

Frieling v . Commissioner , 81 T- .C . 42,`,46 (1983) . The

22 Commissioner's mailing,of the notice of deficiency'starts .a,,90day (or, 150-_day,,if . the notice is addressed to a : person outside

the United States) . period : in which the taxpayer may ;,petition :Your ;.

Court for redetermination . Sec . 6213(a) . The S IRS,,may . send ,the :.

notice ,to the,,,taxpayer' s last known address,,.. and' as long as i

does , the .notice .; is valid- whether or not he - receives . it . ~ L fte r

v . Commissioner, 59 .T .C . 818, .820-21,(1973) . If . the SIRS uses,the,,,

wrong .address ;°,theinotice is still valid as°long as the'taxpaye r

receives it in time to file a timely petition .-

Pugsley v .

Commissioner , , 74-9'F . 2d, 691, 692-93 (11th Cir . 1985 ) ;

Frieling , 81 ;

.T . C . at°~ 5 :3 . This has led . to a number of cases in . which we have

had .to decide how long is enough time for a taxpayer to .:file,,with

this Court . .'7 But even this flexibility doesn'tMead to th e

tolling Pollock s .eeks . Instead, the result of,a decision in ,

favor of` the` taxpayer in such a . case is that the notice •o .

deficiency itself is invalid,"

See ,. e ..g. .,

Sicker, v . .

' Commissioner ; 815 F .2d 1400, 1401 (11th Cir . 1987) .-

But see . Ga w

v . Comm issioner , T .C . Memo . 2007243 ; Fileff v . Commissioner , . T .C . Memo . 1990-452 ; Loftin v .

Commissioner , T .C . Memo . 1986-322 .

17

See, e .g .,

Lindstrom

16Cf . Kuykendall v . Commissioner , 129 T .C . 77 (2007) .

Since thetaxpaYers received their notice of deficiency'with,onhy .,

12 days remaining before the limitations period expired, we held :.

that they could . contest . their underlying tax liability at their

collection due process-hearing because section 6330(c)(2)(B)

contemplates actual receipt of the notice of deficiency5by,the

taxpayers.

See sec . 301 .6330-1(e)(3), Q&A-E2, Proced''r& Admin .

Regs .

23 v . Commissioner , 45 F .3d 461, 468 (D .C . Cir . 1995) (failure to

address notice to last known address tolls 90-day .or 150-day

period until actual receipt), revg . T .C . Memo .,1993-379 .

Within this same line of cases, we have had to decide how

strictly to apply the language of section 6213(e) allowing 150

days to file a petition "if ;the notice is addressed-to a person

outside the United States ." In Lewy,

the taxpayer was a resident

of France with an office and an apartment in New-York City .

Although the IRS sent the notice to his New York address, the

taxpayer left for. France. the next day and didn't receive the

notice until day 81 . We held that he was a "person=outside the

United States" and so had 150 days from the time of mailing to

file' with,this Court--even though he was actually . in the United

States on the day the Commissioner mailed-the notice of

deficiency--because "petitioner's absence resulted as a natura l

and probable consequence in his del,ayed,.receipt of the notice . "

Lewv , 68 T .C . at 784 .

We can find no such wiggle room in section 6015(e) as

applied to this case . Its language is clear and is not capable

of more than one interpretation . Pollock is right that the 2006

amendment of section 6015(f) gave us jurisdiction over claims

arising from-liability remaining ' unpaid `as of the amendment' s

effective date . But the Commissioner is correct that the

unamended language of 6015(e) limits our new jurisdiction to

;claims 'filed within 90 days of the IRS's issuing itsr notice aof .

determination .

IV .

The Effect of,the Effective Dat e

Pollock makes one more-sally at the Commissioner's defense s

amendment .to section 6015(e) was effective-wit h

respect to liability for taxes "arising or remaining,-unpaid .,onlor,

after"''December 20, 2006 . Pollock asks us whether .Congress

really intended to create a cause, of action only t o

simultaneously," ;foreclose-the opportunity to sue-for someof thos e

potential litigants . Could it really be that the,90- d y

limitations ;-=Period'in section 6015(e) became effective-for-her .'

.only".after it had already expired?

tells us that the statute has some retroactive reach .19 But ho w

much? There are other possible cases falling into- the -same .', . '

;jurisdictional gap as -,Pollock' s claim--cases where-the IRSI,-issued .

a notice of determination but the taxpayer never petitioned-the .

