Amicus Curiae Brief — Boechler, P.C., Petitioner v. Commissioner of Internal Revenue
Supreme Court briefMay 18, 2021
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No. 20-1472
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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
---------------------------------♦--------------------------------BRIEF OF THE CENTER FOR
TAXPAYER RIGHTS AS AMICUS CURIAE
IN SUPPORT OF PETITIONER
---------------------------------♦--------------------------------PROFESSOR T. KEITH FOGG
DIRECTOR, TAX CLINIC OF THE
LEGAL SERVICES CENTER OF
HARVARD LAW SCHOOL
122 Boylston Street
Jamaica Plain, Massachusetts
02130
(617) 390-2532
kfogg@law.harvard.edu
CARLTON M. SMITH, ESQ.
(Counsel of Record)
255 W. 23rd Street,
Apt. 4AW
New York, New York 10011
(646) 230-1776
carltonsmth@aol.com
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF CONTENTS ......................................
i
TABLE OF AUTHORITIES .................................
ii
INTEREST OF THE AMICUS ............................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
3
I.
II.
The Tax Court Needlessly Expends Considerable Judicial Resources Each Month
Incorrectly Policing Petition Filing Deadlines as a Jurisdictional Issue ...................
7
Equitable Tolling Would Be Highly Beneficial to Taxpayers in Typically-Recurring
Situations .................................................. 13
CONCLUSION..................................................... 24
ii
TABLE OF AUTHORITIES
Page
CASES
Atuke v. Commissioner, Tax Court Docket No.
31680-15SL (order dated Apr. 15, 2016) .................19
Bailey v. Principi, 351 F.3d 1381 (Fed. Cir. 2003) .......22
Beaupre v. Commissioner, Tax Court Docket No.
23536-18S (order dated Nov. 8, 2019) .....................11
Bull v. United States, 295 U.S. 247 (1935) .................14
Castaldo v. Commissioner, Tax Court Docket No.
19264-19 (order dated Dec. 19, 2019) .....................11
Castillo v. Commissioner, Tax Court Docket No.
18336-19L (order dated Mar. 25, 2020), on appeal Second Circuit Docket No. 20-1635 ................19
Chappell v. Commissioner, Tax Court Docket No.
20711-19 (order dated Nov. 27, 2019) .....................11
Charvat v. Commissioner, Tax Court Docket No.
377-18L (order dated Nov. 14, 2018).........................9
Croker v. Commissioner, Tax Court Docket No.
9070-18S (order dated Nov. 15, 2019) .....................11
Cunningham v. Commissioner, 716 Fed. Appx.
182 (4th Cir. 2018) ...................................................17
Davila-Cabrera v. Commissioner, Tax Court
Docket No. 19192-19 (order dated Dec. 20,
2019) ........................................................................11
Dolan v. United States, 560 U.S. 605 (2010) ..............10
Duggan v. Commissioner, 879 F.3d 1029 (9th
Cir. 2018) ......................................................... 3, 4, 17
iii
TABLE OF AUTHORITIES – Continued
Page
Dunlap v. Commissioner, Tax Court Docket No.
816-18L (order dated Mar. 15, 2018) ........................9
Edmonson v. Commissioner, Tax Court Docket
No. 1239-19SL (order dated Nov. 13, 2019) ............11
Enochs v. Williams Packing & Nav. Co., 370 U.S.
1 (1962) ....................................................................14
Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572 (7th Cir. 1999) ..................14
Garland v. Commissioner, Tax Court Docket No.
17921-19L (order dated Nov. 25, 2019)...................11
Gitman v. Commissioner, Tax Court Docket No.
5804-19 (order dated Aug. 8, 2019) .........................23
Gonzalez v. Commissioner, Tax Court Docket No.
2256-19S (order dated Nov. 15, 2019) .....................11
Golsen v. Commissioner, 54 T.C. 742 (1970),
aff ’d, 445 F.2d 985 (10th Cir. 1971) ...................... 7, 8
Guralnik v. Commissioner, 146 T.C. 230 (2016) .........15
Haitsuka v. Commissioner, Tax Court Docket
No. 14495-15L (order dated Oct. 9, 2015) ..............21
Hamer v. Neighborhood Housing Servs. of Chicago, 138 S. Ct. 13 (2017) ........................................10
Harris v. Commissioner, Tax Court Docket No.
1149-18L (order dated May 29, 2018) ......................9
Harris v. Commissioner, Tax Court Docket No.
15979-19S (order dated Dec. 17, 2019) ...................11
Henderson v. Shinseki, 562 U.S. 428 (2011) .................6
iv
TABLE OF AUTHORITIES – Continued
Page
Holland v. Florida, 560 U.S. 631 (2010) .....................16
Integrated Event Management, Inc. v. Commissioner, Tax Court Docket No. 27674-16SL (order dated May 31, 2017) .........................................18
Irwin v. Dept. of Veterans Affairs, 498 U.S. 89
(1990) .......................................................................15
Islam v. Commissioner, Tax Court Docket No.
14099-19S (order dated Feb. 28, 2020) ...................23
Jackson v. Modly, 949 F.3d 763 (D.C. Cir. 2020) ..........8
Jaquay v. Principi, 304 F.3d 1276 (Fed. Cir.
2002) ........................................................................22
Jones v. Commissioner, T.C. Memo. 2003-29 ..............16
Mannella v. Commissioner, 631 F.3d 115 (3d Cir.
2011) ............................................................ 15, 20, 21
Mansfield v. Commissioner, Tax Court Docket
No. 19342-19S (order dated Dec. 23, 2019) ............11
Matuszak v. Commissioner, 862 F.3d 192 (2d Cir.
2017) ........................................................................18
Myers v. Commissioner, 928 F.3d 1025 (D.C. Cir.
2019) .................................................................. 4, 5, 7
Nauflett v. Commissioner, 892 F.3d 649 (4th Cir.
