Amicus Curiae Brief — Boechler, P.C., Petitioner v. Commissioner of Internal Revenue

No. 20-1472

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 FEDERAL TAX CLINIC AT

CHARLES WIDGER SCHOOL OF LAW AND

THE SETON HALL CENTER FOR SOCIAL

JUSTICE IMPACT LITIGATION CLINIC AS

AMICI CURIAE IN SUPPORT OF PETITIONER

Sam Auld

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

One Manhattan West

New York, NY 10001

Shay Dvoretzky

Counsel of Record

Emily J. Kennedy

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

(202) 371-7370

shay.dvoretzky@skadden.com

Counsel for Amici Curiae

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 § 6330(d)(1) is a

jurisdictional requirement or a claim-processing rule

subject to equitable tolling.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...........................................i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ................................................................ 2

ARGUMENT ................................................................ 3

I. The Decision Below Undermines

Congressional Intent By Treating

§ 6330(d)(1) As A Jurisdictional

Requirement ........................................................... 3

II. Treating § 6330(d)(1) As Jurisdictional

Disproportionately Harms Low-Income

Taxpayers ............................................................... 8

CONCLUSION .......................................................... 14

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Boechler, P.C. v. Commissioner,

967 F.3d 760 (8th Cir. 2020) ................................ 8

Cunningham v. Commissioner,

716 F. App’x 182 (4th Cir. 2018) ........................ 11

Duggan v. Commissioner,

879 F.3d 1029 (9th Cir. 2018) .......................10, 11

Giamelli v. Commissioner,

129 T.C. 107 (2007) .............................................. 5

Guralnik v. Commissioner,

146 T.C. 230 (2016) .......................................... 6, 7

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011) .......................................... 6, 8

Lunsford v. Commissioner,

117 T.C. 183 (2001) .............................................. 6

Matuszak v. Commissioner,

862 F.3d 192 (2d Cir. 2017)...........................11, 12

McNeil v. Wisconsin,

501 U.S. 171 (1991) .............................................. 5

Rubel v. Commissioner,

856 F.3d 301 (3d Cir. 2017)................................ 12

Tilden v. Commissioner,

846 F.3d 882 (7th Cir. 2017) ................................ 7

STATUTES

26 U.S.C. § 6320 ........................................................ 5

26 U.S.C. § 6330 ............................................... passim

iv

Taxpayer First Act, Pub. L. No. 116-25,

133 Stat. 981 (2019) ............................................. 5

OTHER AUTHORITIES

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) .......................... 5, 6

Carlton M. Smith & T. Keith Fogg, Tax

Court Collection Due Process Cases

Take Too Long, 130 Tax Notes (TA)

403 (Jan. 24, 2011) ............................................... 9

Harold Dubroff & Brant J. Hellwig, The

United States Tax Court: An

Historical Analysis (2d ed. 2014) ......................... 5

IRS Restructuring: Hearings Before the

S. Comm. on Finance, 105th Cong., S.

Hrg. 105-529 (1998).............................................. 4

Leslie Book, The Collection Due Process

Rights: A Misstep or a Step in the

Right Direction?, 41 Hous. L. Rev.

1145 (2004) ........................................................... 8

National Taxpayer Advocate, 2021

Purple Book (Dec. 31, 2020) ................................. 9

National Taxpayer Advocate, Annual

Report to Congress 2020

(Dec. 31, 2020) ...................................................... 9

v

National Taxpayer Advocate, Annual

Report to Congress 2018

(Feb. 12, 2019) .................................................... 10

National Taxpayer Advocate, FY 2002

Annual Report to Congress

(Dec. 31, 2002) ...................................................... 9

Pippa Browde, A Reflection on Tax

Collecting: Opening a Can of Worms

to Clean Up a Collection Due Process

Jurisdictional Mess, 65 Drake L. Rev.

