Petition for Writ of Certiorari — Boechler, P.C., Petitioner v. Commissioner of Internal Revenue
Supreme Court briefApr 16, 2021
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No. _______
In the
Supreme Court of the United States
BOECHLER, P.C.,
Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
MELISSA ARBUS SHERRY
Counsel of Record
CAROLINE A. FLYNN
AMY FEINBERG
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
melissa.sherry@lw.com
Counsel for Petitioner
QUESTION PRESENTED
Section 6330(d)(1) of the Internal Revenue Code
establishes a 30-day time limit to file a petition for
review in the Tax Court of a notice of determination
from the Commissioner of Internal Revenue. 26
U.S.C. § 6330(d)(1). The question presented is:
Whether the time limit in Section 6330(d)(1) is a
jurisdictional requirement or a claim-processing rule
subject to equitable tolling.
ii
RULE 29.6 STATEMENT
Pursuant to Rule 29.6 of the Rules of this Court,
petitioner Boechler, P.C. hereby states that it is
neither owned by a parent corporation, nor is there a
publicly held corporation owning ten percent (10%) or
more of its shares.
iii
RELATED PROCEEDINGS
The following proceedings are directly related to
this petition:
Boechler, P.C. v. Commissioner, No. 19-2003,
United States Court of Appeals for the Eighth Circuit,
judgment entered July 24, 2020 (967 F.3d 760),
rehearing denied November 17, 2020.
Boechler, P.C. v. Commissioner, No. 18578-17 L,
United States Tax Court, judgment entered February
15, 2019.
iv
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
RULE 29.6 STATEMENT.......................................... ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES ..................................... vi
OPINIONS AND ORDERS BELOW ......................... 1
JURISDICTION ......................................................... 1
STATUTORY PROVISIONS INVOLVED ................ 1
INTRODUCTION ...................................................... 1
STATEMENT OF THE CASE ................................... 3
REASONS FOR GRANTING THE WRIT................. 9
I.
The Eighth Circuit’s Decision Deepens An
Existing Circuit Split........................................... 9
A. There Is A Conflict Between The Eighth
And Ninth Circuits And The D.C. Circuit .. 10
B. This Is A Square Split ................................. 12
C. Further Percolation Will Only Exacerbate
The Confusion.............................................. 13
II. The Eighth Circuit’s Decision Conflicts With
This Court’s Precedents And Is Wrong ............. 15
A. This Court’s Precedents Establish A High
Bar Before A Time Limit Will Be Treated
As Jurisdictional ......................................... 15
B. Section 6330(d)(1) Is Not The Rare
Jurisdictional Time Limit ........................... 17
v
TABLE OF CONTENTS—Continued
Page
III. The Question Presented Is Important And
This Case Is An Ideal Vehicle ........................... 22
CONCLUSION ......................................................... 29
APPENDIX
Opinion of the United States Court of Appeals
for the Eighth Circuit, Boechler, P.C. v.
Commissioner, 967 F.3d 760 (8th Cir.
2020) ....................................................................1a
Order of the United States Tax Court Granting
Motion to Dismiss, Boechler, P.C. v.
Commissioner, No. 18578-17 L (T.C. Feb.
15, 2019) ............................................................13a
Order of the United States Court of Appeals for
the Eighth Circuit Denying Rehearing,
Boechler, P.C. v. Commissioner, No. 192003 (8th Cir. Nov. 17, 2020) ...........................16a
26 U.S.C. § 6015 ......................................................18a
26 U.S.C. § 6330 ......................................................31a
26 U.S.C. § 7623 ......................................................39a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Arbaugh v. Y&H Corp.,
546 U.S. 500 (2006) ..........................................2, 16
Boyd v. Commissioner,
451 F.3d 8 (1st Cir. 2006) ....................................14
Cunningham v. Commissioner,
716 F. App’x 182 (4th Cir. 2018) .........................23
Dolan v. United States,
560 U.S. 605 (2010) ................................................2
Duggan v. Commissioner,
879 F.3d 1029 (9th Cir. 2018).............. 7, 10, 18, 23
Eberhart v. United States,
546 U.S. 12 (2005) ..................................................3
Fort Bend County v. Davis,
139 S. Ct. 1843 (2019)......................................2, 16
Friedel v. Commissioner,
No. 11239-19W, 2020 WL 5569697 (T.C.
Sept. 17, 2020) .....................................................13
Golsen v. Commissioner,
54 T.C. 742 (1970) ................................................13
Gonzalez v. Thaler,
565 U.S. 134 (2012) ..........................................2, 17
vii
TABLE OF AUTHORITIES—Continued
Page(s)
Gray v. Commissioner,
138 T.C. 295 (2012) ................................................6
Gray v. Commissioner,
723 F.3d 790 (7th Cir. 2013)................................14
Guralnik v. Commissioner,
146 T.C. 230 (2016) .................................... 6, 23, 27
Hamer v. Neighborhood Housing Services of
Chicago,
138 S. Ct. 13 (2017).................................... 2, 16, 28
Henderson ex rel. Henderson v. Shinseki,
562 U.S. 428 (2011) .......................... 2, 8, 11, 15, 16
Holland v. Florida,
560 U.S. 631 (2010) ..........................................2, 21
Irwin v. Department of Veterans Affairs,
498 U.S. 89 (1990) .................................... 12, 15, 21
Kaplan v. Commissioner,
552 F. App’x 77 (2d Cir. 2014) .............................14
Kontrick v. Ryan,
540 U.S. 443 (2004) ................................................3
Matuszak v. Commissioner,
862 F.3d 192 (2d Cir. 2017) .................................19
viii
TABLE OF AUTHORITIES—Continued
Page(s)
Myers v. Commissioner,
928 F.3d 1025 (D.C. Cir. 2019) .................... passim
Nauflett v. Commissioner,
892 F.3d 649 (4th Cir. 2018)..........................18, 27
Nutraceutical Corp. v. Lambert,
139 S. Ct. 710 (2019)............................................22
Reed Elsevier, Inc. v. Muchnick,
559 U.S. 154 (2010) ................................................2
Rubel v. Commissioner,
856 F.3d 301 (3d Cir. 2017) ...........................19, 27
Sarrell v. Commissioner,
117 T.C. 122 (2001) ..............................................27
Scarborough v. Principi,
541 U.S. 401 (2004) ................................................3
Sebelius v. Auburn Regional Medical
Center,
568 U.S. 145 (2013) ...................................... passim
Springer v. Commissioner,
416 F. App’x 681 (10th Cir. 2011) .......................14
Stern v. Marshall,
564 U.S. 462 (2011) ................................................2
Tuka v. Commissioner,
348 F. App’x 819 (3d Cir. 2009) ...........................14
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Union Pacific Railroad Co. v. Brotherhood
of Locomotive Engineers & Trainmen
General Committee of Adjustment,
Central Region,
558 U.S. 67 (2009) ..................................................2
United States v. Brockamp,
519 U.S. 347 (1997) ..............................................22
United States v. Kwai Fun Wong,
575 U.S. 402 (2015) ...................................... passim
Weinberger v. Salfi,
422 U.S. 749 (1975) ..............................................17
STATUTES
26 U.S.C. § 6015 ........................................................18
26 U.S.C. § 6015(e)(1) ...............................................21
26 U.S.C. § 6015(e)(1)(A) ..........................................18
26 U.S.C. § 6213(a)....................................................21
26 U.S.C. § 6320(a)......................................................4
26 U.S.C. § 6320(b)......................................................4
26 U.S.C. § 6320(c) ..................................................4, 5
26 U.S.C. § 6321 ......................................................3, 4
26 U.S.C. § 6330(a)......................................................4
x
TABLE OF AUTHORITIES—Continued
Page(s)
26 U.S.C. § 6330(b)......................................................4
26 U.S.C. § 6330(c) ................................................4, 19
26 U.S.C. § 6330(c)(1) ..................................................4
26 U.S.C. § 6330(c)(2) ..................................................5
26 U.S.C. § 6330(c)(2)(A) .............................................4
26 U.S.C. § 6330(c)(3) ..................................................5
26 U.S.C. § 6330(d)(1) ............................... 5, 17, 19, 22
26 U.S.C. § 6330(e) ......................................................5
26 U.S.C. § 6331 ......................................................3, 4
26 U.S.C. § 7345 ........................................................21
26 U.S.C. § 7482(b)(1) ...............................................24
26 U.S.C. § 7502 ........................................................27
26 U.S.C. § 7502(e) ......................................................6
26 U.S.C. § 7503 ..........................................................6
26 U.S.C. § 7623(b)....................................................10
26 U.S.C. § 7623(b)(1) ...............................................10
26 U.S.C. § 7623(b)(2) ...............................................10
26 U.S.C. § 7623(b)(3) ...............................................11
xi
TABLE OF AUTHORITIES—Continued
Page(s)
26 U.S.C. § 7623(b)(4) ...........................................7, 11
28 U.S.C. § 1254(1)......................................................1
Pub. L. No. 105-206, 112 Stat. 685 (1998) .................3
OTHER AUTHORITIES
Bryan T. Camp, New Thinking about
Jurisdictional Time Periods in the Tax
Code, 73 Tax Law. 1 (2019) .................................12
Bryan T. Camp, Tax Administration as
Inquisitorial Process and the Partial
Paradigm Shift in the IRS Restructuring
and Reform Act of 1998, 56 Fla. L. Rev.
1 (2004) ...................................................................4
Kristen A. Parillo, Whistleblower Deadline
Isn’t Jurisdictional, D.C. Circuit Holds,
Tax Notes Federal (2019, online) ........................12
National Taxpayer Advocate, 2019 Purple
Book (Dec. 31, 2018),
https://www.taxpayeradvocate.irs.gov/
wp-content/uploads/2020/07/ARC18_
PurpleBook.pdf ....................................................24
xii
TABLE OF AUTHORITIES—Continued
Page(s)
National Taxpayer Advocate, 2020 Purple
Book (Dec. 31, 2019),
https://www.taxpayeradvocate.irs.gov
/wp-content/uploads/2020/08/ARC19_
PurpleBook.pdf ....................................................24
National Taxpayer Advocate, 2021 Purple
Book (Dec. 31, 2020),
https://www.taxpayeradvocate.irs.gov/
wp-content/uploads/2021/01/ARC20_
PurpleBook.pdf ........................................ 24, 25, 27
National Taxpayer Advocate, Annual
Report to Congress 2020 (Dec. 31, 2020),
https://www.taxpayeradvocate.irs.gov/
wp-content/uploads/2021/01/
ARC20_FullReport.pdf ................ 12, 23, 24, 25, 27
S. Rep. No. 105-174 (1998) ..........................................4
William Strunk Jr. & E.B. White, The
Elements of Style (4th ed. 2000) ..........................20
PETITION FOR A WRIT OF CERTIORARI
Petitioner Boechler, P.C. respectfully petitions
this Court for a writ of certiorari to review the
judgment of the United States Court of Appeals for
the Eighth Circuit in this case.
OPINIONS AND ORDERS BELOW
The decision of the court of appeals (App. 1a-12a)
is reported at 967 F.3d 760. The order of the court of
appeals denying rehearing and rehearing en banc
(App. 16a-17a) is unreported. The Tax Court decision
dismissing the petition for review for lack of
jurisdiction (App. 13a-15a) is unreported.
JURISDICTION
The court of appeals entered judgment on July 24,
2020. App. 1a. On November 17, 2020, the court of
appeals denied petitioner’s timely motion for
rehearing and rehearing en banc. App. 16a-17a. On
March 19, 2020, this Court extended the time within
which to file a petition for a writ of certiorari to 150
days from, inter alia, the order denying a timely
petition for rehearing. This Court has jurisdiction
under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The relevant statutory provisions are set out in the
petition appendix. App. 18a-42a.
INTRODUCTION
This Court has spent more than a decade trying to
bring discipline to what legal rules are properly
characterized as “jurisdictional.” The Court has
repeatedly held that statutory time limits are
quintessential
claim-processing
rules—not
limitations on a court’s subject-matter jurisdiction—
2
unless Congress has clearly indicated to the contrary.
And this Court has articulated a “readily
administrable bright line” rule to identify those rare
circumstances where a time limit will be treated as
jurisdictional: there must be a “clear[] state[ment]” in
the statute. Arbaugh v. Y&H Corp., 546 U.S. 500,
515-16 (2006). In recent years, the Court has granted
certiorari nearly every Term to reaffirm those
principles when lower courts have gone astray and,
with only few exceptions, has declared a variety of
legal rules nonjurisdictional.1
1
See Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846
(2019) (Title VII’s charge-filing requirement nonjurisdictional);
Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13,
16-17, 22 (2017) (limit on extensions of time to file a notice of
appeal in Federal Rule of Appellate Procedure 4(a)(5)(C)
nonjurisdictional); United States v. Kwai Fun Wong, 575 U.S.
402, 409-10 (2015) (Federal Tort Claims Act time limits
nonjurisdictional); Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S.
145, 148-49 (2013) (Medicare time limit for appeal to Provider
Reimbursement Review Board nonjurisdictional); Gonzalez v.