2018) ........................................................................19
Nicholas v. Commissioner, Tax Court Docket No.
908-18L (order dated Apr. 16, 2018) .........................9
Pottgen v. Commissioner, Tax Court Docket No.
1410-15L (order dated Mar. 4, 2016) ................ 17, 18
v
TABLE OF AUTHORITIES – Continued
Page
Protter v. Commissioner, Tax Court Docket No.
22975-15SL (order dated Sep. 26, 2017) ................18
RHI Holdings, Inc. v. United States, 142 F.3d
1459 (Fed. Cir. 1998) ........................................... 6, 15
Rodriguez v. Commissioner, Tax Court Docket
No. 2098-18L (order dated May 9, 2018) ..................9
Rosenthal v. Commissioner, Tax Court Docket
No. 18392-19S (order dated Dec. 26, 2019) (order dated Jun. 29, 2020) ............................. 11, 22, 23
Rubel v. Commissioner, 856 F.3d 301 (3d Cir.
2017) ........................................................................18
Santana-Venegas v. Principi, 314 F.3d 1293 (Fed.
Cir. 2002) .................................................................22
Saporito v. Commissioner, Tax Court Docket No.
8471-17L (order dated May 31, 2017) ....................18
Sebelius v. Auburn Regional Med. Cntr., 568 U.S.
145 (2012) ................................................................13
Slavo v. Commissioner, Tax Court Docket No.
19732-19 (order dated Dec. 31, 2019) .....................11
Stephens v. Commissioner, Tax Court Docket No.
20418-19 (order dated Dec. 30, 2019) .....................11
Stone v. White, 301 U.S. 532 (1937) ............................14
Swanson v. Commissioner, Tax Court Docket No.
14406-15S (order dated Jan. 14, 2016) ...................17
Tilden v. Commissioner, 846 F.3d 882 (7th Cir.
2017), rev’g T.C. Memo. 2015-188 ...........................12
vi
TABLE OF AUTHORITIES – Continued
Page
Treas v. Commissioner, Tax Court Docket No.
12225-19S (order dated Dec. 19, 2019) ...................11
United States v. Brockamp, 519 U.S. 347
(1997) ........................................................... 13, 14, 15
United States v. Rodgers, 461 U.S. 677 (1983) ..........14
Volpicelli v. United States, 777 F.3d 1042 (9th
Cir. 2015) .................................................................14
Wagner v. United States, 353 F. Supp. 3d 1062
(E.D. Wash. 2018) ......................................................6
Walby v. United States, 957 F.3d 1295 (Fed. Cir.
2020) ..........................................................................6
Wallaesa v. Commissioner, Tax Court Docket No.
1179-17L (order dated Apr. 20, 2017) .....................18
Williams v. Commissioner, Tax Court Docket No.
24954-17 (order dated Jan. 26, 2018) .....................12
STATUTES
26 U.S.C. (I.R.C.):
§ 501(c)(3) ..................................................................1
§ 6015(e)(1)(A) ..................................................... 8, 19
§ 6213(a) ..................................................................23
§ 6320.........................................................................5
§ 6330(c)(3)(C) ...........................................................5
§ 6330(d)(1) .............................................. 2, 16, 19, 24
§ 6511(a) .............................................................. 6, 13
vii
TABLE OF AUTHORITIES – Continued
Page
§ 6532(a) .............................................................. 6, 15
§ 6532(c)...................................................................14
§ 7345(e)(1) ................................................................7
§ 7463(f )(2) ................................................................9
§ 7482(b)(1) ................................................................7
§ 7502.......................................................................12
§ 7508A ....................................................................20
§ 7623(b)(4) ............................................................ 5, 7
§ 7803(a)(3) ................................................................4
§ 7803(a)(3)(E) ...........................................................4
§ 7803(a)(3)(J) ...........................................................4
§ 7803(c)(1)(B) ...........................................................1
28 U.S.C. § 2401(a) ........................................................8
OTHER AUTHORITIES
CC-2018-005 .................................................................8
Harold Dubroff & Brant Hellwig, “The United
States Tax Court: An Historical Analysis” (2d
ed. 2014) ....................................................................8
Internal Revenue Manual § 4.8.9.25.1 (7/9/13) .........23
IRS Data Book, 2019 ................................................ 6, 7
IRS Memorandum for Director, Campus Collection and Director, Field Collection, Control No.
SBSE-05-0920-0063 (Sep. 3, 2020) .........................18
viii
TABLE OF AUTHORITIES – Continued
Page
IRS Whistleblower Award Office Fiscal Year
2020 Annual Report, IRS Pub. 5241 (rev. 122020) ..........................................................................5
National Taxpayer Advocate 2017 Annual Report to Congress ........................................................4
National Taxpayer Advocate 2020 Annual Report to Congress .................................................. 6, 18
National Taxpayer Advocate 2021 Purple Book ..........4
Notice 2011-70, 2011-2 C.B. 135 ................................21
Notice 2020-23, 2020-18 I.R.B. 742 ............................20
Supreme Court Rule 37.6 .............................................1
Tax Court Rule 13(c)................................................. 7, 8
U.S. Tax Court Congressional Budget Justification Fiscal Year 2021 (Feb. 10, 2020) ........................8
1
INTEREST OF THE AMICUS1
The Center for Taxpayer Rights (“the Center”) was
established in 2019 as a § 501(c)(3)2 non-profit corporation dedicated to furthering taxpayers’ awareness
of and access to taxpayer rights. The Center accomplishes its mission, in part, by educating the public and
government officials about the role taxpayer rights
plays in promoting compliance and trust in systems of
taxation. The Executive Director of the Center is Nina
E. Olson, who, from 2001 through 2019, served as the
Internal Revenue Service (“IRS”) National Taxpayer
Advocate, appointed under § 7803(c)(1)(B).