51 (2017) ........................................................... 3, 5

Practices and Procedures of the Internal

Revenue Service: Hearings Before the

S. Comm. on Finance, 105th Cong., S.

Hrg. 105-190 (1997).......................................... 4, 8

Villanova Federal Tax Clinic, Comment

Letter on Proposed Rule on

Procedures for Asylum Withholding

of Removal; Credible Fear and

Reasonable Fear Review (EOIR

Docket No. 18-0002), (July 15, 2020),

https://ssrn.com/abstract=3834701.................... 10

INTEREST OF AMICI CURIAE1

The Federal Tax Clinic at Villanova University’s

Charles Widger School of Law represents low-income

taxpayers in controversies before the Internal

Revenue Service (“IRS”), the United States Tax Court,

and the federal courts of appeal, with the goal of

maximizing financial well-being and protecting the

rights of low-income taxpayers. To that end, the

Villanova clinic frequently files petitions in the Tax

Court on behalf of low-income taxpayers seeking to

obtain review of notices of determination. The

Villanova clinic also frequently consults with lowincome taxpayers who have attempted to navigate

the process on their own. As a participant in the Tax

Court’s Clinical Program, the Villanova clinic assists

individuals who appear at Tax Court trial sessions

without representation, and the clinic’s contact

information is provided by the Court to selfrepresented litigants, who often contact the Villanova

clinic for advice or representation.

The Seton Hall Center for Social Justice Impact

Litigation Clinic represents indigent individuals in

federal appellate litigation and other important cases

affecting legal reform. It regularly provides

assistance to low-income taxpayers through the

Volunteer Income Tax Assistance program. The

Seton Hall clinic also files amicus briefs in cases that

impact issues of concern to indigent clients.

1 No

counsel for a party authored this brief in whole or in

part. No person other than amici or their counsel made a

monetary contribution to this brief’s preparation or submission.

Both parties were timely notified more than 10 days in advance

of the intent to file this brief and have consented to its filing.

2

Amici have a substantial interest in the

resolution of the Question Presented because lowincome taxpayers are disproportionately burdened

when courts treat 26 U.S.C. § 6330(d)(1)’s 30-day

deadline for filing a petition as jurisdictional. Lowincome taxpayers typically are more likely to be

audited and more likely to petition the United States

Tax Court than other taxpayers. They also face

challenges navigating the tax code and IRS

procedures without the aid of counsel, and their

petitions are not infrequently dismissed for lack of

jurisdiction. Treating § 6330(d) as jurisdictional often

deprives these taxpayers of their only opportunity for

judicial review before the IRS seizes their property—

sometimes for taxes they do not even owe.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This Court should grant review to resolve

uncertainty about an important and recurring

question that affects taxpayers nationwide. As the

Petition explains, the circuits are split 2-1 about

whether 26 U.S.C. § 6330(d)(1)’s 30-day filing

deadline is a jurisdictional requirement or a claimprocessing rule. In the decision below, the Eighth

Circuit joined the wrong side of the split. The

Petition thoroughly explains that the Eighth and

Ninth Circuits’ holdings depart from the text of

§ 6330(d)(1) and this Court’s precedents. Amici write

separately to emphasize that those decisions also

thwart Congress’s intent in enacting § 6330(d)(1).

In overhauling the tax code in 1998, Congress

provided the Tax Court with jurisdiction under

§ 6330 to review IRS Notices of Determination. That

critical reform enables taxpayers to exercise

3

adversarial rights before the IRS seizes their

property. Congress determined that such review was

necessary because the IRS often seized property for

taxes that were not in fact owed, and taxpayers had

no prepayment recourse.

Treating § 6330(d)(1) as jurisdictional will, in

many cases, eliminate this important check on the

IRS’s authority, frequently to the disproportionate

detriment of low-income taxpayers. Low-income

taxpayers often must navigate complex IRS rules

alone and may not know when or where to file their

petition. Interpreting § 6330(d)(1) as a jurisdictional

requirement will deprive these taxpayers of their

only chance to have the Tax Court review the IRS’s

determination before seizing their property. It is

unfair—and contrary to Congress’s intent—to allow

the IRS to use § 6330(d)(1) to shield erroneous tax

assessments from review by the Tax Court.

ARGUMENT

I.