Thaler, 565 U.S. 134, 137 (2012) (requirement that a certificate
of appealability indicate the specific issue to be challenged
nonjurisdictional); Stern v. Marshall, 564 U.S. 462, 479 (2011)
(carve-out for “personal injury” claims in bankruptcy statute
nonjurisdictional); Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 438-41 (2011) (time limit to file appeal to Veterans
Court nonjurisdictional); Holland v. Florida, 560 U.S. 631, 645
(2010) (Antiterrorism and Effective Death Penalty Act statute of
limitations nonjurisdictional); Dolan v. United States, 560 U.S.
605, 610-11 (2010) (statutory deadline for ordering restitution
nonjurisdictional); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154,
157 (2010) (requirement that copyright be registered before
filing suit nonjurisdictional); Union Pac. R.R. Co. v. Brotherhood
of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment,
Cent. Region, 558 U.S. 67, 71-72 (2009) (proof of conferencing
requirement before National Railroad Adjustment Board
arbitration nonjurisdictional); Arbaugh v. Y&H Corp., 546 U.S.
3
The Eighth Circuit went astray here. In a split
decision, the court of appeals held that the 30-day
deadline to file a petition for review in the Tax Court
of a notice of determination from the Commissioner of
Internal Revenue is the rare “jurisdictional” time
limit that deprives the Tax Court of authority to
equitably toll the filing deadline. That decision
deepens an existing conflict between the Ninth and
D.C. Circuits—a conflict the Commissioner himself
has acknowledged. It cannot be reconciled with this
Court’s cases.
And it incorrectly resolved an
important
and
recurring
issue
that
may
disproportionately impact pro se and low-income
taxpayers. This Court’s review is warranted.
STATEMENT OF THE CASE
1. This case concerns the timeline that governs
Tax Court review of determinations made by the
Commissioner of Internal Revenue in connection with
“collection due process hearings.” One way the
Internal Revenue Service (IRS) collects outstanding
tax obligations is by filing a lien on the taxpayer’s
property or by seizing the property by levy. See 26
U.S.C. §§ 6321, 6331. In 1998, as a result of perceived
IRS abuses during the collection process and to
increase fairness to taxpayers, Congress established
“collection due process hearings.”
See IRS
500, 504-05, 516 (2006) (Title VII provision exempting employers
with fewer than 15 employees nonjurisdictional); Eberhart v.
United States, 546 U.S. 12, 15-16 (2005) (per curiam) (federal
criminal rules setting forth time limits for new trial
nonjurisdictional); Scarborough v. Principi, 541 U.S. 401, 411-12
(2004) (filing deadlines for fee applications under Equal Access
to Justice Act nonjurisdictional); Kontrick v. Ryan, 540 U.S. 443,
452-54 (2004) (filing deadlines for objecting to debtor’s discharge
in bankruptcy nonjurisdictional).
4
Restructuring and Reform Act of 1998, Pub. L. No.
105-206, § 3401, 112 Stat. 685, 746 (1998); S. Rep. No.
105-174, at 67 (1998) (purpose was to “afford
taxpayers due process in collections” and “increase
fairness to taxpayers”); Bryan T. Camp, Tax
Administration as Inquisitorial Process and the
Partial Paradigm Shift in the IRS Restructuring and
Reform Act of 1998, 56 Fla. L. Rev. 1, 85-87 (2004)
(recounting testimony before Congress that the IRS
was abusing taxpayers during the collection process).
The purpose of these collection due process hearings
was to provide a procedural safeguard to taxpayers
“before the IRS deprives them of their property.”
S. Rep. No. 105-174, at 67; see also id. (“[T]he IRS
should afford taxpayers adequate notice of collection
activity and a meaningful hearing . . . .”).
The collection due process regime operates as
follows. If the IRS determines that a taxpayer owes a
tax debt and the taxpayer fails to pay it on time, the
United States automatically receives a lien on the
taxpayer’s property and may collect the debt by levy.
26 U.S.C. §§ 6321, 6331. But before it can carry out
the levy (or file a notice of its lien), the IRS must first
give notice to the taxpayer and advise the taxpayer of
her right to a hearing. Id. §§ 6320(a), 6330(a). The
taxpayer may then request a hearing before the IRS
Office of Appeals. Id. §§ 6320(b), 6330(b).
Section 6330(c) explains which “[m]atters” are to
be “considered at [the] hearing.” Id. § 6330(c); see also
id. § 6320(c) (cross-referencing Section 6330(c)). The
IRS must prove that it fulfilled all the necessary
procedural requirements to levy on the taxpayer’s
property. Id. § 6330(c)(1). The taxpayer, in turn, can
raise “any relevant issue relating to the unpaid tax or
the proposed levy.” Id. § 6330(c)(2)(A). Such matters
5
may include the underlying tax liability (in certain
circumstances); “offers of collection alternatives”
(such as installment plans or offers in compromise);
and any other “challenges to the appropriateness of
[the IRS’s] collection actions.” Id. § 6330(c)(2).
After the hearing, the IRS Office of Appeals issues
a “determination.” Id. § 6330(c)(3). And that is when
the Tax Court filing deadline at issue comes into play:
The person may, within 30 days of a
determination under this section, petition
the Tax Court for review of such
determination (and the Tax Court shall
have jurisdiction with respect to such
matter).
Id. § 6330(d)(1); see also id. § 6320(c) (crossreferencing Section 6330(d)). Until the taxpayer has
exhausted all of her appeals, the IRS may not carry
out the levy (subject to a good-cause exception). Id.
§ 6330(e).
2. Petitioner is a small law firm in Fargo, North
Dakota. Court of Appeals Joint Appendix (CAJA) 2,
5. On June 5, 2015, the IRS sent petitioner a letter
noting a discrepancy in its 2012 tax filings. Id. at 6.
Specifically, the IRS claimed that petitioner had
failed to file copies of its employees’ W-2s with the
Social Security Administration, along with required
IRS Form W-3. App. 2a; CAJA 6. Petitioner did not
respond within 45 days, and the IRS imposed a 10%
intentional disregard penalty in the amount of
$19,250. App. 2a; CAJA 6.
On July 28, 2016, the IRS mailed petitioner a
notice of intent to levy on its property to collect the
penalty, plus interest. App. 2a; CAJA 10. On
November 1, 2016, petitioner timely requested a
6
collection due process hearing before the IRS Office of
Appeals under Section 6330(b)(1). App. 2a; CAJA 5.
Petitioner explained that it had in fact previously
provided the missing forms. CAJA 5. Petitioner also
argued that the penalty was excessive and would
cause significant hardship. Id.
A collection due process hearing was held by
telephone on May 19, 2017. Id. at 7. On July 28,
2017, the IRS Office of Appeals mailed petitioner a
notice of determination sustaining the proposed levy.
App. 2a. The notice of determination was not
delivered until July 31, 2017. Id. Under Section
6330(d)(1), petitioner had 30 days from July 28 to file
its petition for review with the Tax Court. Because
the 30th day (August 27) fell on a Sunday, the
deadline was Monday, August 28. 26 U.S.C. § 7503.
Petitioner mailed its petition one day late, on August
29, 2017. App. 2a; see also 26 U.S.C. § 7502(e)
(establishing “date of mailing” rule).
3. In the Tax Court, the Commissioner moved to
dismiss for lack of jurisdiction based on petitioner’s
failure to meet the 30-day filing deadline.
In
response, petitioner argued that Section 6330(d)(1) is
not jurisdictional, and requested an evidentiary
hearing to establish its entitlement to equitable
tolling. CAJA 32-43, 48-49. The Tax Court agreed
with the Commissioner and dismissed the case. App.
13a, 15a. The court explained that it had “repeatedly”
held that the filing deadline in Section 6330(d)(1) is
jurisdictional.
Id. at 15a (citing Gray v.
Commissioner, 138 T.C. 295, 299 (2012)). And the
court rejected petitioner’s request for equitable tolling
on that basis alone.
Id. (citing Guralnik v.
Commissioner, 146 T.C. 230, 237-38 (2016)).
7
4. In a split decision, the Eighth Circuit affirmed.
App. 1a-12a.
a. The majority acknowledged that this Court
“has ‘repeatedly held that filing deadlines ordinarily
are not jurisdictional’” and instead should be
considered claim-processing rules presumptively
subject to equitable tolling. Id. at 3a (quoting
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154
(2013)). The majority also recognized that “Congress
must do something special, beyond setting an
exception-free deadline, to tag a [time limit] as
jurisdictional and so prohibit a court from tolling it.”
Id. at 4a-5a (alteration in original) (quoting United
States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015)).
And it agreed that this Court’s decisions require a
“clear statement” from Congress. Id. at 4a. But the
majority believed that Section 6330(d)(1) met that
standard. Relying on the Ninth Circuit’s decision in
Duggan v. Commissioner, 879 F.3d 1029 (9th Cir.
2018), the majority concluded that “[t]he
parenthetical ‘(and the Tax Court shall have
jurisdiction with respect to such matter)’ is clearly
jurisdictional and renders the remainder of the
sentence jurisdictional.” App. 6a. The phrase “such
matter” in that parenthetical, the majority reasoned,
must necessarily refer to a petition that is filed within
30 days of the IRS’s determination. Id. at 6a-7a.
The majority acknowledged that the D.C. Circuit
had reached the opposite conclusion regarding the
filing deadline in 26 U.S.C. § 7623(b)(4)—which
“includes an identically worded parenthetical as the
one found in § 6330.” App. 5a. But the majority found
the Ninth Circuit’s analysis more “persuasive.” Id. at
6a. “While there might be alternative ways that
Congress could have stated the jurisdictional nature
8
of the statute more plainly,” the majority believed
that Congress had “spoken clearly enough to establish
that § 6330(d)(1)’s 30-day filing deadline is
jurisdictional.” Id. at 7a-8a.
Because the court of appeals affirmed the Tax
Court’s determination that the deadline was
jurisdictional, it did not consider whether Section
6330(d)(1)’s filing deadline would otherwise be subject
to equitable tolling or whether petitioner’s
circumstances would warrant such tolling. See id. at
8a n.3.
b. Judge Kelly concurred in part and concurred in
the judgment. Id. at 10a. Judge Kelly believed the
panel was bound by a prior circuit decision to treat
the deadline in Section 6330(d)(1) as jurisdictional.
Id. at 10a-11a. Although she felt bound to affirm the
Tax Court’s jurisdictional holding for that reason,
Judge Kelly was “not convinced the statute contains
a sufficiently clear statement to justify this result.”
Id. at 12a. Judge Kelly explained that the court’s
decision represented “an unusual departure from the
ordinary rule that filing deadlines are ‘quintessential
claim-processing rules.’” Id. (quoting Henderson ex
rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011)).
She emphasized that the court’s ruling could have
“‘drastic’ consequences for litigants.” Id. (quoting
Henderson, 562 U.S. at 435). And she shared her
“concern[]”
that
“the
burden
may
fall
disproportionately on low-income taxpayers.” Id.
5. Petitioner filed a petition for rehearing en
banc. Rehearing was denied, but with three judges
(Judges Loken, Colloton, and Kelly) voting to grant.
App. 16a.
9
REASONS FOR GRANTING THE WRIT
This case presents the question whether a 30-day
deadline to file a petition for review with the Tax
Court is the rare “jurisdictional” time limit that
deprives the Tax Court of authority to equitably toll
the filing deadline. More than a decade of this Court’s
precedents plainly answer that question in the
negative. Time and again, the Court has reaffirmed
that—absent a clear statement to the contrary—
statutory time limits are nonjurisdictional claimprocessing rules presumptively subject to equitable
tolling. Congress did nothing special in Section
6330(d)(1) to depart from that rule.
The Eighth Circuit’s split decision nevertheless
cloaks the 30-day filing deadline with jurisdictional
significance. That decision deepens an existing divide
between the Ninth and D.C. Circuits—giving rise to
what even the Commissioner has characterized as a
square conflict. On the merits, the D.C. Circuit got it
right: nothing about the phrasing of Section
6330(d)(1)’s time limit clearly establishes the
deadline’s jurisdictional status. And because the
issue recurs with some frequency, impacts low-income
and pro se taxpayers, and results in harsh
consequences, deciding whether the 30-day deadline
is jurisdictional is of paramount importance. This
Court’s review is warranted.
I. The Eighth Circuit’s Decision Deepens An
Existing Circuit Split
The Eighth Circuit’s decision deepens an existing
conflict among the courts of appeals. The Eighth and
Ninth Circuits have now held that Section 6330(d)(1)
creates a jurisdictional filing deadline. The D.C.
Circuit reached the opposite conclusion with respect
10
to another Tax Court filing deadline with functionally
identical language. And other courts of appeals have
issued (or will issue) decisions that only further add
to the confusion. The conflict is entrenched, ripe, and
ready for the Court’s review.
A. There Is A Conflict Between The Eighth
And Ninth Circuits And The D.C. Circuit
In Duggan v. Commissioner, the Ninth Circuit
held
that
Section 6330(d)(1)’s
deadline
is
jurisdictional. 879 F.3d 1029, 1035 (9th Cir. 2018).