Counsel for the Center is the Tax Clinic of the Legal Services Center of Harvard Law School (“the
Clinic”). The Clinic represents low-income taxpayers
before the IRS and in tax matters before the courts.
The Clinic regularly represents taxpayers in deficiency, “Collection Due Process” (“CDP”), and “innocent
1
The parties have consented to the filing of this brief. The
petitioner provided written consent on April 19, 2021. The Solicitor General, on behalf of respondent, provided written consent on
April 22, 2021. Pursuant to Supreme Court Rule 37.6, this is to
affirm that no party’s counsel authored this brief in whole or in
part. No party or party’s counsel contributed money that was intended to fund preparing or submitting this brief. Aside from the
amicus, the only person contributing to the preparation or submission of this brief was Harvard University, of which the Tax
Clinic at the Legal Services Center of Harvard Law School is a
component part. Harvard University contributed the costs of
printing. All parties have been timely notified of the submission
of this brief.
2
Unless otherwise indicated, all section references are to the
Internal Revenue Code, Title 26.
2
spouse” cases in the Tax Court and in the courts of appeals and has also filed many amicus briefs on its own.
The Center’s purpose in filing this brief is to request that this Court grant the petition for a writ of
certiorari and hold that the deadline in § 6330(d)(1) in
which to file a Tax Court CDP suit is not jurisdictional
and is subject to equitable tolling. Such a nonjurisdictional ruling may be of aid to low-income taxpayers because, in that event, any noncompliance with the filing
deadline would become an affirmative defense that the
IRS could waive or would forfeit (if the IRS did not
raise the argument early enough in the litigation).
Other such taxpayers who, for equitable reasons,
missed the filing deadline might also benefit.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
The Tax Court has held that nearly all of its petition filing deadlines are jurisdictional and so not subject to equitable tolling. This Court should grant the
petition for a writ of certiorari in this case and hold
that the Tax Court’s view is incorrect – at least as to
CDP suits in the Tax Court. The Tax Court and the
Eighth Circuit have misunderstood this Court’s recent
direction not to treat filing deadlines as jurisdictional,
unless either Congress has made a clear statement to
that effect in the statute (which it has not in the case
of CDP suits) or a stare decisis exception to the current
rules applies (and none does here). The unfortunate
consequence of the Tax Court’s position, and that of the
3
Eighth and Ninth Circuits (in Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018)), is that for nearly
every petition filed in the Tax Court, Tax Court judges
have to police the issue of whether a petition was
timely filed as a jurisdictional issue. Considerable judicial resources are invested in this policing, without
any indication that Congress has ever desired this outcome.
A ruling that the CDP filing deadline is nonjurisdictional and is subject to equitable tolling would help
taxpayers in several typical, recurring cases, such as
cases where taxpayers timely file their Tax Court petition mistakenly with the IRS office that issued the notice of determination or where medical issues (COVID19 or others) prevented timely filing in the Tax Court.
---------------------------------♦---------------------------------
ARGUMENT
This brief will not repeat the legal arguments
made by the petitioner for why the Tax Court CDP suit
filing deadline is not jurisdictional. Instead, this brief
will primarily attempt to inform this Court of the practical consequences of rulings on the jurisdictional and
equitable tolling issues. In this connection, the Center
recommends that this Court read Ms. Olson’s National
Taxpayer Advocate 2017 Annual Report to Congress,
Legislative Recommendation #3 (“Make the Time Limits for Bringing Tax Litigation Subject to the Judicial
Doctrines of Forfeiture, Waiver, Estoppel, and Equitable Tolling. . . .”), Vol. 1, at 283-292 (the “2017 Report”),
4
available at www.irs.gov. Her report detailed, as of December 31, 2017, many conflicting lower court authorities concerning whether judicial tax filing deadlines
are jurisdictional. Her recommendation was prompted
by some of the adverse Circuit court rulings cited in
both the petition and this brief – rulings that, in her
view, misapplied this Court’s precedent to several Tax
Court filings deadlines and other judicial tax filing
deadlines. In her recommendation (at 287), she relied,
in part, on what is known as the “Taxpayer Bill of
Rights,” enacted in 2015, at § 7803(a)(3), which promises taxpayers “the right to appeal a decision of the Internal Revenue Service in an independent forum”
(subparagraph (E)) and “the right to a fair and just tax
system” (subparagraph (J)). She also wrote:
Treating the IRC time limits for commencing
a judicial proceeding as jurisdictional leads to
unfair outcomes. . . . Unrepresented taxpayers in particular may be less likely to anticipate the severe consequences of filing a Tax
Court petition even one day late, and most Tax
Court petitioners do not have representation.
2017 Report, at 291. Ms. Olson’s successor as National
Taxpayer Advocate has continued to seek this legislative clarification. National Taxpayer Advocate 2021
Purple Book, at 100-102 (contrasting the CDP rulings
in Duggan, supra, and this case with the D.C. Circuit’s
whistleblower award petition deadline ruling in Myers
5
v. Commissioner, 928 F.3d 1025 (D.C. Cir. 2019)),3 available at www.irs.gov.
Access to the Tax Court in CDP matters a lot – because the Tax Court is the only place where a court reviews the IRS’s proposed collection activity of levies
before the actual harm occurs4 – a vital issue for lowincome taxpayers, small businesses, etc.
Congress requires IRS Independent Office of Appeals employees in CDP to take into consideration
“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.” § 6330(c)(3)(C).
Thus, CDP is an equitable area of the Internal Revenue Code. It would be perverse to think that Congress
wanted the Tax Court CDP filing deadline in an equitable area to prohibit equitable tolling. The Tax Court’s
and Eighth Circuit’s jurisdictional holdings in this
3
For comparison, while lately there are usually about 1,200
CDP petitions filed in the Tax Court each year, there are far fewer
whistleblower award petitions filed in that court. IRS Whistleblower Award Office Fiscal Year 2020 Annual Report, IRS Pub.