The

Decision

Below

Undermines

Congressional

Intent

By

Treating

§ 6330(d)(1)

As

A

Jurisdictional

Requirement

A. When Congress overhauled the tax code in

1998 and adopted § 6330(d)(1), it created a more

adversarial system to protect taxpayer rights before

the IRS seized their property. Before that time, a

“taxpayer could not enjoin the government or prevent

collection—he or she had to pay the tax and pursue a

claim for a refund.” Pippa Browde, A Reflection on

Tax Collecting: Opening a Can of Worms to Clean Up

a Collection Due Process Jurisdictional Mess, 65

Drake L. Rev. 51, 56–57 (2017). Under that system,

business owners and their employees could report to

4

work in the morning only to find that the IRS had

padlocked the doors, and families could come home in

the evening only to find they were suddenly homeless

because the IRS had seized their property. See

Practices and Procedures of the Internal Revenue

Service: Hearings Before the S. Comm. on Finance,

105th Cong., S. Hrg. 105-190, at 1–4 (1997)

(statement of Sen. William V. Roth, Jr., Chairman, S.

Comm. on Finance).

In a series of high-profile hearings in 1997,

witnesses told Congress that their lives were

upended by their inability to contest the IRS’s

assessments, often for taxes they did not owe, before

the IRS summarily seized their property. See id. at

75–120. For instance, one witness explained that she

was forced to move her family into a rented room and

use her elderly parents’ retirement savings to satisfy

an IRS tax assessment that she did not owe because

the tax code did not permit her to seek prepayment

review from the Tax Court. See id. at 75–82.

In response to this testimony, Congress decided

“that the problem is [the IRS] has too much

unchecked power”: it had the “ability to investigate,

evaluate, and basically prosecute, all wrapped up

into one.” IRS Restructuring: Hearings Before the S.

Comm. on Finance, 105th Cong., S. Hrg. 105-529, at

210–11 (1998). Members of Congress therefore

declared that “reform must go beyond a few minor

improvements of strengthening taxpayer protections

to literally addressing the balance of power between

the taxpayer and the agency.” Id. at 4 (statement of

Sen. William V. Roth, Jr., Chairman, S. Comm. on

Finance).

5

The 1998 IRS Restructuring and Reform Act

tried to achieve that balance by implementing

“adversarial check[s]” that were “needed to cure

these abuses.” 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, 87 (2004). Congress

accordingly granted citizens the right to pre-payment

collection due process (“CDP”) hearings before the

IRS seizes the taxpayer’s property. See Giamelli v.

Commissioner, 129 T.C. 107, 118 (2007) (Wherry, J.,

concurring) (“Congress enacted section 6330 as a part

of remedial legislation . . . to ensure taxpayer rights

against

alleged

Internal

Revenue

Service

mistreatment by affording taxpayers formal

procedures designed to ensure due process where the

IRS seeks to collect taxes by levy (including by

seizure).” (citation omitted)). CDP hearings are

conducted before the IRS Office of Appeals, see

§§ 6320(b),

6330(b),

which

Congress

made

independent by insulating it from other functions of

the IRS, see Browde, supra, at 54.

Congress

reemphasized its intent in 2019 by renaming the

office the “Independent Office of Appeals.” See

Taxpayer First Act, Pub. L. No. 116-25, § 1001, 133

Stat. 981, 983 (2019).

Further cementing “the kryptonite of adversarial

process,” Congress allowed taxpayers to petition the

Tax Court for review of the IRS’s CDP

determinations before the IRS seizes their property

by adopting 26 U.S.C. § 6330(d)(1). Camp, supra, at

121. Section 6330(d)(1) is “one of the most significant

modern developments in the operation of the Tax

Court.” Harold Dubroff & Brant J. Hellwig, The

United States Tax Court: An Historical Analysis 481

6

(2d ed. 2014). Congress intended that the

combination of CDP hearings and petitions for review

would “afford taxpayers due process in collections”

and thereby “increase fairness to taxpayers.”

Lunsford v. Commissioner, 117 T.C. 183, 194 (2001)

(Laro, J., dissenting) (citations omitted).

B. Since 2016, the Tax Court has incorrectly held

that it lacks jurisdiction over petitions filed after

§ 6330(d)(1)’s 30-day filing requirement. See

Guralnik v. Commissioner, 146 T.C. 230 (2016). Two

circuits, including the Eighth Circuit in the decision

below, have agreed. Treating § 6330(d)(1)’s 30-day

filing requirement as jurisdictional thwarts

Congress’s intent because it threatens to eliminate a

critical adversarial check on the IRS’s authority.