The Ninth Circuit recognized that Section 6330(d)(1)
does not provide “the clearest statement possible.” Id.
at 1034. But the court deemed the text sufficiently
clear because “the filing deadline is given in the same
breath as the grant of jurisdiction.” Id.; see also id.
(reading Section 6330(d)(1) to “confer[] jurisdiction on
the Tax Court if (and only if) a petition for review is
filed in that court within thirty days of the IRS’s
determination”).
The following year, the D.C. Circuit interpreted
materially identical statutory language and
disagreed. In Myers v. Commissioner, a majority of
the D.C. Circuit held that 26 U.S.C. § 7623(b)(4) does
not create a jurisdictional filing deadline. 928 F.3d
1025, 1034-36 (D.C. Cir. 2019). But see id. at 1038
(Henderson, J., concurring in part and dissenting in
part). Section 7623(b) requires the IRS to pay awards
to whistleblowers who bring tax violations to its
attention. 26 U.S.C. § 7623(b). The IRS may
authorize an award of 10-30% of the proceeds of any
collection undertaken as a result of a whistleblower’s
involvement, id. § 7623(b)(1)-(2), but has discretion to
reduce or deny awards for whistleblowers who
“planned and initiated” the actions leading to
11
underpayment, id. § 7623(b)(3). A whistleblower
aggrieved by the award amount (or its denial) may
then seek Tax Court review of the IRS’s
determination. And the provision governing that
review, Section 7623(b)(4), states:
Any determination regarding an award
under paragraph (1), (2), or (3) may, within
30 days of such determination, be appealed
to the Tax Court (and the Tax Court shall
have jurisdiction with respect to such
matter).
Id. § 7623(b)(4).
The D.C. Circuit recognized that the Ninth Circuit
had previously found the materially identical
language in Section 6330(d)(1) to be jurisdictional.
Myers, 928 F.3d at 1036. But the D.C. Circuit
disagreed with the Ninth Circuit’s conclusion that the
deadline is jurisdictional simply because it appears in
the same subsection as the jurisdiction-conferring
language. Id. Carefully parsing the parenthetical’s
language in context, the D.C. Circuit reasoned that
“the type of appeal to which ‘such matter’ refers is
most naturally identified by the subject matter of the
appeal—namely, ‘any determination regarding an
award under paragraph (1), (2), or (3)’—and not by the
requirement that it be filed ‘within 30 days of such
determination.’” Id. at 1035. Recognizing that “the
[Supreme] Court has demanded an unusually high
degree of clarity to trigger the ‘drastic’ ‘consequences
that attach to the jurisdictional label,’” id. (quoting
Henderson, 562 U.S. at 435), the D.C. Circuit held
that the deadline in “‘[t]his case is scarcely the
exceptional one,’ . . . in which a filing period ranks as
a jurisdictional bar,” id. (alteration in original)
12
(quoting Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S.
145, 155 (2013)).
Having found that Section
7623(b)(4) is not jurisdictional, the D.C. Circuit
concluded—based on the presumption established in
Irwin v. Department of Veterans Affairs, 498 U.S. 89,
95-96 (1990)—that the statutory deadline was subject
to equitable tolling. Myers, 928 F.3d at 1036-37.
In the split decision below, the Eighth Circuit
disagreed with the D.C. Circuit and aligned itself with
the Ninth Circuit. App. 5a-6a.
B. This Is A Square Split
The circuit conflict is well recognized. See, e.g.,
National Taxpayer Advocate, Annual Report
to Congress 2020, at 171 (Dec. 31, 2020),
https://www.taxpayeradvocate.irs.gov/wp-content/
uploads/2021/01/ARC20_FullReport.pdf (noting that
the “split” “could prompt the Supreme Court to review
the issue”); Bryan T. Camp, New Thinking about
Jurisdictional Time Periods in the Tax Code, 73 Tax
Law. 1, 36-40 & nn.146 & 149 (2019); Kristen A.
Parillo, Whistleblower Deadline Isn’t Jurisdictional,
D.C. Circuit Holds, Tax Notes Federal (2019, online).
And it cannot be explained by the different Internal
Revenue Code provisions at issue. The Eighth Circuit
acknowledged that the D.C. Circuit had come to a
different conclusion about the “identically worded
parenthetical,” but found the Ninth Circuit’s analysis
more “persuasive.” App. 5a-6a. The D.C. Circuit
likewise observed that its decision in Myers was “in
some tension” with Duggan. Myers, 928 F.3d at 1036.
The Commissioner himself sought rehearing en
banc in Myers on the basis of the (then, more shallow)
split between the Ninth and D.C. Circuits. As the
Commissioner explained in his unsuccessful
13
rehearing petition, “[i]t is simply not possible to
reconcile the decision in [Myers] with Duggan.”
Commissioner En Banc Pet’n 11, Myers v.
Commissioner, 928 F.3d 1025 (D.C. Cir. 2019) (No. 181003); see also id. at 1 (stating that the “holding” in
Myers “conflicts with the Ninth Circuit’s decision in
Duggan . . . which held that a virtually identical time
limit in I.R.C. § 6330(d)(1) . . . is jurisdictional”).
Petitioner fully agrees.
The D.C. Circuit’s
statutory analysis cannot be reconciled with the
Eighth and Ninth Circuit’s reading of near identical
language.
The result being that a District of
Columbia taxpayer appealing an IRS collection due
process determination can receive the benefit of
equitable tolling while taxpayers in the Eighth and
Ninth Circuits cannot.2 That is a square split under
any definition.
C. Further Percolation Will Only Exacerbate
The Confusion
Further percolation on the question presented will
do more harm than good. The three court of appeals’
decisions have thoroughly aired both sides of this
statutory interpretation issue. Yet this petition is the
Court’s first opportunity to address the conflict. See
2
Petitioner is not aware of any post-Myers collection due
process case in the Tax Court presenting the jurisdictional issue
where appellate venue would lie in the D.C. Circuit (and no such
case has been appealed to the D.C. Circuit). But when the Tax
Court does confront such a case, it would be obliged to follow
Myers, not its own precedent holding Section 6330(d)(1)
jurisdictional. See Friedel v. Commissioner, No. 11239-19W,
2020 WL 5569697, at *2 (T.C. Sept. 17, 2020) (following D.C.
Circuit precedent where that court “is the appellate venue for
this case”); Golsen v. Commissioner, 54 T.C. 742, 756-57 (1970).
14
Commissioner v. Myers, No. 19A674 (U.S.) (Solicitor
General received two extensions of time in which to
file a petition for a writ of certiorari, but ultimately
declined to seek review). And while another appeal
raising the same question presented is currently
pending before the Second Circuit, oral argument has
not been scheduled. See Castillo v. Commissioner, No.
20-1635 (2d Cir.).
In the meantime, significant confusion persists.
Five other courts of appeals have referred to Section
6330(d)(1)’s filing deadline as jurisdictional in passing
or implied that the deadline might be jurisdictional.3
None of those cases actually presented the issue for
decision. But that has not stopped the Commissioner
from telling courts that these circuits have
“consider[ed]” the question presented and “agreed”
that the filing deadline is jurisdictional. Boechler
Appellee’s Opp. to En Banc Pet’n 13; see also, e.g.,
Castillo Appellee Br. 19-20, ECF No. 57.
This Court should intervene now to bring muchneeded uniformity to this area of the law.
3
See Kaplan v. Commissioner, 552 F. App’x 77, 78 (2d Cir.
2014) (affirming Tax Court’s dismissal of petition for lack of
jurisdiction and holding that actual notice of the determination
is not required under Section 6330(d)(1) when the determination
is sent by certified mail to taxpayer’s last known address); Gray
v. Commissioner, 723 F.3d 790, 792-94 (7th Cir. 2013) (affirming
Tax Court’s dismissal of petitions for lack of jurisdiction and
holding that the 30-day deadline in Section 6330(d)(1) applied,
rather than different statutory deadlines); Boyd v.
Commissioner, 451 F.3d 8, 10-11 (1st Cir. 2006) (affirming Tax
Court dismissal of petition for lack of jurisdiction and holding
that a determination must issue before taxpayer may petition
the Tax Court); Springer v. Commissioner, 416 F. App’x 681, 68283 (10th Cir. 2011) (same); Tuka v. Commissioner, 348 F. App’x
819, 820-21 (3d Cir. 2009) (per curiam) (same).
15
II. The Eighth Circuit’s Decision Conflicts With
This Court’s Precedents And Is Wrong
Review is also warranted because the Eighth
Circuit aligned itself with the wrong side of the split.
This Court has made clear that statutory time limits
are
quintessential
claim-processing
rules
presumptively subject to equitable tolling unless
Congress has clearly indicated to the contrary. And
Section 6330(d)(1) is not the “rare statute of
limitations that can deprive a court of jurisdiction.”
United States v. Kwai Fun Wong, 575 U.S. 402, 410
(2015).
A. This Court’s Precedents Establish A High
Bar Before A Time Limit Will Be Treated
As Jurisdictional
It is well settled that statutory time limits are
presumptively subject to equitable tolling. See Irwin,
498 U.S. at 95-96. That is true whether the defendant
is a private party or the Government. See id.; Kwai
Fun Wong, 575 U.S. at 407-08. But this presumption
will not apply if the time limit is jurisdictional. Kwai
Fun Wong, 575 U.S. at 408. As this Court has
explained, “[b]randing a rule as going to a court’s
subject-matter jurisdiction alters the normal
operation of our adversarial system.” Henderson, 562
U.S. at 434. A jurisdictional time limit is not subject
to equitable tolling, must be considered sua sponte,
and can be raised at any time—including on appeal—
to get a case dismissed. See Auburn Reg’l, 568 U.S. at
153.
Because of the “untoward consequences” that
attach to the jurisdictional label, this Court has “‘tried
in recent cases to bring some discipline to the use’ of
the term ‘jurisdiction.’” Id. (quoting Henderson, 562
16
U.S. at 435). “[C]laim-processing rules,” for example,
“should not be described as jurisdictional.”
Henderson, 562 U.S. at 435. “These are rules that
seek to promote the orderly progress of litigation by
requiring that the parties take certain procedural
steps at certain specified times.” Id. And, “[t]ime and
again,” this Court has “described filing deadlines as
‘quintessential claim-processing rules,’ which ‘seek to
promote the orderly progress of litigation,’ but do not
deprive a court of authority to hear a case.” Kwai Fun
Wong, 575 U.S. at 410 (quoting Henderson, 562 U.S.
at 435).
To be sure, Congress can decide to brand a time
limit jurisdictional and impose all of the “[h]arsh
consequences” that follow. Fort Bend Cnty. v. Davis,
139 S. Ct. 1843, 1849 (2019). But Congress must do
so in clear terms. Under this Court’s “readily
administrable bright line” rule, Arbaugh v. Y&H
Corp., 546 U.S. 500, 516 (2006), a “time bar[]” will be
treated as jurisdictional “only if Congress has ‘clearly
state[d]’ as much,” Kwai Fun Wong, 575 U.S. at 409
(alteration in original) (quoting Auburn Reg’l, 568
U.S. at 153); see also Hamer v. Neighborhood Hous.
Servs. of Chicago, 138 S. Ct. 13, 20 n.9 (2017).
“‘[A]bsent such a clear statement, . . . “courts should
treat the restriction as nonjurisdictional.”’” Kwai Fun
Wong, 575 U.S. at 409-10 (alterations in original)
(citations omitted). Although Congress does not have
to use “‘magic words,’” “traditional tools of statutory
construction must plainly show that Congress imbued
a procedural bar with jurisdictional consequences.”
Id. at 410 (citation omitted); see also Fort Bend Cnty.,
139 S. Ct. at 1850 (Congress must “‘clearly state[]
that a [prescription] count[s] as jurisdictional,’” so
that courts and litigants “‘will not be left to wrestle
17
with the issue’” (first brackets added) (citation
omitted)).
Applying that “clear statement rule,” this Court
has “made plain that most time bars are
nonjurisdictional.” Kwai Fun Wong, 575 U.S. at 410.
Indeed, this Court has not found a single statutory
filing deadline sufficiently clear to qualify as
jurisdictional under that rule.
B. Section 6330(d)(1) Is Not The Rare
Jurisdictional Time Limit
Section 6330(d)(1) states:
“The person [who
sought a due process hearing] may, within 30 days of
a determination under this section, petition the Tax
Court for review of such determination (and the Tax
Court shall have jurisdiction with respect to such
matter).” 26 U.S.C. § 6330(d)(1). Nothing in the text,
context, history, or purpose of Section 6330(d)(1)
“indicates (much less does so plainly) that Congress
meant to enact something other than a standard time
bar.” Kwai Fun Wong, 575 U.S. at 410.