" 19 In Landgraf v . USI Film Prods . , 511 U .S . 244,-'274'(1994)(quoting Hallowell v . Commons , 239 U .S . 306, 308 (1916)),,, th e

.-Supreme (ours notea :

We have` regularly applied intervening statute s

conferring or ousting jurisdiction, whether or no t

jurisdiction lay when the underlying conduct occurre d

or when the suit was filed . * * * Application of a new,

jurisdictional rule usually "takes away no substantive

right but simply changes the tribunal that is to hea r ,tl

the case"

25

Court, cases that . .we .dismissed for lack of . jurisdiction after

Billings but before the amendment (at least those where we didn't

vacate our order of dismissal), or cases where we denied relief

on the merits after Ewing I but before Billings . In all of these

situations, it's conceivable that,the requesting spouse's .tax

liability remained unpaid as of the TRHCA's effective date ..

.There is a reasonable amount of caselaw construing statutes

that extinguish live claims . Looking to general principles of

statute-of-limitations-jurisprudence,•theThird Circuit recently

held that "where ashortened limitations,,period would bar .preaccrued claims, other circuits have provided .claimants the

shorter of : (1 .) the pre-shortened limitation,period, commencing

at the time the action accrued ; or (2) the shortened limitation

period, commencing from the date . the statute became .,effective ."

Kolkevich v . Attorney General , 501 F, .3d 323, 337 (3d C .ir . 2007)

see also Ruiz-Martinez v . Mukasev , 1 516 ..F .3d 102, 117 (2d .Cir .

2008) . So even if we--were to hold that a grace period was

appropriate, these case-s suggest there would .still ;be .a limit of

no more than 90 days after the amendment's-enactment .` Pollock

didn't raise an innocent=spouse defense until-May 2007 .

And it's important for us to note that these cases arise

from situations where a court undoubtedly had jurisdiction befor e

Congress changed .the law by imposing a new .or shorter deadline .

Texaco, Inc . v . Short , 454 U .S . 516, 529 (1.982) (taking

26 property) ;,

Ruiz=Martinez , 516 F .3d at 115

Kolkevich , 501 F .3d at 335-36

F .3d 97, '100 „a(2d Cir,. 1998)

(habeas-,corpus) : ;

(habeas corpus) ; Ross'v . Aftuz ,".15 0

(habeas corpus) .

5a'Pollock' .s= case- is different : We had nojurisdiction-tv,hear

section ."6015-(fnondeficiency stand-alone cases before th e

amendment,'so="the amendment to section 6015 was Congress creating=

jurisdiction for nondeficiency stand-alone claims where there had

been none' .before . It's within-Congress's power to cr•eate° ax~I .cause' ~

of'actionbut limit those-who may petition their cause . And :wer'

think,.that''s what happened'here--although Pollock falls within

the large'set,of potential petitioners whose tax liability

remained unpaid ;"she falls outside the smaller subset ;of

'potential petitioners whose tax liability . remained unpaid and"to ;'

whom,thev'Commissioner had either mailed a notice of,determination :

within the" 90 days preceding the amendment or-who had,- .filed .,,

undismissed :petitions with us when we had no jurisdiction .

recogniz'e this to`be an odd result, but it follows fro m

Congress±'s failure to tinker with the 90-day deadline when its '

amended the Code tb'give us jurisdiction . Congress simply

,provided people in Pollock's situation with no window of-

opportun"ity~'to petition our Court and no grace period . to do 'so .20

20Certainly Congress could have decided not to_act at all ,

thereby providing no forum under section 6015(e) for section

6015(f) relief . . See Graham v . Goodcell , 282 U .S . . 409, 431-32-

(1931) ("the`broad discretion of the Congress in° the"'exercise o f

(continued . . .

27-We therefore have no jurisdiction ., to hear her claim, and2 1

An order of dismissal fo r

lack of jurisdiction will b e

entered .

20( . .. .continued)

its constitutional power as to taxation * * * necessarily extends

to the whole field of supervision and control of the processes of

enforcement . * * *-In its selection the Congress dealt with an

appropriate class and was not bound to include others ." )

21Perhaps .not all hope is lost--the . Commissioner conceded

at oral . argument, that if she filed,a refund action in District

Court after her home was seized . and sold, Pollock could try to

make her case that she is an innocentspouse .

.