As this Court has recognized, “[b]randing a rule

as going to a court’s subject-matter jurisdiction alters

the normal operation of our adversarial system.”

Henderson ex rel. Henderson v. Shinseki, 562 U.S.

428, 434 (2011). Under the usual adversarial system,

courts address only the “claims and arguments

advanced by the parties”; but because courts have an

obligation to ensure that they do not exceed the scope

of their jurisdiction, they must raise and decide

jurisdictional questions themselves, even if a party

has declined to press the issue. Id. at 434–35. Indeed,

treating rules as jurisdictional often introduces

elements of an inquisitorial system where the Tax

Court develops the facts and legal arguments rather

than permitting that work to be done by the parties

through the adversarial system. See McNeil v.

Wisconsin, 501 U.S. 171, 181, n.2 (1991); cf. Camp,

supra, at 86–89 (explaining how Congress’s 1998

7

reforms to the tax code intended to transform it from

an inquisitorial system to an adversarial system).

Experience shows that the consequences of this

shift are significant. Since its 2016 decision in

Guralnik, the Tax Court has diluted the adversarial

process Congress constructed by expending its

limited resources to determine whether a taxpayer

filed his petition within 30 days of receiving the IRS’s

determination—even when the IRS declined to raise

the argument, and regardless of whether the IRS

contributed to the taxpayer missing the deadline. For

instance, in a two-month period during 2019, the Tax

Court issued sua sponte orders in 12 different cases

directing the parties to explain why the court had

jurisdiction. 2 The Tax Court extinguished each of

those taxpayers’ adversarial rights when it dismissed

their petitions as untimely. See, e.g., Tilden v.

Commissioner, 846 F.3d 882 (7th Cir. 2017).

Because the Tax Court does not police its

jurisdiction only at the beginning of a case, the

adversarial process Congress intended often is

2 See Beaupre v. Commissioner, Docket No. 23536-18S (Nov.

8, 2019); Edmonson v. Commissioner, Docket No. 1239-19SL

(Nov. 12, 2019); Croker v. Commissioner, Docket No. 9070-18S

(Nov. 14, 2019); Gonzalez v. Commissioner, Docket No. 2256-19S

(Nov. 14, 2019); Garland v. Commissioner, Docket No. 1792119L (Nov. 25, 2019); Chappell v. Commissioner, Docket No.

20711-19 (Nov. 26, 2019); Harris v. Commissioner, Docket No.

15979-19S (Dec. 16, 2019); Castaldo v. Commissioner, Docket

No. 19264-19 (Dec. 19, 2019); Treas v. Commissioner, Docket No.

12225-19S (Dec. 19, 2019); Davila-Cabrera v. Commissioner,

Docket No. 19192-19 (Dec. 20, 2019); Mansfield v. Commissioner,

Docket No. 19342-19S (Dec. 23, 2019); Rosenthal v.

Commissioner, Docket No. 18392-19S (Dec. 26, 2019); Stephens

v. Commissioner, Docket No. 20418-19 (Dec. 30, 2019); Slavo v.

Commissioner, Docket No. 19732-19 (Dec. 30, 2019).

8

disrupted later on. Even when the IRS does not

contest jurisdiction and the parties ultimately resolve

their differences through settlement, the Tax Court

will not endorse the settlement if it discovers that the

taxpayer failed to timely file his petition. See, e.g.,

Williams v. Commissioner, Docket No. 24954-17 (Jan.

26, 2018). Treating filing deadlines as jurisdictional

can be especially disruptive to the adversarial

process and “unfairly prejudice litigants” when they

are scrutinized at the conclusion of a case, wasting

“months of work on the part of the attorneys and the

court.” Henderson, 562 U.S. at 434–35.

II. Treating § 6330(d)(1) As Jurisdictional

Disproportionately

Harms

Low-Income

Taxpayers

As Judge Kelly explained in her concurrence in

the decision below, construing § 6330(d)(1) as

jurisdictional has “drastic consequences” that are

shouldered

disproportionately

by

“low-income

taxpayers.” Boechler, P.C. v. Commissioner, 967 F.3d

760, 767 (8th Cir. 2020).