1. As an initial matter, the mere fact that the
deadline and the jurisdictional grant are both located
in Section 6330(d)(1) does not mean that the deadline
is “jurisdictional.” This Court has repeatedly rejected
such “proximity-based argument[s].” Auburn Reg’l,
568 U.S. at 155; see also Weinberger v. Salfi, 422 U.S.
749, 763-64 (1975); Gonzalez v. Thaler, 565 U.S. 134,
143-47 (2012). As the Court has admonished, “[a]
requirement we would otherwise classify as
nonjurisdictional . . . does not become jurisdictional
simply because it is placed in a section of a statute
that also contains jurisdictional provisions.” Auburn
Reg’l, 568 U.S. at 155.
18
So while there is no dispute that something in
Section 6330(d)(1) has jurisdictional significance, it
must be clear and unequivocal that this something is
the 30-day time limit. It is not.
Section 6330(d)(1) does not expressly condition the
Tax Court’s “jurisdiction” on compliance with the 30day filing deadline. As the D.C. Circuit held, nothing
in the sentence’s structure “‘conditions the
jurisdictional grant on the limitations period, or
otherwise links’ those separate clauses.” Myers, 928
F.3d at 1035 (quoting Kwai Fun Wong, 575 U.S. at
412).
The Ninth Circuit read Section 6330(d)(1)’s “plain
language” to “confer[] jurisdiction on the Tax Court if
(and only if) a petition for review is filed in that court
within thirty days of the IRS’s determination.”
Duggan, 879 F.3d at 1034. But the provision’s “plain
language” does not say that—the word “if” does not
appear at all. The Ninth Circuit relied heavily on an
analogy to a different statute, 26 U.S.C. § 6015,
governing a different deadline for appealing to the
Tax Court. See Duggan, 879 F.3d at 1033. In contrast
to the provision at issue here, Section 6015(e)(1)(A)—
often referred to as the “innocent spouse” provision—
states that an individual “may petition the Tax Court
(and the Tax Court shall have jurisdiction) to
determine the appropriate relief available to the
individual under this section if such petition is filed”
by certain time deadlines. 26 U.S.C. § 6015(e)(1)(A)
(emphasis added). That subparagraph expressly
conditions the Tax Court’s jurisdiction on whether
(“if”) the petition is filed within a certain time frame.
See Nauflett v. Commissioner, 892 F.3d 649, 652-53
(4th Cir. 2018) (holding Section 6015(e)(1)(A) time
limit to be jurisdictional under clear-statement rule);
19
Rubel v. Commissioner, 856 F.3d 301, 304-05 (3d Cir.
2017) (same); Matuszak v. Commissioner, 862 F.3d
192, 196 (2d Cir. 2017) (same). Section 6330(d)(1)
does not.4
The Eighth Circuit, for its part, pointed to the
parenthetical’s use of the phrase “such matter,”
reasoning that the antecedent must be “a petition to
the tax court that: (1) arises from ‘a determination
under this section’ and (2) was filed ‘within 30 days’
of that determination.” App. 6a-7a (second emphasis
added). But there is no reason to assume the second
qualification. And read in context, the phrase “such
matter” is best understood to refer to the subject
matter of the petition. A near-identical phrase, “[s]uch
[m]atters,” appears in the title to the prior subsection
(c), which details what “[m]atters” are to be
considered at the due process hearing itself. 26 U.S.C.
§ 6330(c); see supra at 3-4. Subsection (d), in turn,
refers both to the “determination” and the “petition”
for review. Id. § 6330(d)(1). The Tax Court thus has
jurisdiction to consider “such matter”—i.e.,
everything “considered at [the] hearing” (id.
§ 6330(c)), and addressed in the determination or the
petition for review (id. § 6330(d)(1)). Or as the D.C.
Circuit explained it in analyzing the language of
Section 7623(b)(4), “the type of appeal to which ‘such
matter’ refers is most naturally identified by the
subject matter of the appeal—namely, ‘any
4
Whether Section 6015(e)(1)(A)’s filing deadline is
jurisdictional is not at issue here. But it certainly does not follow
that the filing deadline in Section 6330(d)(1) should be read in
kind. The grammatical structures of the two provisions are
entirely different, and a plain reading of one does not control the
other.
20
determination regarding an award under paragraph
(1), (2), or (3)’—and not by the requirement that it be
filed ‘within 30 days of such determination.’” Myers,
928 F.3d at 1035.
2. The nonjurisdictional reading of the filing
deadline is reinforced by the structure of Section
6330(d)(1). The jurisdictional grant is separated from
the rest of the provision by parentheses and is
introduced by the word “and,” signifying a new
independent clause. See William Strunk Jr. & E.B.
White, The Elements of Style 5-7, 90 (4th ed. 2000)
(independent clauses are “grammatically complete”
sentences and may be “joined by a coordinating
conjunction”). And the filing deadline is separated
from the rest of the sentence by commas. That is, the
jurisdictional grant and the time limit appear in
distinct clauses, and the provision does not expressly
condition jurisdiction on the time limit or otherwise
link the two.5
3. There are good reasons why Congress would
not have wanted to attach such “drastic”
jurisdictional consequences to the 30-day filing
deadline in Section 6330(d)(1). App. 12a (Kelly, J.,
concurring in part and concurring in the judgment).
Section 6330 is an important procedural safeguard for
taxpayers: it is the taxpayer’s only opportunity to
5
The Eighth Circuit majority cited Section 6330(e)(1) in
passing (App. 7a), but the Commissioner did not rely on that
subsection in making its statutory interpretation argument on
appeal. For good reason. Although Section 6330(e)(1) limits the
Tax Court’s jurisdiction to grant certain injunctive relief to
“timely” appeals, it defines the court’s jurisdiction only “under
this paragraph” (meaning, paragraph (e)(1)), and does not define
what “timely filed” means—leaving open the possibility that a
petition deemed timely by way of equitable tolling could qualify.
21
challenge the IRS’s actions before collection, which
could entail the loss of a home, a car, or a savings
account. See supra at 4. Thirty days is also a
relatively short period of time to file a petition for
review compared to other Tax Court filing deadlines.
Cf. 26 U.S.C. § 6213(a) (90 days for U.S. addressees
and 150 days for foreign addressees to petition the
Tax Court for redetermination of a deficiency); id.
§ 6015(e)(1) (90 days for taxpayers denied “innocent
spouse” treatment to seek Tax Court review); id.
§ 7345 (no deadline at all to petition for review of an
IRS certification of a “seriously delinquent tax debt,”
in either the Tax Court or district court).
4. The Eighth Circuit accordingly erred in
branding the 30-day deadline as jurisdictional. As
this Court has repeatedly held, the “general rule” is
that nonjurisdictional time limits are subject to
equitable tolling. Kwai Fun Wong, 575 U.S. at 412;
see also Irwin, 498 U.S. at 95-96 (time requirements
“are customarily subject to ‘equitable tolling’”). The
Eighth Circuit did not separately consider whether
that presumption can be overcome here. And the only
court of appeals to have considered that question has
concluded that it cannot. See Myers, 928 F.3d at 103637 (holding that Section 7623(b)(4) is subject to
equitable tolling). Although this Court would not
need to reach this secondary issue (see infra at 28),
the D.C. Circuit was correct.
The presumption in favor of equitable tolling is
especially strong here because the provision at issue
was enacted in 1998—eight years after this Court’s
decision in Irwin. See Holland v. Florida, 560 U.S.
631, 646 (2010) (explaining that the presumption in
favor of equitable tolling is “reinforced” for post-Irwin
statutes). Nothing in the Internal Revenue Code
22
suggests that Section 6330(d)(1)’s time limit is
completely inflexible or that equitable tolling is
otherwise unavailable. See 26 U.S.C. § 6330(d)(1)
(taxpayer “may” petition the Tax Court “within 30
days” (emphasis added)); cf. Nutraceutical Corp. v.
Lambert, 139 S. Ct. 710, 715 (2019) (finding “clear
intent to compel rigorous enforcement” where federal
rules “single[d] out” time limit “for inflexible
treatment”).
Indeed, the whole purpose of the
collection due process regime was to provide more
process to taxpayers before the IRS can seize their
property by levy. See supra at 3-4. Taxpayers
navigating this petition for review procedure are often
not “sophisticated,” “repeat players”; rather, the
majority are “laymen” representing themselves pro
se. See Myers, 928 F.3d at 1036-37. And any
suggestion that equitable tolling is incompatible with
the collection due process regime is belied by the
recommendation
of
the
National
Taxpayer
Advocate—an official within the IRS—that Congress
adopt an express equitable tolling provision applicable
to the deadline at issue. See infra at 24-25; cf. United
States v. Brockamp, 519 U.S. 347, 352-53 (1997).
III. The Question Presented Is Important And
This Case Is An Ideal Vehicle
The question presented is an important and
recurring issue, that may disproportionately impact
low-income and pro se taxpayers, and that leads to
unfair and inequitable outcomes. And this case
presents an ideal vehicle for the Court’s review.
1. This is an important and recurring issue. The
National Taxpayer Advocate has found that appeals
from collection due process hearings were the single
most litigated issue in the Tax Court in 2020. See
23
Annual Report to Congress 2020, supra at 162, 183.
In fact, appeals from such hearings “have been one of
the federal tax issues most frequently litigated in the
federal courts since 2001.” Id. at 184. Of the 27,844
collection due process hearings requested in 2020,
1,185 resulted in petitions to the Tax Court. Id. at
185.
As for the specific jurisdictional question
presented, five courts of appeals have been presented
with that issue in just the last three years. See App.
3a-10a; Duggan, 879 F.3d at 1031-35; Myers, 928 F.3d
at 1033-36; Cunningham v. Commissioner, 716 F.
App’x 182, 183-84 (4th Cir. 2018) (affirming on other
grounds without deciding whether Section 6330(d)(1)
is jurisdictional); Castillo, No. 20-1635 (2d Cir.) (oral
argument not yet scheduled). The Tax Court itself
has “repeatedly held” that the 30-day time limit in
Section 6330(d)(1) is jurisdictional, further
reinforcing how often this specific issue arises.
Guralnik v. Commissioner, 146 T.C. 230, 235 & n.6
(2016) (citing cases).6
And because of the two provisions’ close similarity,
resolving the statutory interpretation issue in this
case would also decide the status of the Section
7623(b)(4) filing deadline for review of IRS
whistleblower decisions.
As the Commissioner
emphasized in asking the D.C. Circuit to grant en
banc review in Myers, because Tax Court decisions
reviewing whistleblower determinations can only be
6
The Tax Court’s longstanding position that it lacks
jurisdiction to review untimely Section 6330(d) petitions also
surely deters many taxpayers from filing petitions for review
that are untimely, even if there are compelling reasons for the
delay.
24
appealed to the D.C. Circuit, that court’s holding
created binding precedent for all IRS whistleblower
cases nationwide. Myers Commissioner En Banc
Pet’n 2, 19; see also 26 U.S.C. § 7482(b)(1). The
Commissioner also characterized the issue as one of
“exceptional importance.” Myers Commissioner En
Banc Pet’n 1. Again, petitioner agrees.
So does the IRS National Taxpayer Advocate.
Citing the uncertainty created by conflicting lower
court decisions, the National Taxpayer Advocate has
recommended that Congress amend the Internal
Revenue Code to provide much needed clarity on the
jurisdictional status of certain Tax Court deadlines,
including Section 6330(d)(1). See National Taxpayer
Advocate, 2021 Purple Book 100-02 (Dec. 31, 2020),
https://www.taxpayeradvocate.irs.gov/wp-content/
uploads/2021/01/ARC20_PurpleBook.pdf; (citing the
decision below, Duggan, and Myers); National
Taxpayer Advocate, 2020 Purple Book 85-87 (Dec.
31, 2019), https://www.taxpayeradvocate.irs.gov/
wp-content/uploads/2020/08/ARC19_PurpleBook.pdf
(citing Duggan and Myers); National Taxpayer
Advocate, 2019 Purple Book 88-90 (Dec. 31, 2018),
https://www.taxpayeradvocate.irs.gov/wp-content/
uploads/2020/07/ARC18_PurpleBook.pdf. As noted
above, the Advocate’s recommendation sides with the
D.C. Circuit and asks Congress to expressly provide
that the deadlines are not jurisdictional and that
equitable tolling is available. 2021 Purple Book,
supra, at 101-02; see also 2020 Annual Report to
Congress, supra, at 170 (noting that while Myers
25
“addresses the problem for whistleblowers, it does not
solve the problem for taxpayers in other contexts”).7
2. As Judge Kelly highlighted in her concurrence,
the issue appears to arise most often for low-income
and pro se taxpayers. App. 12a. A majority of the
taxpayers who file petitions seeking review of
collection due process hearings are proceeding pro se.
Annual Report to Congress 2020, supra, at 188. In
2020, nearly two-thirds (61%) of taxpayers who
litigated their collection due process petitions were
unrepresented, and the vast majority were
individuals rather than businesses (over 90%). Id.;
see also id. at 166 (“The dollars at issue, along with
the taxpayer’s income level, are two key determinants
of whether a taxpayer obtains representation to
navigate the litigation process.”). And the National
Taxpayer
Advocate
has
emphasized
that
“[u]nrepresented taxpayers, in particular, may be less
likely to anticipate the severe consequences of filing a
Tax Court petition even one day late.” 2021 Purple
Book, supra, at 101.