5241 (rev. 12-2020) at 23, Table 3 (as of September 30, 2020, there
were 118 § 7623(b)(4) cases in litigation).
4
With respect to CDP review of notice of federal tax lien filing, CDP hearings occur after their filing; see § 6320; but it is also
very important that such filings can get judicial review, since filed
notices of tax lien can (1) cause taxpayers to lose or not obtain jobs
in certain industries and (2) undermine low-income taxpayer efforts to obtain rental housing. Credit reports always list the existence of such filed notices.
6
case undermine the congressional intent to expand
taxpayer protections, not limit them.
Whether the Article I Tax Court’s CDP filing deadline is jurisdictional or subject to equitable tolling are
questions of at least equal importance to the issue this
Court addressed in Henderson v. Shinseki, 562 U.S. 428
(2011) (filing deadline for the Article I Court of Appeals
for Veterans Claims held nonjurisdictional).
Further, these questions for the CDP deadline impact far more taxpayers than the also-currently-disputed questions of whether the tax refund deadlines
for administrative claims (at § 6511(a)) and suits (at
§ 6532(a)) are jurisdictional.5 In the 12-month period
ended May 31, 2020, there were 1,185 CDP petitions
filed in the Tax Court. National Taxpayer Advocate
2020 Annual Report to Congress at 185. By contrast,
in the fiscal year ended September 30, 2019, there were
219 refund suit petitions filed in the district courts and
the Court of Federal Claims combined. IRS Data Book,
2019 at 68 (Table 29).
5
Compare RHI Holdings, Inc. v. United States, 142 F.3d
1459 (Fed. Cir. 1998) ( judicial filing deadline at § 6532(a) is jurisdictional and not subject to estoppel or equitable tolling), with
Wagner v. United States, 353 F. Supp. 3d 1062 (E.D. Wash. 2018)
(§ 6532(a) deadline is not jurisdictional and is subject to equitable
tolling under recent opinions of this Court). See also Walby v.
United States, 957 F.3d 1295, 1299-1300 (Fed. Cir. 2020) (questioning the continuing validity of the Federal Circuit’s precedent
holding the § 6511(a) deadline to file an administrative refund
claim with the IRS jurisdictional in light of recent opinions of this
Court).
7
I.
The Tax Court Needlessly Expends Considerable Judicial Resources Each Month Incorrectly Policing Petition Filing Deadlines
as a Jurisdictional Issue.
Each year, a small, but significant, number of taxpayers would be affected by a ruling that the Tax
Court’s CDP jurisdiction filing deadline is not jurisdictional (whether or not the filing deadline is also subject
to equitable tolling).
In the fiscal year ended September 30, 2019, taxpayers filed 24,658 Tax Court petitions. IRS Data Book,
2019 at 68 (Table 29), available at www.irs.gov. These
petitions were under about 20 different jurisdictions of
the Tax Court.
Tax Court Rule 13(c) states: “In all cases, the jurisdiction of the Court also depends on the timely filing of
a petition.”6
6
Parenthetically, the D.C. Circuit, which, under § 7482(b)(1)
(flush language), hears all appeals of Tax Court whistleblower
award actions under § 7623(b)(4), has overruled the Tax Court
and held that the filing deadline for such an action is not jurisdictional and is subject to equitable tolling under this Court’s recent
authority. Myers v. Commissioner, supra. Under its opinion in
Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff ’d on other
issues, 445 F.2d 985 (10th Cir. 1971), the Tax Court follows the
precedent of the Circuit to which a case is appealable, even if the
Tax Court disagrees with that precedent. Also, Congress, at
§ 7345(e)(1), recently gave the Tax Court jurisdiction to review
the IRS’ certification to the Department of State that an individual taxpayer has “seriously delinquent tax debt,” which triggers
passport revocation. Passport actions brought by taxpayers are
similarly all appealable from the Tax Court only to the D.C. Circuit. § 7482(b)(1) (flush language). The passport action statute
8
Three jurisdictions of the Tax Court comprise the
vast bulk of its petitions (deficiency, CDP, and innocent
spouse), and it has long been the case that deficiency
petitions make up the overwhelming majority of all petitions filed. However, CDP actions are the secondmost filed in the Tax Court. Harold Dubroff & Brant
Hellwig, “The United States Tax Court: An Historical
Analysis” (2d ed. 2014) at 909 (Appendix B) (for 2013,
taxpayers filed 30,046 deficiency actions, 1,486 CDP
actions, and 342 “innocent spouse” actions under
§ 6015(e)(1)(A)). The Dubroff & Hellwig book is the
semi-official history of the Tax Court, available at a
link on the “History” page of the court’s website. “Over
75 percent of the petitioners who file with the Court
are self-represented (pro se).” U.S. Tax Court Congressional Budget Justification Fiscal Year 2021 (Feb. 10,
2020) at 22.
Because the Tax Court does not publish statistics
breaking down filings under each of its jurisdictions,
does not set a filing deadline, so the IRS has opined – no doubt
correctly – that the applicable statute of limitations is the catchall
6-year statute of limitations at 28 U.S.C. § 2401(a). CC-2018-005.
In light of this Court’s recent precedent on what is jurisdictional,
the D.C. Circuit has recently overruled its prior precedent and
now holds that § 2401(a)’s filing deadline is not jurisdictional and
is subject to equitable tolling. Jackson v. Modly, 949 F.3d 763
(D.C. Cir. 2020). Thus, despite Rule 13(c), application of the Golsen rule to these two the Tax Court actions requires the result
that the Tax Court’s filing deadlines in those actions are not jurisdictional and are subject to equitable tolling. (Because of the
essential identity of the statutory language in whistleblower and
CDP cases, the deadline for those CDP cases filed by taxpayers
living in the District of Columbia will also not be jurisdictional
and will be subject to equitable tolling.)