Low-income taxpayers are more likely to find

themselves subject to an IRS audit. See Leslie Book,

The Collection Due Process Rights: A Misstep or a

Step in the Right Direction?, 41 Hous. L. Rev. 1145,

1148 n.7 (2004) (explaining that in a typical tax year,

“one in 47 of the working poor had their returns

audited, compared to one in 145 of the affluent”

(citation omitted)); see also Practices and Procedures

of the Internal Revenue Service: Hearings Before the S.

Comm. on Finance, 105th Cong., S. Hrg. 105-190, at

324 (1997) (prepared statement of Sen. William V.

Roth, Jr., Chairman, S. Comm. on Finance) (“One of

the most distressing things you will learn from this

9

hearing is the preference to audit middle- and lowerincome taxpayers, as well as mom and pop small

businesses. So why are these Americans audited?

Because it’s easy. Most often, these are the taxpayers

who can’t afford to fight back.”). Low-income

taxpayers accordingly are also more likely to seek

CDP hearings, and they typically bring between 60%

and 70% of CDP challenges per year. See National

Taxpayer Advocate, Annual Report to Congress 2020,

at 188 (Dec. 31, 2020); National Taxpayer Advocate,

FY 2002 Annual Report to Congress 276 (Dec. 31,

2002). Correspondingly, nearly half of CDP petitions

in Tax Court are filed pro se. See Carlton M. Smith

& T. Keith Fogg, Tax Court Collection Due Process

Cases Take Too Long, 130 Tax Notes (TA) 403 (Jan.

24, 2011).

Construing § 6330(d)(1) as jurisdictional renders

the Tax Court an illusory adversarial check for these

low-income taxpayers in many cases. First,

“[u]nrepresented taxpayers may be less likely to

anticipate the severe consequences of filing a Tax

Court petition even one day late.” National Taxpayer

Advocate, 2021 Purple Book 101 (Dec. 31, 2020).

Those who do file late lose their opportunity for the

Tax Court’s review without even getting to the merits.

See National Taxpayer Advocate, Annual Report to

Congress 2020, at 168. Indeed, taxpayers with

counsel win their challenges to CDP determinations

at twice the rate of pro se challengers. See id.

Second, the complexities of the tax code and

inaccessibility of the IRS often prevents low-income

taxpayers from knowing when and where to

challenge the IRS’s assessments. The National

Taxpayer Advocate has determined that several

10

structural problems pose a serious access challenge

for taxpayers unable to seek assistance from counsel.

To begin, the IRS often sends taxpayers “on a voyage

that requires them to interpret obscure IRS

acronyms and function names, navigate a complex

and multifaceted phone tree, and identify unnamed

and often-changing responsible IRS officials.”

National Taxpayer Advocate, Annual Report to

Congress 2018, at 53 (Feb. 12, 2019). When taxpayers

actually complete this voyage, it can be for naught

because they “often receive incorrect information

about tax law or their own IRS accounts from IRS

customer service representatives, and taxpayers

usually have no way of contacting that representative

or the representative’s supervisor again.” Villanova

Federal Tax Clinic, Comment Letter on Proposed

Rule on Procedures for Asylum Withholding of

Removal; Credible Fear and Reasonable Fear Review

(EOIR Docket No. 18-0002), at 5 (July 15, 2020),

https://ssrn.com/abstract=3834701. Given low-income

taxpayers’ difficulties navigating the IRS’s structure,

many challenges in Tax Court are forfeited by failing

to meet § 6330(d)(1)’s 30-day requirement.

These practical challenges arise frequently. Take,

for example, the Ninth Circuit’s decision in Duggan v.

Commissioner, 879 F.3d 1029 (9th Cir. 2018). The

IRS mailed Duggan two Notices of Determination

informing him that it intended to collect several

years of back taxes. Id. at 1031. The notices told

Duggan that he could contest the IRS’s

determinations by “fil[ing] a petition with the United

States Tax Court within a 30-day period beginning

the day after the date of this letter.” Id. (alteration in

original) (citation omitted). Unaided by counsel,

Duggan concluded that his 30-day clock began

11

ticking the day after he received the letter and thus

filed his challenge in Tax Court within 31 days. Id.

Despite Duggan’s reliance on the IRS’s ambiguous

letter, the Ninth Circuit held that filing one day late

cost him his prepayment chance of litigating the

IRS’s notice of determination in Tax Court. See id.