3. The repercussions are indeed severe. For
taxpayers facing levy who have not prevailed in their
due process hearing, the Tax Court is the only judicial
forum in which they may challenge the IRS’s actions
before having their property taken to cover the taxes
or penalties they allegedly owe. Id. (“The sanction for
failing to commence suit in the Tax Court” within the
7
Given the split in the circuits, Congress’s failure to act
thus far cannot be understood as ratification of any particular
judicial interpretation of Section 6330(d)(1). The D.C. Circuit
has interpreted materially identical language to be
nonjurisdictional, and a rational Congress would not intend the
same language to carry two different meanings.
26
prescribed deadline “is severe: taxpayers lose their
day in that court, which may be the only prepayment
forum.”).
There is also no doubt that “[t]reating the
[Internal Revenue Code] time limits for bringing suit
as jurisdictional, and not subject to equitable
doctrines, leads to unfair outcomes.” Id. Take the
facts of the Castillo case currently before the Second
Circuit.
During Josefa Castillo’s collection due
process hearing, she argued that the IRS mistakenly
placed a lien on her property for over $80,000 of
unpaid tax debt she did not owe, due to an
administrative error. Castillo Appellant Br. 6-9, ECF
No. 41. After the hearing, the IRS mailed a notice of
determination to Ms. Castillo’s former attorney,
whose authorization to receive documents she had
revoked months earlier. Id. And while the IRS also
attempted to mail the notice to Ms. Castillo, it was
never delivered, and USPS records showed that it
remained “in transit.” Id. at 9. Ms. Castillo and her
actual attorney did not discover that the
determination had issued until months after the 30day deadline had lapsed. Id. at 8-10. But even though
Ms. Castillo indisputably never received the
determination, the Tax Court dismissed her untimely
petition for lack of jurisdiction. Id. at 9-11.
Ms. Castillo’s case—though appalling—is far from
unique.
Certain aspects of Section 6330(d)(1)’s
deadline (which is already short) and past IRS
practice can set traps for unwary taxpayers. For
example, the 30-day deadline starts from the date the
IRS mails the notice of determination, regardless of
when the taxpayer receives it. And the Internal
Revenue Code’s “timely mail[ed]” rule—which
considers a petition to be filed on the date it is
27
postmarked—does not apply to all forms of mailing.
See 26 U.S.C. § 7502; Guralnik, 146 T.C. at 238-41;
see also, e.g., Sarrell v. Commissioner, 117 T.C. 122,
123-26 (2001) (IRS mailed notice of determination to
taxpayer in Israel; it arrived on Day 25; petition was
mailed on Day 30 because of intervening Israeli
holidays, but was not considered “timely mailed” due
to the foreign postmark).
The phrasing of the notice of determination itself
can also confuse taxpayers. See Annual Report to
Congress 2020, supra, at 186 (raising concern about
whether the IRS mailings “provide adequate notice to
identify when the 30-day period to petition the court
following receipt of a Notice of Determination
begins”).
Indeed, “[t]he IRS itself occasionally
provides inaccurate information regarding the filing
deadline to a taxpayer, and taxpayers have been
harmed by relying on that erroneous information.”
2021 Purple Book, supra, at 101 (emphasis added); cf.
Nauflett, 892 F.3d at 652-54 (equitable tolling did not
apply to innocent-spouse case despite spouse’s
reliance on erroneous IRS advice regarding the filing
deadline); Rubel, 856 F.3d at 306 (same).
4. Finally, this case is a clean vehicle for the
Court’s review. The court of appeals’ answer to the
jurisdictional question was dispositive of petitioner’s
attempt to seek review in the Tax Court. The Eighth
Circuit affirmed the Tax Court’s dismissal of the
petition for review as untimely based entirely on its
determination
that
Section
6330(d)(1)
is
jurisdictional. See App. 8a n.3. The issue is thus
squarely presented for the Court’s review.
The Eighth Circuit did not separately decide
whether, if Section 6330(d)(1) is nonjurisdictional,
equitable tolling would be available. Before the panel,
28
the Commissioner argued that equitable tolling was
not available regardless, but he did not press that
argument in opposing rehearing.
See Boechler
Appellee’s Opp. to En Banc Pet’n. And the only court
of appeals to address that secondary issue has
concluded that equitable tolling is available (with
respect to materially identical language). See Myers,
928 F.3d at 1036-37.
This splitless issue is not independently worthy of
the Court’s review. But it is included within the
question presented and could either be briefed on the
merits or remanded for the Eighth Circuit to decide in
the first instance. Compare Hamer, 138 S. Ct. at 22
(declining to decide whether claim-processing rule
was subject to equitable considerations after deeming
it nonjurisdictional), with Kwai Fun Wong, 575 U.S.
at 412 (deciding that statute allowed for equitable
tolling after deeming it nonjurisdictional). Either
way, the ultimate question whether petitioner is
entitled to equitable tolling would be left for the Tax
Court on remand.
29
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
MELISSA ARBUS SHERRY
Counsel of Record
CAROLINE A. FLYNN
AMY FEINBERG
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
melissa.sherry@lw.com
Counsel for Petitioner
April 16, 2021
APPENDIX
TABLE OF CONTENTS
Page
Opinion of the United States Court of Appeals
for the Eighth Circuit, Boechler, P.C. v.
Commissioner, 967 F.3d 760 (8th Cir.
2020) ....................................................................1a
Order of the United States Tax Court Granting
Motion to Dismiss, Boechler, P.C. v.
Commissioner, No. 18578-17 L (T.C. Feb.
15, 2019) ............................................................13a
Order of the United States Court of Appeals for
the Eighth Circuit Denying Rehearing,
Boechler, P.C. v. Commissioner, No. 192003 (8th Cir. Nov. 17, 2020) ...........................16a
26 U.S.C. § 6015 ......................................................18a
26 U.S.C. § 6330 ......................................................31a
26 U.S.C. § 7623 ......................................................39a
1a
UNITED STATES COURT OF APPEALS,
FOR THE EIGHTH CIRCUIT
BOECHLER, P.C., Appellant,
v.
COMMISSIONER OF INTERNAL
REVENUE, Appellee
The Federal Tax Clinic of the Legal Services
Center of Harvard Law School, Amicus on
Behalf of Appellant(s)
No. 19-2003
Submitted: June 17, 2020
Filed: July 24, 2020
967 F.3d 760
Before KELLY, ERICKSON, and STRAS, Circuit
Judges.
ERICKSON, Circuit Judge.
Boechler, P.C. (“Boechler”) filed a petition for
review of a notice of determination from the
Commissioner of Internal Revenue (“IRS”). Under 26
U.S.C. § 6330(d)(1), a party has 30 days to file a
petition for review. Boechler filed one day after the
filing deadline had passed. The tax court1 dismissed
the petition on the ground that it lacked jurisdiction
because the petition was untimely.
We have
jurisdiction under 26 U.S.C. § 7842 and we affirm.
1 The Honorable Lewis R. Carluzzo, Chief Special Trial
Judge, United States Tax Court.
2a
I. Background
On June 5, 2015, the IRS sent Boechler a letter
noting a discrepancy between prior tax document
submissions. The IRS did not receive a response and
imposed a 10% intentional disregard penalty.
Boechler did not pay the penalty. The IRS mailed
Boechler a notice of intent to levy. Boechler timely
requested a Collection Due Process (“CDP”) hearing
but failed to establish grounds for relief on the
discrepancy or the unpaid penalty. On July 28, 2017,
the Office of Appeals mailed a determination
sustaining the levy to Boechler’s last known address
in Fargo, North Dakota. The notice of determination,
delivered on July 31, stated that Boechler had 30 days
from the date of determination, i.e. until August 28,
2017, to submit a petition for a CDP hearing.
Boechler mailed a petition for a CDP hearing on
August 29, 2017, one day after the 30-day filing
deadline had expired. The United States Tax Court
received Boechler’s untimely petition and the IRS
moved to dismiss for lack of jurisdiction. Boechler
objected, arguing that the 30-day time limit in 26
U.S.C. § 6330(d)(1) is not jurisdictional, the time limit
should be equitably tolled, and calculating the time
limit from issuance rather than receipt violates due
process. The tax court dismissed the petition for lack
of jurisdiction. Boechler appealed.
II. Discussion
We review questions of the tax court’s subject matter
jurisdiction de novo. Martin S. Azarian, P.A. v.
Comm’r, 897 F.3d 943, 944 (8th Cir. 2018). The tax
court is an Article I court and as such it is a court with
“strictly limited jurisdiction.” Bartman v. C.I.R., 446
F.3d 785, 787 (8th Cir. 2006) (quoting Kelley v.
3a
Comm’r, 45 F.3d 348, 351 (9th Cir. 1995)). The
Supreme Court has “repeatedly held that filing
deadlines ordinarily are not jurisdictional” but
instead are usually “quintessential claim-processing
rules.” Sebelius v. Auburn Reg. Med. Ctr., 568 U.S.
145, 154, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013)
(internal quotation marks omitted). That said, a rule
that “governs a court’s adjudicatory capacity” is
jurisdictional and “[o]ther rules, even if important or
mandatory . . . should not be given the jurisdictional
brand.” Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011).
We address first the threshold issue of whether the
30-day time limit in 26 U.S.C. § 6330(d)(1) is
jurisdictional. The statute provides:
The person may, within 30 days of a
determination under this section, petition the
Tax Court for review of such determination
(and the Tax Court shall have jurisdiction with
respect to such matter).
A few years ago, this court considered § 6330 in the
context of whether the tax court’s jurisdiction over
original notices of determination extended to
supplemental notices. Hauptman v. C.I.R., 831 F.3d
950, 952–53 (8th Cir. 2016). In Hauptman, the panel
identified two prerequisites for jurisdiction over an
initial notice of determination: (1) the issuance of a
notice of determination following a CDP hearing, and
(2) the taxpayer’s filing of a petition challenging that
determination within 30 days of the issuance date. Id.
at 953 (citing Gillum v. Comm’r, 676 F.3d 633, 647
(8th Cir. 2012); Gray v. Comm’r, 723 F.3d 790, 793
(7th Cir. 2013)); see Tschida v. C.I.R., 57 F. App’x.
715, 715–16 (8th Cir. 2003) (per curiam) (unreported)
4a
(holding that the failure to comply with § 6330(d)(1)
deprived the tax court of jurisdiction). Because
neither of these factors were at issue in Hauptman
the court rejected the argument that the tax court
lacked jurisdiction to review supplemental notices.
Hauptman, 831 F.3d at 953.
Although the IRS argues that we are bound by
Hauptman and required to find § 6330(d)(1)
jurisdictional, Hauptman simply did not address
jurisdictional issues raised by an untimely filing of a
petition. Instead, the gravamen of the holding was
limited to the question of whether the tax court’s
jurisdiction extended to supplemental notices of
determination. While persuasive, the jurisdictional
test laid out in Hauptman was obiter dicta addressing
an issue not before the court. See Sanzone v. Mercy
Health, 954 F.3d 1031, 1039 (8th Cir. 2020) (“Dicta is
a judicial comment made while delivering a judicial
opinion, but one that is unnecessary to the decision in
the case and therefore not precedential.”) (cleaned
up). As we are not bound by the dicta of another
panel, we must determine if the filing deadline in
§ 6330(d)(1) is jurisdictional. See id.
As a general principle, a statutory time limit is
jurisdictional when Congress clearly states that it is.
Musacchio v. United States, ––– U.S. ––––, 136 S. Ct.
709, 717, 193 L.Ed.2d 639 (2016). Mere proximity to
a jurisdictional provision is insufficient. See Sebelius,
568 U.S. at 155–56, 133 S.Ct. 817 (stating that an
otherwise non-jurisdictional provision does not
become jurisdictional “simply because it is placed in a
section of a statute that also contains jurisdictional
provisions”). “Congress must do something special,
beyond setting an exception-free deadline, to tag a
[time limit] as jurisdictional and so prohibit a court
5a
from tolling it.” United States v. Kwai Fun Wong, 575
U.S. 402, 410, 135 S.Ct. 1625, 191 L.Ed.2d 533 (2015).
Even so, Congress does not have to “incant magic
words” to make a deadline jurisdictional if the
“traditional tools of statutory construction . . . plainly
show that Congress imbued a procedural bar with
jurisdictional consequences.” Id. We determine
whether Congress made the necessary clear
statement by examining “the text, context, and
relevant historical treatment of the provision at
issue.” Musacchio, 136 S. Ct. at 717 (internal
quotation marks omitted).
Boechler, relying on Myers v. Commissioner,
asserts § 6330(d)(1) is non-jurisdictional. See 928
F.3d 1025 (D.C. Cir. 2019). In Myers, the D.C. Circuit
examined whether an untimely filing under 26 U.S.C.