9
and because that court also does not separately identify in statistics cases dismissed for lack of jurisdiction,
in order to get a sense of how many cases in the court
each year might be affected by a ruling on whether the
CDP petition filing deadline is jurisdictional, the Center reviewed, using the Tax Court’s DAWSON online
system (available on the Tax Court’s website), all Tax
Court petitions filed in January 2018 – a month chosen
simply to allow likely enough time for jurisdictional issues to have been raised and disposed of in all cases.
The 2,155 dockets reviewed were numbers 101-18 (the
first of the year) through 2255-18. Of those, 101 dockets comprised CDP actions, identifiable by an “L” (for
lien or levy action) or “SL” (for lien or levy action under
the small tax case procedures at § 7463(f )(2)) added by
the Tax Court to the end of the docket number. Of the
101 CDP dockets, five were dismissed for lack of jurisdiction (or had a tax year within several years dismissed for lack of jurisdiction) on the ground that the
petition was untimely filed. In only one of those five
dockets was there a suggestion of facts which might
give rise to equitable tolling. In Dunlap v. Commissioner, Docket No. 816-18L (order dated Mar. 15, 2018),
the taxpayer’s cited excuse for missing the short 30day deadline for one taxable year was “severe family
illness.”7
7
The other four dockets were Charvat v. Commissioner,
Docket No. 377-18L (order dated Nov. 14, 2018); Nicholas v. Commissioner, Docket No. 908-18L (order dated Apr. 16, 2018); Harris
v. Commissioner, Docket No. 1149-18L (order dated May 29,
2018); and Rodriguez v. Commissioner, Docket No. 2098-18L (order dated May 9, 2018).
10
Thus, floodgates would not open if equitable tolling were allowed to excuse the late filing of a modest
number of CDP petitions each year.
Probably, the greater practical effect of a ruling
that the Tax Court’s CDP suit filing deadline is not jurisdictional would not be the ability to raise equitable
tolling, but would be to benefit taxpayers where the
IRS attorneys in the case either had omitted to notice
the possible late filing of a petition or had deliberately
decided not to argue that a petition was late and so
forfeited or sought to waive the late filing argument.
As this Court has noted, “[t]he expiration of a ‘jurisdictional’ deadline prevents the court from permitting or
taking the action to which the statute attached the
deadline. The prohibition is absolute. The parties cannot waive it, nor can a court extend that deadline for
equitable reasons.” Dolan v. United States, 560 U.S.
605, 610 (2010) (citation omitted). In contrast, if a filing
deadline is not jurisdictional, it is subject to forfeiture
and waiver (whether or not it is subject to equitable
tolling or estoppel). Hamer v. Neighborhood Housing
Servs. of Chicago, 138 S. Ct. 13, 17 (2017).
Every month, the Tax Court dismisses multiple
cases only because the court’s filing deadlines are currently treated as jurisdictional and so the Tax Court
judges, sua sponte, police late filing. The court’s position that filing deadlines are jurisdictional necessitates that judges examine the files in every case for
late filing – the judges not being able merely to rely on
the IRS to raise all late filing issues. When a judge suspects that a petition in a particular case was filed late,
11
but the IRS attorneys have made no argument to that
effect, the judge issues an order to show cause why the
case should not be dismissed for lack of jurisdiction. In
November and December 2019 (typical recent preCOVID-19 months), the Tax Court issued orders to
show cause potentially to dismiss petitions for untimely filing six and eight times, respectively.8 All 14
such taxpayers – two of whom were CDP petitioners
and 12 of whom were deficiency petitioners – lost or
almost lost their chance to have their deficiency or
CDP cases litigated in the Tax Court only because the
judges treated the filing deadlines as jurisdictional. If,
as the Center believes, the filing deadlines for Tax
Court actions are not jurisdictional, judges have been
investing considerable resources over the years engaging in needless policing.
Judges also police jurisdiction when a case settles.
About once a month, some taxpayer and the IRS settle
8
See orders in Beaupre v. Commissioner, Docket No. 2353618S (dated Nov. 8, 2019); Edmonson v. Commissioner, Docket No.
1239-19SL (dated Nov. 13, 2019); Croker v. Commissioner, Docket
No. 9070-18S (dated Nov. 15, 2019); Gonzalez v. Commissioner,
Docket No. 2256-19S (dated Nov. 15, 2019); Garland v. Commissioner, Docket No. 17921-19L (dated Nov. 25, 2019); Chappell v.
Commissioner, Docket No. 20711-19 (dated Nov. 27, 2019); Harris
v. Commissioner, Docket No. 15979-19S (dated Dec. 17, 2019);
Castaldo v. Commissioner, Docket No. 19264-19 (dated Dec. 19,
2019); Treas v. Commissioner, Docket No. 12225-19S (dated Dec.
19, 2019); Davila-Cabrera v. Commissioner, Docket No. 19192-19
(dated Dec. 20, 2019); Mansfield v. Commissioner, Docket No.
19342-19S (dated Dec. 23, 2019); Rosenthal v. Commissioner,
Docket No. 18392-19S (dated Dec. 26, 2019); Stephens v. Commissioner, Docket No. 20418-19 (dated Dec. 30, 2019); and Slavo v.
Commissioner, Docket No. 19732-19 (dated Dec. 31, 2019).
12
a case on the merits and submit to the Tax Court a proposed stipulated decision, but the Tax Court judge refuses to sign the decision until the parties show cause
why the case should not instead be dismissed for lack
of jurisdiction on account of a late filing of the petition
that the IRS had not noticed. (The decision in the Tax
Court is analogous to the judgment in a district court
suit.) An example of a show cause order issued in this
situation is that in Williams v. Commissioner, Docket
No. 24954-17 (dated Jan. 26, 2018) (a deficiency action).
