# UNITED STATES TAX COURT . > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/agency%3Atax-court%3A6b753f99df80c6f4 ## Record - **Collection:** Agency decision - **Document type:** Agency decision ## Text 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 .windowU .°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 . . --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Atax-court%3A6b753f99df80c6f4. Public record. Not legal advice.