§ 7623(b)(4), which includes an identically worded
parenthetical as the one found in § 6330, deprived the
tax court of jurisdiction.2 Id. at 1033–36. The Myers
court noted that § 7623(b)(4) “comes closer to
satisfying the clear statement requirement than any
the Supreme Court has heretofore held to be nonjurisdictional.” Myers, 928 F.3d at 1035. However,
the court ultimately held that the statute did not
“condition[ ] the jurisdictional grant on the
limitations period, or otherwise link[ ] those separate
clauses.” Id. The D.C. Circuit determined that there
was no clear statement that the 30-day limit in
§ 7623(b)(4) was jurisdictional; instead, it held that
2
Section 7623(b)(4) provides: Any determination
regarding an award under paragraph (1), (2), or (3) may, within
30 days of such determination, be appealed to the Tax Court (and
the Tax Court shall have jurisdiction with respect to such
matter).
6a
the limit was merely in close proximity to
jurisdictional terms referring to the general appeal,
not a timely-filed appeal. Id. at 1035.
The IRS directs our attention to the Ninth
Circuit’s decision in Duggan v. Commissioner, 879
F.3d 1029 (9th Cir. 2018), which held that
§ 6330(d)(1) is jurisdictional. In that case, the
plaintiff also filed his petition for review one day after
the filing deadline. Id. at 1031. The Ninth Circuit
determined that § 6330(d)(1) “expressly contemplates
the Tax Court’s jurisdiction” and “makes timely filing
of the petition a condition of the Tax Court’s
jurisdiction.” Id. at 1034. The court explained that it
was significant that “the filing deadline is given in the
same breath as the grant of jurisdiction.” Id. In
reaching the conclusion that § 6330(d)(1) is
jurisdictional, the Ninth Circuit noted “the test is
whether Congress made a clear statement, not
whether it made the clearest statement possible.” Id.
We find the Ninth Circuit’s analysis persuasive.
The statutory text of § 6330(d)(1) is a rare instance
where Congress clearly expressed its intent to make
the filing deadline jurisdictional. The provision
states: The person may, within 30 days of a
determination under this section, petition the Tax
Court for review of such determination (and the Tax
Court shall have jurisdiction with respect to such
matter). 26 U.S.C. § 6330(d)(1). The parenthetical
“(and the Tax Court shall have jurisdiction with
respect to such matter)” is clearly jurisdictional and
renders the remainder of the sentence jurisdictional.
See Fort Bend Cty. v. Davis, ––– U.S. ––––, 139 S. Ct.
1843, 1849, 204 L.Ed.2d 116 (2019).
A plain reading demonstrates that the phrase
“such matter” refers to a petition to the tax court that:
7a
(1) arises from “a determination under this section”
and (2) was filed “within 30 days” of that
determination.
See Myers, 928 F.3d at 1039
(Henderson, J., dissenting) (reaching the same
conclusion when analyzing the identically worded
parenthetical in § 7623(b)(4)); see also 26 U.S.C.
§ 6330(e)(1) (“The Tax Court shall have no
jurisdiction under this paragraph to enjoin any action
or proceeding unless a timely appeal has been filed
under subsection (d)(1) . . .”). Unlike other statutory
provisions that have been found to be nonjurisdictional by the Supreme Court, § 6330(d)(1)
speaks “in jurisdictional terms.” Musacchio, 136 S.
Ct. at 717 (finding 18 U.S.C. § 3282(a) nonjurisdictional). The use of “such matter” “plainly
show[s] that Congress imbued a procedural bar with
jurisdictional consequences.” Kwai Fun Wong, 575
U.S. at 410, 135 S.Ct. 1625. This phrase provides the
link between the 30-day filing deadline and the grant
of jurisdiction to the tax court that other statutory
provisions lack. Cf. Henderson, 562 U.S. at 438, 131
S.Ct. 1197 (finding that a 120-day deadline “[i]n order
to obtain review” “does not speak in jurisdictional
terms or refer in any way to the jurisdiction of the
Veterans Court”); Gonzalez v. Thaler, 565 U.S. 134,
146–47, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012)
(rejecting the argument that placing a provision in a
section containing jurisdictional provisions makes it
jurisdictional); Sebelius, 568 U.S. at 154, 133 S.Ct.
817 (finding that the language “may obtain a hearing”
does not speak in jurisdictional terms). While there
might be alternative ways that Congress could have
stated the jurisdictional nature of the statute more
plainly, it has spoken clearly enough to establish that
8a
§ 6330(d)(1)’s 30-day filing deadline is jurisdictional.3
See Duggan, 879 F.3d at 1034; Sebelius, 568 U.S. at
153, 133 S.Ct. 817.
Boechler also contends that counting the 30-day
filing deadline from the date of determination rather
than the date of receipt is a violation of due process or
equal protection under the Fifth Amendment. We
review this question of law de novo. See Linn Farms
and Timber Ltd. P’ship v. Union Pac. R. Co., 661 F.3d
354, 357 (8th Cir. 2011). To satisfy due process, the
government must “provide owners notice and
opportunity for hearing appropriate to the nature of
the case.” Id. (internal quotation marks omitted).
“The Supreme Court has long held that when the
[government] chooses to regulate differentially, with
the laws falling unequally on different geographic
areas . . . the Equal Protection Clause is not violated
so long as there is no underlying discrimination
against particular persons or groups. The Equal
Protection Clause protects people, not places.” Reeder
v. Kansas City Bd. of Police Comm’rs, 796 F.2d 1050,
1053 (8th Cir. 1986).
A statutory time limit challenged as an arbitrary
and irrational classification that violates due process
or equal protection, which does not draw a suspect
classification or violate a fundamental right, need
only be supported by a rational legislative purpose.
See Holder v. Gonzales, 499 F.3d 825, 830–31 (8th
3
Because we hold that § 6330(d)(1) is jurisdictional,
Boechler is not entitled to equitable tolling. See Kwai Fun Wong,
575 U.S. at 408–09, 135 S.Ct. 1625 (holding that a litigant’s
failure to comply with a jurisdictional bar deprives a court of all
authority to hear a case even if equitable considerations would
support extending the prescribed time period).
9a
Cir. 2007) (rejecting claim that a law requiring
appeals to be filed in Virginia violated equal
protection because non-Virginians are not a protected
class); see also United States v. Prior, 107 F.3d 654,
660–61 (8th Cir. 1997) (applying rational basis review
to criminal defendant’s challenge to statute of
limitations as arbitrary in violation of Fifth
Amendment). A statutory time period’s starting point
satisfies rational basis review if it promotes an
agency’s “fiscal integrity” by insuring a workable
deadline and reasonable timeframe. See Boyd v.
Bowen, 797 F.2d 624, 626–27 (8th Cir. 1986)
(upholding SSA statute of limitations requiring
application be made within six months after children
reached age of majority). Boechler bears the burden
to establish that the filing deadline in § 6330(d)(1) is
arbitrary and irrational. Lundeen v. Canadian Pac.
R. Co., 532 F.3d 682, 689–90 (8th Cir. 2008).
Boechler argues that the 30-day filing deadline is
arbitrary and irrational because it is calculated from
the date of determination rather than the date of
receipt via certified mail and such a calculation
method may result in a 2- or 3-day discrepancy in
receipt date depending on where the taxpayer lives in
relation to an IRS mailer. However, calculating the
filing deadline from the date of determination
streamlines and simplifies the complex undertaking
of enforcing the tax code. If the IRS were required to
wait 30 days from the date that each individual
received notice, it would be unable to levy at the
statutory, uniform time. Calculating from the date of
determination guards against taxpayers refusing to
accept delivery of the notice and promotes efficient
tax enforcement by ensuring a reasonable and
workable timeframe and deadline. Based on these
10a
rational reasons for the calculation method, and
Boechler’s inability to identify any actual
discrimination or discriminatory intent, the 30-day
filing deadline from the date of determination does
not violate the Fifth Amendment.
III. Conclusion
For the foregoing reasons, we affirm.
KELLY, Circuit Judge, concurring in part and
concurring in the judgment.
In 2003, we squarely held that the 30-day filing
deadline in 26 U.S.C. § 6330(d)(1) is jurisdictional.
See Tschida v. Comm’r, 57 F. App’x 715, 715–16 (8th
Cir. 2003) (concluding that “the untimely filing
deprived the tax court of jurisdiction”). As an
unpublished per curiam opinion, Tschida is not
binding precedent, but it is relevant insofar as it has
persuasive value. See 8th Cir. R. 32.1A; White v.
NFL, 756 F.3d 585, 595 (8th Cir. 2014).
Thirteen years after Tschida was decided, we
reached the same conclusion in a published opinion.
We explained that, as a “prerequisite[ ] to the tax
court’s exercise of jurisdiction,” “the taxpayer must
file a petition challenging [a notice of] determination
within thirty days after the determination is issued.”
Hauptman v. Comm’r, 831 F.3d 950, 953 (8th Cir.
2016) (cleaned up). To support this conclusion, we
cited a Seventh Circuit opinion holding that “[u]nless
a taxpayer fulfills the statutory prerequisites for
invoking the Tax Court’s jurisdiction, including filing
a timely petition under section 6330(d)(1), the court
11a
must dismiss a petition for lack of jurisdiction.” See
Gray v. Comm’r, 723 F.3d 790, 793 (7th Cir. 2013).4
The court concludes that our statement in
Hauptman was dicta because “the gravamen of
[Hauptman’s] holding was limited to the question of
whether the tax court’s jurisdiction extended to
supplemental notices of determination,” not original
notices of determination. Ante at 763. But the
taxpayer’s argument in Hauptman was that the tax
court lacked jurisdiction. In resolving that issue, we
decided that (1) the tax court had jurisdiction over the
original notice of determination and (2) there were no
additional requirements for the tax court to acquire
jurisdiction over the supplemental notices. See
Hauptman, 831 F.3d at 953. I do not think we could
have found there was jurisdiction over the
supplemental notices without also finding there was
jurisdiction over the original notice. See id. (noting
that “the same jurisdictional prerequisites apply” to
both original and supplemental notices). And we
explicitly found that the tax court had jurisdiction
over the original notice because both jurisdictional
prerequisites were satisfied. See id. Although this
issue was not contested by the parties, I believe it was
necessary to our decision. See Sanzone v. Mercy
Health, 954 F.3d 1031, 1039 (8th Cir. 2020) (stating
that dicta is “a judicial comment . . . that is
unnecessary to the decision” (cleaned up)).
4
Hauptman and Gray were decided after the Supreme
Court had adopted a clear-statement rule and “repeatedly held
that filing deadlines ordinarily are not jurisdictional.” See
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154, 133 S.Ct.
817, 184 L.Ed.2d 627 (2013) (collecting cases).
12a
As the court notes, deeming the 30-day filing
deadline in 26 U.S.C. § 6330(d)(1) jurisdictional is an
unusual departure from the ordinary rule that filing
deadlines are “quintessential claim-processing rules.”
See Henderson ex rel. Henderson v. Shinseki, 562
U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011).
This may have “drastic” consequences for litigants,
id., and I am concerned the burden may fall
disproportionately on low-income taxpayers, as the
amicus suggests. I am not convinced the statute
contains a sufficiently clear statement to justify this
result. See Myers v. Comm’r, 928 F.3d 1025, 1036
(D.C. Cir. 2019) (holding that the “nearly identical”
filing deadline in 26 U.S.C. § 7623(b)(4) is not
jurisdictional). But in light of our long-standing
precedent, I concur in the court’s judgment.
13a
UNITED STATES TAX COURT
WASHINGTON, DC 20217
BOECHLER, P.C.,
Petitioner,
v.
COMMISSIONER OF
INTERNAL
REVENUE,
Respondent
)
)
)
)
) Docket No. 18578-17 L
)
)
)
)
)
)
ORDER OF DISMISSAL
This section 6330(d)1 case is before the Court on
respondent’s Motion to Dismiss for Lack of
Jurisdiction, filed October 4, 2017. Respondent’s
motion is based upon the ground that the petition was
not filed within the 30-day period prescribed by
section 6330(d).
Reciting the relevant procedural history of this
case is easily done. In a Notice of Determination
Concerning Collection Action(s) Under Sections 6320
and/or 6330, dated July 28, 2017 (notice), respondent
determined that a levy is an appropriate collection
action with respect to Federal tax liabilities
respondent claims to be due from petitioner. A Form
1 Unless otherwise noted, section references are to the
Internal Revenue Code of 1986, as amended, and Rule references
are to the Tax Court Rules of Practice and Procedure, available
on the Internet at www.ustaxcourt.gov.
14a
3877 certified mailing list indicates that the notice
was sent to petitioner’s last known address by
certified mail on July 28, 2017. USPS tracking
information shows that the notice was delivered to
petitioner on July 31, 2017.
As respondent’s motion points out, to be timely a
petition filed in response to the notice would have to
have been filed with, or properly mailed to the Court
on or before August 27, 2017, but because that date
was a Sunday, the last day to file, or properly mail a
petition was instead Monday, August 28, 2017. See
sec. 7503. That didn't happen. The U.S. postmark on
the envelope containing the petition indicates that the
petition was mailed on August 29, 2017. The petition
was not received and filed by the Court until
September 1, 2017.