A further example of overuse of judicial resources
is where the IRS agrees with the taxpayer that a petition was timely filed, but the Tax Court takes the time
to disagree. For example, in Tilden v. Commissioner,
846 F.3d 882 (7th Cir. 2017), rev’g T.C. Memo. 2015-188,
the parties initially disputed whether a deficiency petition had been timely filed under the rules of § 7502.
Section 7502 provides a timely-mailing-is-timely-filing
rule applicable to Tax Court petitions. The initial dispute concerned which regulatory provision applied to
the case. By the time the Tax Court wrote its opinion,
though, the parties agreed that the petition was timely
filed. However, the Tax Court disagreed and dismissed
the petition for lack of jurisdiction as untimely. In the
Seventh Circuit, both parties again argued that the filing was timely. Ultimately, the Seventh Circuit agreed
with the parties about the applicable regulation and
disagreed with the Tax Court.
In sum, too much judicial time is being needlessly
spent in policing late filing only because of the lower
13
courts’ misunderstanding of how this Court’s presumption that filing deadlines are no longer jurisdictional
applies to Tax Court filing deadlines.
II.
Equitable Tolling Would Be Highly Beneficial to Taxpayers in Typically-Recurring
Situations.
In this case, because the Tax Court would not accept the argument that the CDP filing deadline could
be equitably tolled, the taxpayer was not given an opportunity to present facts demonstrating that tolling
would be warranted. Presumably, if this Court reverses, the Tax Court will allow for that factual development on remand.
However, given the fact that the parties briefed
the issue below, it would be a shame for this Court in
this case not to also at this time consider whether the
CDP petition filing deadline is potentially subject to
equitable tolling. Whether the deadline is subject to equitable tolling is a distinctly separate question from
whether it is jurisdictional. Sebelius v. Auburn Regional Med. Cntr., 568 U.S. 145 (2012) (holding a deadline not jurisdictional, but not subject to equitable
tolling).
In United States v. Brockamp, 519 U.S. 347 (1997),
this Court held that the § 6511(a) administrative refund claim filing deadline is not subject to equitable
tolling. That opinion does not discuss whether the filing deadline is jurisdictional (presumably, assuming
the filing deadline nonjurisdictional). Noting that the
14
case involved tax collection, Brockamp laid out various
specific reasons for why the particular deadline was
not subject to equitable tolling, but also stated, humorously (and actually, erroneously),9 “Tax law, after all, is
not normally characterized by case-specific exceptions
reflecting individualized equities.” Id. at 352.
Since Brockamp, the government usually argues
that there can be no equitable tolling anywhere in the
Tax Code, especially in tax collection.10 Two appellate
courts have rejected this argument (one in dicta). Volpicelli v. United States, 777 F.3d 1042, 1046 (9th Cir.
2015) (wrongful levy suit filing deadline at § 6532(c) is
subject to equitable tolling; “The Court may in time decide that Congress did not intend equitable tolling to
be available with respect to any tax-related statute of
limitations. But that’s not what the Court held in
Brockamp.”); Flight Attendants Against UAL Offset v.
Commissioner, 165 F.3d 572, 577 (7th Cir. 1999) (Posner, J.; dicta rejecting the argument that Brockamp
9
Long before Congress added CDP to the Tax Code in the
year after Brockamp, this Court had applied equity in tax collection a number of times. See, e.g., United States v. Rodgers, 461
U.S. 677 (1983) (equity applies in tax foreclosure suit); Enochs v.
Williams Packing & Nav. Co., 370 U.S. 1 (1962) (equity exception
to tax anti-injunction act); Stone v. White, 301 U.S. 532 (1937)
(equitable recoupment); Bull v. United States, 295 U.S. 247 (1935)
(same).
10
In its brief to the Eighth Circuit in this case, the government (at pp. 42-43) wrote that the quoted sentence from
Brockamp “is especially true in the area of tax collection in general and administrative levies in particular, where the need for
promptness is paramount.”
15
extends to prohibit equitable tolling throughout the
Tax Code).
However, some lower courts have conflated the
questions of jurisdiction and equitable tolling and cited
Brockamp in support of holdings that tax filing deadlines are jurisdictional. See, e.g., RHI Holdings, Inc. v.
United States, 142 F.3d 1459 (Fed. Cir. 1998) (holding
the refund suit filing deadline at § 6532(a) jurisdictional and quoting the sentence from Brockamp);
Guralnik v. Commissioner, 146 T.C. 230, 236 (2016)
(holding the CDP petition filing deadline jurisdictional, in part, because of Brockamp; “The Supreme
Court’s rulings in the tax context indicate that filing
periods of the sort involved here are jurisdictional.”).
There are typical, recurring fact patterns where
equitable tolling might be of benefit to Tax Court petitioners.
There are three common grounds for equitable
tolling:
There may be equitable tolling (1) where the
defendant has actively misled the plaintiff respecting the plaintiff ’s cause of action; (2)
where the plaintiff in some extraordinary way
has been prevented from asserting his or her
rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the
wrong forum.
Mannella v. Commissioner, 631 F.3d 115, 125 (3d Cir.
2011) (cleaned up). Accord Irwin v. Dept. of Veterans
Affairs, 498 U.S. 89, 96 (1990) (“We have allowed
16
equitable tolling in situations where the claimant has
actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the
complainant has been induced or tricked by his adversary’s misconduct into allowing the filing deadline to
pass.”) (footnote omitted); Holland v. Florida, 560 U.S.
631, 649 (2010) (“a petitioner is entitled to equitable
tolling only if he shows (1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing”) (cleaned up; citation omitted).
Actively Misled
The IRS occasionally makes mistakes, and those
mistakes can actively mislead taxpayers into filing a
Tax Court petition on the wrong date.