In cases such as this one, the Court’s jurisdiction
depends on the issuance of a valid notice of
determination by respondent’s Office of Appeals and
the timely filing of a petition by the taxpayer in
response. Sec. 6330(d)(l); Weber v. Commissioner,
122 T.C. 258, 261 (2004); Sarrell v. Commissioner,
117 T.C. 122, 125 (2001); see Rule 330(b). See
generally Rules 330-334.
Petitioner’s objection to respondent’s motion was
filed on November 28, 2017. According to petitioner:
(1) the 30-day period prescribed in section 6330(d)(l)
is not jurisdictional, but if it is, then (2) section
6330(d)(l) is subject to equitable tolling, and (3) the
manner that respondent (not to mention this Court)
calculates the 30-day period, that is from the date of
mailing rather than the date of receipt, violates
petitioner’s rights under the 5th Amendment because
that method is arbitrary.
15a
None of petitioner’s objections are persuasive.
We have repeatedly held that “[t]he 30-day period
provided in section 6330(d)(l) for the filing of a
petition for review is jurisdictional.”
Gray v.
Commissioner, 138 T.C. 295, 299 (2012).
Furthermore, in Guralnik v. Commissioner, 146 T.C.
230, 237-238 (2016), we held that because the
statutorily-prescribed filing period is jurisdictional,
the period is not subject to equitable tolling, see
Auburn Reg’l Med. Ctr., 133 S. Ct. at 824 (a court may
not apply equitable tolling to a jurisdictional filing
requirement); Pollock v. Commissioner, 132 T.C. 21,
29 (2009) (“If a deadline is jurisdictional, a court may
not use equitable tolling to extend it * * * even if the
result is harsh.”). Lastly, we reject petitioner’s claim
that the manner by which the 30-day period is
calculated is arbitrary and violative of petitioner’s 5th
Amendment rights. Other than point out how the
method affects the filing period, petitioner has not
explained why the method is arbitrary. Furthermore,
the method reflects the standard and consistent way
that various periods provided for under the Internal
Revenue Code and other Federal statutes are
calculated. See, e.g., 2 U.S.C. 394(a); Rule 25; Fed. R.
Civ. P. 6. That being so, it is
ORDERED that respondent’s motion is granted
and this case is dismissed for lack of jurisdiction upon
the ground that the petition was not filed within the
period prescribed by section 6330(d).
/s/ Lewis R. Carluzzo
Lewis R. Carluzzo
Chief Special Trial Judge
ENTERED: FEB 15 2019
16a
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
No. 19-2003
Boechler, P.C.
Appellant
v.
Commissioner of Internal Revenue
Appellee
-----------------------------The Federal Tax Clinic of the Legal Services Center
of Harvard Law School
Amicus on Behalf of Appellant(s)
Appeal from the United States Tax Court
(018578-17L)
ORDER
The petition for rehearing en banc is denied. The
petition for panel rehearing is also denied.
Judges Loken, Colloton and Kelly would grant the
petition for rehearing en banc.
November 17, 2020
17a
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit
/s/ Michael E. Gans
18a
26 U.S.C. § 6015
§6015. Relief from joint and several liability on
joint return
(a) In general
Notwithstanding section 6013(d)(3)—
(1) an individual who has made a joint return
may elect to seek relief under the procedures
prescribed under subsection (b); and
(2) if such individual is eligible to elect the
application of subsection (c), such individual may, in
addition to any election under paragraph (1), elect
to limit such individual’s liability for any deficiency
with respect to such joint return in the manner
prescribed under subsection (c).
Any determination under this section shall be made
without regard to community property laws.
(b) Procedures
for
relief
from
applicable to all joint filers
liability
(1) In general
Under procedures prescribed by the Secretary,
if—
(A) a joint return has been made for a taxable
year;
(B) on
such
return
there
is
an
understatement of tax attributable to erroneous
items of one individual filing the joint return;
(C) the other individual filing the joint return
establishes that in signing the return he or she
did not know, and had no reason to know, that
there was such understatement;
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(D) taking into account all the facts and
circumstances, it is inequitable to hold the other
individual liable for the deficiency in tax for such
taxable
year
attributable
to
such
understatement; and
(E) the other individual elects (in such form
as the Secretary may prescribe) the benefits of
this subsection not later than the date which is 2
years after the date the Secretary has begun
collection activities with respect to the individual
making the election,
then the other individual shall be relieved of
liability for tax (including interest, penalties, and
other amounts) for such taxable year to the extent
such
liability
is
attributable
to
such
understatement.
(2) Apportionment of relief
If an individual who, but for paragraph (1)(C),
would be relieved of liability under paragraph (1),
establishes that in signing the return such
individual did not know, and had no reason to
know, the extent of such understatement, then
such individual shall be relieved of liability for tax
(including interest, penalties, and other amounts)
for such taxable year to the extent that such
liability is attributable to the portion of such
understatement of which such individual did not
know and had no reason to know.
(3) Understatement
For purposes of this subsection, the term
“understatement” has the meaning given to such
term by section 6662(d)(2)(A).
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(c) Procedures to limit liability for taxpayers no
longer married or taxpayers legally
separated or not living together
(1) In general
Except as provided in this subsection, if an
individual who has made a joint return for any
taxable year elects the application of this
subsection, the individual’s liability for any
deficiency which is assessed with respect to the
return shall not exceed the portion of such
deficiency properly allocable to the individual
under subsection (d).
(2) Burden of proof
Except as provided in subparagraph (A)(ii) or
(C) of paragraph (3), each individual who elects the
application of this subsection shall have the
burden of proof with respect to establishing the
portion of any deficiency allocable to such
individual.
(3) Election
(A) Individuals eligible to make election
(i) In general
An individual shall only be eligible to elect
the application of this subsection if—
(I) at the time such election is filed, such
individual is no longer married to, or is
legally separated from, the individual with
whom such individual filed the joint return
to which the election relates; or
(II) such individual was not a member of
the same household as the individual with
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whom such joint return was filed at any time
during the 12-month period ending on the
date such election is filed.
(ii) Certain taxpayers ineligible to elect
If the Secretary demonstrates that assets
were transferred between individuals filing a
joint return as part of a fraudulent scheme by
such individuals, an election under this
subsection by either individual shall be invalid
(and section 6013(d)(3) shall apply to the joint
return).
(B) Time for election
An election under this subsection for any
taxable year may be made at any time after a
deficiency for such year is asserted but not later
than 2 years after the date on which the Secretary
has begun collection activities with respect to the
individual making the election.
(C) Election not valid with respect to certain
deficiencies
If the Secretary demonstrates that an
individual making an election under this
subsection had actual knowledge, at the time such
individual signed the return, of any item giving
rise to a deficiency (or portion thereof) which is not
allocable to such individual under subsection (d),
such election shall not apply to such deficiency (or
portion). This subparagraph shall not apply where
the individual with actual knowledge establishes
that such individual signed the return under
duress.
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(4) Liability increased by reason
transfers of property to avoid tax
of
(A) In general
Notwithstanding any other provision of this
subsection, the portion of the deficiency for
which the individual electing the application
of this subsection is liable (without regard to
this paragraph) shall be increased by the
value of any disqualified asset transferred to
the individual.
(B) Disqualified asset
For purposes of this paragraph—
(i) In general
The term “disqualified asset” means any
property or right to property transferred to
an individual making the election under
this subsection with respect to a joint return
by the other individual filing such joint
return if the principal purpose of the
transfer was the avoidance of tax or
payment of tax.
(ii) Presumption
(I) In general
For purposes of clause (i), except as
provided in subclause (II), any transfer
which is made after the date which is 1
year before the date on which the first
letter of proposed deficiency which allows
the taxpayer an opportunity for
administrative review in the Internal
Revenue Service Office of Appeals is sent
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shall be presumed to have as its principal
purpose the avoidance of tax or payment
of tax.
(II) Exceptions
Subclause (I) shall not apply to any
transfer pursuant to a decree of divorce
or separate maintenance or a written
instrument incident to such a decree or to
any transfer which an individual
establishes did not have as its principal
purpose the avoidance of tax or payment
of tax.
(d) Allocation of deficiency
For purposes of subsection (c)—
(1) In general
The portion of any deficiency on a joint return
allocated to an individual shall be the amount
which bears the same ratio to such deficiency as
the net amount of items taken into account in
computing the deficiency and allocable to the
individual under paragraph (3) bears to the net
amount of all items taken into account in
computing the deficiency.
(2) Separate treatment of certain items
If a deficiency (or portion thereof) is attributable
to—
(A) the disallowance of a credit; or
(B) any tax (other than tax imposed by section
1 or 55) required to be included with the joint
return;
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and such item is allocated to one individual under
paragraph (3), such deficiency (or portion) shall be
allocated to such individual. Any such item shall
not be taken into account under paragraph (1).
(3) Allocation of items giving rise to the
deficiency
For purposes of this subsection—
(A) In general
Except as provided in paragraphs (4) and (5),
any item giving rise to a deficiency on a joint
return shall be allocated to individuals filing the
return in the same manner as it would have
been allocated if the individuals had filed
separate returns for the taxable year.
(B) Exception where other spouse benefits
Under rules prescribed by the Secretary, an
item otherwise allocable to an individual under
subparagraph (A) shall be allocated to the other
individual filing the joint return to the extent
the item gave rise to a tax benefit on the joint
return to the other individual.
(C) Exception for fraud
The Secretary may provide for an allocation
of any item in a manner not prescribed by
subparagraph (A) if the Secretary establishes
that such allocation is appropriate due to fraud
of one or both individuals.
(4) Limitations
disregarded
on
separate
returns
If an item of deduction or credit is disallowed in
its entirety solely because a separate return is
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filed, such disallowance shall be disregarded and
the item shall be computed as if a joint return had
been filed and then allocated between the spouses
appropriately. A similar rule shall apply for
purposes of section 86.
(5) Child’s liability
If the liability of a child of a taxpayer is included
on a joint return, such liability shall be
disregarded in computing the separate liability of
either spouse and such liability shall be allocated
appropriately between the spouses.
(e) Petition for review by Tax Court
(1) In general
In the case of an individual against whom a
deficiency has been asserted and who elects to
have subsection (b) or (c) apply, or in the case of an
individual who requests equitable relief under
subsection (f)—
(A) In general
In addition to any other remedy provided by
law, the individual may petition the Tax Court
(and the Tax Court shall have jurisdiction) to
determine the appropriate relief available to
the individual under this section if such
petition is filed—
(i) at any time after the earlier of—
(I) the date the Secretary mails, by
certified or registered mail to the
taxpayer’s last known address, notice of
the Secretary’s final determination of
relief available to the individual, or
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(II) the date which is 6 months after
the date such election is filed or request
is made with the Secretary, and
(ii) not later than the close of the 90th day
after the date described in clause (i)(I).
(B) Restrictions applicable to collection of
assessment
(i) In general
Except as otherwise provided in section
6851 or 6861, no levy or proceeding in court
shall be made, begun, or prosecuted against
the individual making an election under
subsection (b) or (c) or requesting equitable
relief under subsection (f) for collection of
any assessment to which such election or
request relates until the close of the 90th
day referred to in subparagraph (A)(ii), or,
if a petition has been filed with the Tax
Court under subparagraph (A), until the
decision of the Tax Court has become final.
Rules similar to the rules of section 7485
shall apply with respect to the collection of
such assessment.
(ii) Authority
actions
to
enjoin
collection
Notwithstanding the provisions of
section 7421(a), the beginning of such levy
or proceeding during the time the
prohibition under clause (i) is in force may
be enjoined by a proceeding in the proper
court, including the Tax Court. The Tax
Court shall have no jurisdiction under this
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subparagraph to enjoin any action or
proceeding unless a timely petition has
been filed under subparagraph (A) and then
only in respect of the amount of the
assessment to which the election under
subsection (b) or (c) relates or to which the
request under subsection (f) relates.
(2) Suspension of running of period of
limitations
The running of the period of limitations in
section 6502 on the collection of the assessment to
which the petition under paragraph (1)(A) relates
shall be suspended—
(A) for the period during which the Secretary
is prohibited by paragraph (1)(B) from collecting
by levy or a proceeding in court and for 60 days
thereafter, and
(B) if a waiver under paragraph (5) is made,
from the date the claim for relief was filed until
60 days after the waiver is filed with the
Secretary.
(3) Limitation on Tax Court jurisdiction
If a suit for refund is begun by either individual
filing the joint return pursuant to section 6532—
(A) the Tax Court shall lose jurisdiction of the
individual's action under this section to
whatever extent jurisdiction is acquired by the
district court or the United States Court of
Federal Claims over the taxable years that are
the subject of the suit for refund, and
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(B) the court acquiring jurisdiction shall have
jurisdiction over the petition filed under this
subsection.
(4) Notice to other spouse
The Tax Court shall establish rules which
provide the individual filing a joint return but not
making the election under subsection (b) or (c) or
the request for equitable relief under subsection (f)
with adequate notice and an opportunity to
become a party to a proceeding under either such
subsection.
(5) Waiver
An individual who elects the application of
subsection (b) or (c) or who requests equitable
relief under subsection (f) (and who agrees with
the Secretary's determination of relief) may waive
in writing at any time the restrictions in
paragraph (1)(B) with respect to collection of the
outstanding assessment (whether or not a notice
of the Secretary's final determination of relief has
been mailed).