In the CDP context, § 6330(d)(1) 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).” (Emphasis added.)
For some time after the 1998 enactment of CDP, the
IRS notice of determination (the “ticket to the Tax
Court”) closely tracked the statutory language, stating:
“If you want to dispute this determination in court, you
must file a petition with the United States Tax Court
for a redetermination within 30 days from the date
of this letter.” See Jones v. Commissioner, T.C. Memo.
2003-29 at *3 (language from notice issued in 2001;
emphasis added). But, then, sometime later, the IRS
17
redrafted the model notice of determination to read: “If
you want to dispute this determination in court, you
must file a petition with the United States Tax Court
within a 30-day period beginning the day after the date
of this letter.” (Emphasis added). That is not the statutory language. In fact, it confused at least eight pro se
taxpayers into thinking that they had 31 days from the
date of the notice to mail a petition to the Tax Court.
When each mailed a petition on the 31st day, the Tax
Court dismissed their petition for lack of jurisdiction
for being mailed one day late, despite the taxpayers’
arguments that the notice of determination language
actively misled them. Two of the taxpayers appealed.
In Duggan v. Commissioner, 879 F.3d 1029 (9th
Cir. 2018), the Ninth Circuit did not reach the issue of
whether these facts would justify equitable tolling, but
held that the filing deadline is jurisdictional, so no equitable tolling could ever be allowed.
In Cunningham v. Commissioner, 716 Fed. Appx.
182 (4th Cir. 2018), the Fourth Circuit found these
facts would not justify equitable tolling in any event
and therefore declined to decide the question whether
the filing deadline is jurisdictional.
The other six taxpayers who were also confused by
this CDP notice of determination language and dismissed by the Tax Court were: Swanson v. Commissioner, Tax Court Docket No. 14406-15S (order dated
Jan. 14, 2016);11 Pottgen v. Commissioner, Tax Court
11
The order in Swanson does not mention the argument
that the taxpayer was misled by the notice language, but an
18
Docket No. 1410-15L (order dated Mar. 4, 2016); Wallaesa v. Commissioner, Tax Court Docket No. 1179-17L
(order dated Apr. 20, 2017); Saporito v. Commissioner,
Tax Court Docket No. 8471-17L (order dated May 31,
2017); Integrated Event Management, Inc. v. Commissioner, Tax Court Docket No. 27674-16SL (order dated
May 31, 2017); Protter v. Commissioner, Tax Court
Docket No. 22975-15SL (order dated Sep. 26, 2017).
Further, because of COVID-19 interruptions to
IRS operations, the IRS belatedly sent out millions of
notices without changing dates thereon. See National
Taxpayer Advocate 2020 Annual Report to Congress at
p. v (“Millions of taxpayers received late notices bearing dates that had passed and, in many cases, response
deadlines that also had passed.”) These included notices giving taxpayers the right to request a CDP hearing. See IRS Memorandum for Director, Campus
Collection and Director, Field Collection, Control No.
SBSE-05-0920-0063 (Sep. 3, 2020). While it is not clear
that any of these misdated notices were CDP notices of
determination, doubtless, this has and will continue to
cause considerable taxpayer confusion.
The cases of Rubel v. Commissioner, 856 F.3d 301
(3d Cir. 2017) (IRS, in written correspondence, told the
taxpayer the wrong last date to file the petition);
Matuszak v. Commissioner, 862 F.3d 192 (2d Cir. 2017)
(IRS employee orally gave the unrepresented taxpayer
examination of the notice contained in the Tax Court’s files shows
that Mr. Swanson, in explanation of his late filing, quadrupleunderlined the words “day after” in the notice of determination
sentence.
19
the wrong last date to file the petition); and Nauflett v.
Commissioner, 892 F.3d 649 (4th Cir. 2018) (IRS Taxpayer Advocate Service employee orally gave the unrepresented taxpayer the wrong last date to file the
petition), provide examples, in the innocent spouse
context, of situations in which equitable tolling based
on actively misleading the petitioner possibly would
have been granted, but was not because the courts determined that the Tax Court innocent spouse petition
filing deadline at § 6015(e)(1)(A) is jurisdictional.
Extraordinary Circumstances
Two Tax Court CDP cases with differing fact patterns demonstrate the difficulty taxpayers experience
when they do not timely receive mail from the IRS,
even when the IRS sends such mail to their last known
address. See Atuke v. Commissioner, Tax Court Docket
No. 31680-15SL (order dated Apr. 15, 2016) (notice of
determination under § 6330(d)(1) mailed to taxpayer
in Nairobi, Kenya did not arrive until after the time
for petitioning the Tax Court – case dismissed for lack
of jurisdiction due to untimely petition); Castillo v.
Commissioner, Tax Court Docket No. 18336-19L (order
dated Mar. 25, 2020), appeal pending at Second Circuit
Docket No. 20-1635 (notice of determination mailed
by IRS to taxpayer’s last known address but lost and
never delivered by post office – case dismissed for lack
of jurisdiction due to untimely petition; Second Circuit
oral argument not yet scheduled). These cases also present circumstances beyond the taxpayers’ control.
20
Further, consider the issue of serious illness during the 30-day CDP filing period that might prevent
timely filing. Under § 7508A, the IRS granted a
COVID-19 extension to file a Tax Court petition because of a Presidentially-declared disaster, but only
from April 1, 2020 to July 15, 2020. Notice 2020-23,
2020-18 I.R.B. 742, § III.C. No further extension is anticipated, yet the pandemic continued and got worse.
What if the IRS had mailed a CDP notice of determination to the taxpayer on January 4, 2021, but at the
time of the mailing, the taxpayer was in the hospital,
intubated and in a coma as a result of COVID-19? Assume that the coma lasted until February 15, 2021,
such that by the time the taxpayer awoke from the
coma, the time to file a Tax Court petition had expired.