(6) Suspension of running of period for filing
petition in title 11 cases
In the case of a person who is prohibited by
reason of a case under title 11, United States Code,
from filing a petition under paragraph (1)(A) with
respect to a final determination of relief under this
section, the running of the period prescribed by
such paragraph for filing such a petition with
respect to such final determination shall be
suspended for the period during which the person
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is so prohibited from filing such a petition, and for
60 days thereafter.
(f) Equitable relief
Under procedures prescribed by the Secretary, if—
(1) taking into account all the facts and
circumstances, it is inequitable to hold the
individual liable for any unpaid tax or any
deficiency (or any portion of either); and
(2) relief is not available to such individual
under subsection (b) or (c),
the Secretary may relieve such individual of such
liability.
(g) Credits and refunds
(1) In general
Except as provided in paragraphs (2) and (3),
notwithstanding any other law or rule of law
(other than section 6511, 6512(b), 7121, or 7122),
credit or refund shall be allowed or made to the
extent attributable to the application of this
section.
(2) Res judicata
In the case of any election under subsection (b)
or (c) or of any request for equitable relief under
subsection (f), if a decision of a court in any prior
proceeding for the same taxable year has become
final, such decision shall be conclusive except with
respect to the qualification of the individual for
relief which was not an issue in such proceeding.
The exception contained in the preceding sentence
shall not apply if the court determines that the
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individual participated meaningfully in such prior
proceeding.
(3) Credit and refund not allowed under
subsection (c)
No credit or refund shall be allowed as a result
of an election under subsection (c).
(h) Regulations
The Secretary shall prescribe such regulations as
are necessary to carry out the provisions of this
section, including—
(1) regulations providing methods for allocation
of items other than the methods under subsection
(d)(3); and
(2) regulations providing the opportunity for an
individual to have notice of, and an opportunity to
participate in, any administrative proceeding with
respect to an election made under subsection (b) or
(c) or a request for equitable relief made under
subsection (f) by the other individual filing the
joint return.
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26 U.S.C. § 6330
§ 6330. Notice and opportunity for hearing
before levy
(a) Requirement of notice before levy
(1) In general
No levy may be made on any property or right to
property of any person unless the Secretary has
notified such person in writing of their right to a
hearing under this section before such levy is made.
Such notice shall be required only once for the
taxable period to which the unpaid tax specified in
paragraph (3)(A) relates.
(2) Time and method for notice
The notice required under paragraph (1) shall
be—
(A) given in person;
(B) left at the dwelling or usual place of
business of such person; or
(C) sent by certified or registered mail, return
receipt requested, to such person’s last known
address;
not less than 30 days before the day of the first levy
with respect to the amount of the unpaid tax for the
taxable period.
(3) Information included with notice
The notice required under paragraph (1) shall
include in simple and nontechnical terms—
(A) the amount of unpaid tax;
(B) the right of the person to request a hearing
during the 30-day period under paragraph (2);
and
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(C) the proposed action by the Secretary and
the rights of the person with respect to such
action, including a brief statement which sets
forth—
(i) the provisions of this title relating to levy
and sale of property;
(ii) the procedures applicable to the levy and
sale of property under this title;
(iii) the administrative appeals available to
the taxpayer with respect to such levy and sale
and the procedures relating to such appeals;
(iv) the alternatives available to taxpayers
which could prevent levy on property
(including installment agreements under
section 6159); and
(v) the provisions of this title and procedures
relating to redemption of property and release
of liens on property.
(b) Right to fair hearing
(1) In general
If 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
the Internal Revenue Service Office of Appeals.
(2) One hearing per period
A person shall be entitled to only one hearing
under this section with respect to the taxable
period to which the unpaid tax specified in
subsection (a)(3)(A) relates.
(3) Impartial officer
The hearing under this subsection shall be
conducted by an officer or employee who has had no
prior involvement with respect to the unpaid tax
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specified in subsection (a)(3)(A) before the first
hearing under this section or section 6320. A
taxpayer may waive the requirement of this
paragraph.
(c) Matters considered at hearing
In the case of any hearing conducted under this
section—
(1) Requirement of investigation
The appeals officer shall at the hearing obtain
verification from the Secretary that the
requirements of any applicable law or
administrative procedure have been met.
(2) Issues at hearing
(A) In general
The person may raise at the hearing any
relevant issue relating to the unpaid tax or the
proposed levy, including—
(i) appropriate spousal defenses;
(ii) challenges to the appropriateness of
collection actions; and
(iii) offers of collection alternatives, which
may include the posting of a bond, the
substitution of other assets, an installment
agreement, or an offer-in-compromise.
(B) Underlying liability
The person may also raise at the hearing
challenges to the existence or amount of the
underlying tax liability for any tax period if the
person did not receive any statutory notice of
deficiency for such tax liability or did not
otherwise have an opportunity to dispute such
tax liability.
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(3) Basis for the determination
The determination by an appeals officer under
this subsection shall take into consideration—
(A) the verification presented under paragraph
(1);
(B) the issues raised under paragraph (2); and
(C) whether any proposed collection action
balances the need for the efficient collection of
taxes with the legitimate concern of the person
that any collection action be no more intrusive
than necessary.
(4) Certain issues precluded
An issue may not be raised at the hearing if—
(A)(i) the issue was raised and considered at a
previous hearing under section 6320 or in any
other previous administrative or judicial
proceeding; and
(ii) the person seeking to raise the issue
participated meaningfully in such hearing or
proceeding;
(B) the issue meets the requirement of clause
(i) or (ii) of section 6702(b)(2)(A); or
(C) a final determination has been made with
respect to such issue in a proceeding brought
under subchapter C of chapter 63.
This paragraph shall not apply to any issue with
respect to which subsection (d)(3)(B) applies.
(d) Proceeding after hearing
(1) Petition for review by Tax Court
The person may, within 30 days of a
determination under this section, petition the Tax
Court for review of such determination (and the
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Tax Court shall have jurisdiction with respect to
such matter).
(2) Suspension of running of period for filing
petition in title 11 cases
In the case of a person who is prohibited by
reason of a case under title 11, United States Code,
from filing a petition under paragraph (1) with
respect to a determination under this section, the
running of the period prescribed by such subsection
for filing such a petition with respect to such
determination shall be suspended for the period
during which the person is so prohibited from filing
such a petition, and for 30 days thereafter.
(3) Jurisdiction retained at IRS Office of
Appeals
The Internal Revenue Service Office of Appeals
shall retain jurisdiction with respect to any
determination made under this section, including
subsequent hearings requested by the person who
requested the original hearing on issues
regarding—
(A) collection actions taken or proposed with
respect to such determination; and
(B) after the person has exhausted all
administrative
remedies,
a
change
in
circumstances with respect to such person which
affects such determination.
(e) Suspension of collections and statute of
limitations
(1) In general
Except as provided in paragraph (2), if a hearing
is requested under subsection (a)(3)(B), the levy
actions which are the subject of the requested
hearing and the running of any period of
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limitations under section 6502 (relating to
collection after assessment), section 6531 (relating
to criminal prosecutions), or section 6532 (relating
to other suits) shall be suspended for the period
during which such hearing, and appeals therein,
are pending. In no event shall any such period
expire before the 90th day after the day on which
there is a final determination in such hearing.
Notwithstanding the provisions of section 7421(a),
the beginning of a levy or proceeding during the
time the suspension under this paragraph is in
force may be enjoined by a proceeding in the proper
court, including the Tax Court. The Tax Court
shall have no jurisdiction under this paragraph to
enjoin any action or proceeding unless a timely
appeal has been filed under subsection (d)(1) and
then only in respect of the unpaid tax or proposed
levy to which the determination being appealed
relates.
(2) Levy upon appeal
Paragraph (1) shall not apply to a levy action
while an appeal is pending if the underlying tax
liability is not at issue in the appeal and the court
determines that the Secretary has shown good
cause not to suspend the levy.
(f) Exceptions
If—
(1) the Secretary has made a finding under the
last sentence of section 6331(a) that the collection
of tax is in jeopardy,
(2) the Secretary has served a levy on a State to
collect a Federal tax liability from a State tax
refund,
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(3) the Secretary has served a disqualified
employment tax levy, or
(4) the Secretary has served a Federal contractor
levy,
this section shall not apply, except that the taxpayer
shall be given the opportunity for the hearing
described in this section within a reasonable period of
time after the levy.
(g) Frivolous requests for hearing, etc.
Notwithstanding any other provision of this
section, if the Secretary determines that any portion
of a request for a hearing under this section or section
6320 meets the requirement of clause (i) or (ii) of
section 6702(b)(2)(A), then the Secretary may treat
such portion as if it were never submitted and such
portion shall not be subject to any further
administrative or judicial review.
(h) Definitions related to exceptions
For purposes of subsection (f)—
(1) Disqualified employment tax levy
A disqualified employment tax levy is any levy in
connection with the collection of employment taxes
for any taxable period if the person subject to the
levy (or any predecessor thereof) requested a
hearing under this section with respect to unpaid
employment taxes arising in the most recent 2-year
period before the beginning of the taxable period
with respect to which the levy is served. For
purposes of the preceding sentence, the term
“employment taxes” means any taxes under
chapter 21, 22, 23, or 24.
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(2) Federal contractor levy
A Federal contractor levy is any levy if the
person whose property is subject to the levy (or any
predecessor thereof) is a Federal contractor.
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26 U.S.C. § 7623
§ 7623. Expenses
of
detection
underpayments and fraud, etc.
of
(a) In general
The Secretary, under regulations prescribed by the
Secretary, is authorized to pay such sums as he deems
necessary for—
(1) detecting underpayments of tax, or
(2) detecting and bringing to trial and
punishment persons guilty of violating the internal
revenue laws or conniving at the same,
in cases where such expenses are not otherwise
provided for by law. Any amount payable under the
preceding sentence shall be paid from the proceeds of
amounts collected by reason of the information
provided, and any amount so collected shall be
available for such payments.
(b) Awards to whistleblowers
(1) In general
If the Secretary proceeds with any administrative
or judicial action described in subsection (a) based on
information brought to the Secretary’s attention by an
individual, such individual shall, subject to
paragraph (2), receive as an award at least 15 percent
but not more than 30 percent of the proceeds collected
as a result of the action (including any related actions)
or from any settlement in response to such action
(determined without regard to whether such proceeds
are available to the Secretary). The determination of
the amount of such award by the Whistleblower Office
shall depend upon the extent to which the individual
substantially contributed to such action.
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(2) Award in case of less substantial
contribution
(A) In general
In the event the action described in paragraph
(1) is one which the Whistleblower Office
determines to be based principally on disclosures
of specific allegations (other than information
provided by the individual described in
paragraph (1)) resulting from a judicial or
administrative hearing, from a governmental
report, hearing, audit, or investigation, or from
the news media, the Whistleblower Office may
award such sums as it considers appropriate, but
in no case more than 10 percent of the proceeds
collected as a result of the action (including any
related actions) or from any settlement in
response to such action (determined without
regard to whether such proceeds are available to
the Secretary), taking into account the
significance of the individual's information and
the role of such individual and any legal
representative of such individual in contributing
to such action.
(B) Nonapplication of paragraph where
individual
is
original
source
of
information
Subparagraph (A) shall not apply if the
information resulting in the initiation of the
action described in paragraph (1) was originally
provided by the individual described in
paragraph (1).
(3) Reduction in or denial of award
If the Whistleblower Office determines that the
claim for an award under paragraph (1) or (2) is
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brought by an individual who planned and initiated
the actions that led to the underpayment of tax or
actions described in subsection (a)(2), then the
Whistleblower Office may appropriately reduce
such award. If such individual is convicted of
criminal conduct arising from the role described in
the preceding sentence, the Whistleblower Office
shall deny any award.
(4) Appeal of award determination
Any determination regarding an award under
paragraph (1), (2), or (3) may, within 30 days of
such determination, be appealed to the Tax Court
(and the Tax Court shall have jurisdiction with
respect to such matter).
(5) Application of this subsection
This subsection shall apply with respect to any
action—
(A) against any taxpayer, but in the case of
any individual, only if such individual's gross
income exceeds $200,000 for any taxable year
subject to such action, and
(B) if the proceeds in dispute exceed
$2,000,000.
(6) Additional rules
(A) No contract necessary
No contract with the Internal Revenue
Service is necessary for any individual to
receive an award under this subsection.
(B) Representation
Any individual described in paragraph (1)
or (2) may be represented by counsel.
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(C) Submission of information
No award may be made under this
subsection based on information submitted to
the Secretary unless such information is
submitted under penalty of perjury.
(c) Proceeds
For purposes of this section, the term “proceeds”
includes—
(1) penalties, interest, additions to tax, and
additional amounts provided under the internal
revenue laws, and
(2) any proceeds arising from laws for which the
Internal Revenue Service is authorized to
administer, enforce, or investigate, including—
(A) criminal fines and civil forfeitures, and
(B) violations of reporting requirements.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.