Clearly, this would have been a circumstance beyond
the taxpayer’s control that prevented timely filing. Absent this Court’s holding that the Tax Court CDP petition filing deadline is not jurisdictional and is subject
to equitable tolling, the taxpayer would have lost her
pre-payment judicial contest rights. Such a holding
would only compound the pandemic’s tragedies.
Mannella v. Commissioner, supra, provides an example of an extraordinary circumstance preventing
the taxpayer from timely filing a request for innocent
spouse relief, which is a predicate to filing a Tax Court
innocent spouse petition. Mrs. Mannello’s husband hid
from her the IRS mail coming into the house, which
prevented her from an awareness of an outstanding
joint IRS debt. Under the innocent spouse regulation
in place at the time of the Mannella case, her failure to
21
act within two years of an IRS collection notice about
which she knew nothing prevented her from moving
forward with her case. Although Mannella is not itself
an equitable tolling case involving the filing of a Tax
Court petition, after upholding the validity of the regulation’s two-year deadline, the Third Circuit had remanded the case to the Tax Court to see if the two-year
period was subject to equitable tolling.12 Mannella provides an example of someone prevented by extraordinary circumstances from taking an act to protect her
interest.
Timely Filing in Wrong Forum
A common fact pattern is that of a taxpayer timely
mailing his or her Tax Court petition mistakenly to the
IRS office that issued the “ticket to the Tax Court.”
In Haitsuka v. Commissioner, Tax Court Docket
No. 14495-15L (order dated Oct. 9, 2015), a taxpayer
who possessed limited English proficiency timely
mailed his Tax Court CDP petition mistakenly to the
IRS. After the IRS sent the petition back to him, he remailed it, this time, to the Tax Court. Arguably, if the
CDP filing deadline is subject to equitable tolling, the
filing should have been treated as timely under the equitable tolling ground of timely filing in the wrong
12
While the IRS persuaded the Third Circuit to uphold the
regulation’s validity, the IRS later abandoned enforcing the regulation; Notice 2011-70, 2011-2 C.B. 135; and the taxpayer eventually obtained full innocent spouse relief without the Tax Court
deciding whether equitable tolling could apply on the facts of the
case.
22
forum. See cases involving the Court of Appeals for Veterans Claims allowing equitable tolling under similar
circumstances. Bailey v. Principi, 351 F.3d 1381, 1382
(Fed. Cir. 2003); Santana-Venegas v. Principi, 314 F.3d
1293, 1298 (Fed. Cir. 2002); Jaquay v. Principi, 304 F.3d
1276, 1289 (Fed. Cir. 2002). But, his case was dismissed
for lack of jurisdiction for late filing.
This situation also happens (seemingly about once
a month) in deficiency cases.
In Rosenthal v. Commissioner, Tax Court Docket
No. 18392-19S (order to show cause dated Dec. 26,
2019), the taxpayers had erroneously mailed their deficiency petition to the IRS Laguna Nigel Office that
had issued the notice, and that office had, weeks later,
forwarded the petition to the Tax Court, where it arrived after the 90-day period to file had expired. The
Clinic entered an appearance for the taxpayers in that
case and found that the petition bore an IRS “received”
stamp showing a date well before the expiration of the
90 days. The Clinic initially argued that the filing
should be treated as timely under the equitable tolling
ground of timely filing in the wrong forum, citing the
above-cited cases involving the Court of Appeals for
Veterans Claims that allowed equitable tolling under
similar circumstances. The Clinic later withdrew its
argument when the IRS issued a replacement notice of
deficiency so that the taxpayers could timely file a new
petition. The Tax Court dismissed the initial petition
for lack of jurisdiction as untimely. See order of dismissal dated Jun. 29, 2020.
23
Nearly identical fact patterns played out in two
other deficiency cases filed with the Tax Court shortly
before the Rosenthal case: Islam v. Commissioner, Tax
Court Docket No. 14099-19S (order dated Feb. 28,
2020) (dismissing petition as untimely after it was
timely mailed to IRS, but not received by Tax Court
within the 90-day period of § 6213(a)); Gitman v. Commissioner, Tax Court Docket No. 5804-19 (order dated
Aug. 8, 2019) (dismissing petition as untimely after it
was timely mailed to Tax Court’s New York City courtroom instead of the Clerk in Washington, D.C. and did
not get to Clerk’s Office within the 90-day period of
§ 6213(a)).
Indeed, the Rosenthal fact pattern arises with
sufficient frequency that the IRS has issued Internal
Revenue Manual § 4.8.9.25.1 (7/9/13) to guide its employees to forward petitions to the Tax Court that were
originally erroneously sent to the IRS. The Rosenthal
case provides an example of a situation in which an
IRS employee purported to follow the Manual provision, but only after waiting for weeks after receipt of
the petition – causing the petition to arrive late at the
Tax Court.
In sum, the purported jurisdictional nature of the
CDP filing deadline (which would bar equitable tolling)
with fair regularity will preclude a significant number
of Tax Court petitioners from having their cases heard,
pre-payment in the Tax Court.
---------------------------------♦---------------------------------
24
CONCLUSION
For the reasons stated above, this Court should
grant the petition for a writ of certiorari in this case
and hold that the filing deadline in § 6330(d)(1) is not
jurisdictional and is subject to equitable tolling.
Respectfully submitted,
PROFESSOR T. KEITH FOGG
DIRECTOR, TAX CLINIC OF THE
LEGAL SERVICES CENTER OF
HARVARD LAW SCHOOL
122 Boylston Street
Jamaica Plain, Massachusetts
02130
(617) 390-2532
kfogg@law.harvard.edu
May 2021
CARLTON M. SMITH, ESQ.
(Counsel of Record)
255 W. 23rd Street,
Apt. 4AW
New York, New York 10011
(646) 230-1776
carltonsmth@aol.com
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.