Duggan’s experience is not uncommon: many

other pro se taxpayers misunderstand the IRS’s

notices to require them to file their petitions 31 days

after receiving their letter. See, e.g., Cunningham v.

Commissioner, 716 F. App’x 182, 184 (4th Cir. 2018)

(“Cunningham claims she understood the language in

the IRS letter to essentially count May 17 as ‘day

zero,’ and onward from there, resulting in a cutoff

date one day later than the true deadline.”).

The consequences of depriving taxpayers of

equitable tolling are often severe. In Matuszak v.

Commissioner, 862 F.3d 192 (2d Cir. 2017), a

taxpayer sought to utilize the innocent spouse

exception to avoid tax liabilities created by false

returns filed by her husband. The IRS moved the Tax

Court to dismiss for lack of jurisdiction because the

petition had been filed on January 6 instead of

January 5, as required by the applicable statute. Id.

at 195. The taxpayer responded that her petition was

timely because “two IRS agents informed her she had

until ‘the end of business on January 7’ to petition

the Tax Court for review.” Id. She also argued that it

would be unfair for the IRS to deprive an

unrepresented taxpayer of her prepayment petition

rights by giving her incorrect information, especially

since one of the IRS employees who gave her that

information was an attorney. See id. Acknowledging

the “drastic consequences” for the taxpayer, the

12

Second Circuit nevertheless concluded that Tax

Court lacked jurisdiction. Id. at 195–97; see also

Rubel v. Commissioner, 856 F.3d 301, 304 (3d Cir.

2017) (pro se taxpayer forfeited prepayment appeal to

Tax Court by relying on erroneous filing date

provided by the IRS in writing).

The

draconian

ramifications

of

viewing

§ 6330(d)(1) as a jurisdictional requirement are

particularly troubling when the initial assessment is

wrong. In an appeal pending before the Second

Circuit, the IRS sent Josefa Castillo—a low-income

taxpayer—an assessment claiming that she owes

over $80,000 for failing to pay taxes in 2014 on

income earned and reported by a restaurant Ms.

Castillo had sold five years earlier. See Brief of

Petitioner-Appellant at 5–7, Castillo v. Commissioner,

No. 20-1635 (2d Cir. Oct. 22, 2020). Ms. Castillo,

through counsel, filed a timely request for a CDP

hearing in March 2018, explaining that she sold the

restaurant in 2009 and has had no affiliation with it

since. See id. at 5–6. While her CDP hearing request

was pending, Ms. Castillo notified the IRS that she

had replaced her counsel and was now being

represented by the Fordham University Federal Tax

Clinic. See id. at 6–7. In September and October 2018,

Ms. Castillo’s new counsel reiterated to the IRS

through phone calls and letters that Ms. Castillo was

not liable for the back taxes. See id. at 7–8. Despite

further follow-up attempts, Ms. Castillo received no

information from the IRS for most of 2019. See id.

When she finally obtained her file from the IRS in

late 2019, Ms. Castillo was surprised to learn that

the IRS had rejected her challenge on December 11,

2018, and now claimed that she had waived judicial

review under § 6330(d)(1). See id. at 8.

13

Within 30 days of receiving her case file—the

first actual notice from the IRS regarding its

determination—Ms. Castillo petitioned the Tax Court

for review. See id. at 8–9. Although the IRS

acknowledged that Ms. Castillo had never received

its determination (which apparently got lost in the

mail), the IRS nevertheless moved to dismiss the

petition for lack of jurisdiction because Ms. Castillo

failed to file it within 30 days of the determination.

See id. at 9–11. Ignoring Ms. Castillo’s arguments

that equitable tolling was warranted given that she

did not owe back taxes and had never received the

IRS’s determination, the Tax Court dismissed her

petition for lack of jurisdiction. See id.

This unfair result resurrects the very problems

that Congress sought to eliminate when it

overhauled the tax code in 1998. Particularly when

the IRS makes an erroneous assessment and then

fails to properly inform the taxpayer of its CDP

determination, it should not be able to use

§ 6330(d)(1)’s 30-day deadline as a shield to insulate

its errors from the Tax Court’s review.

*

*

*

Congress enacted § 6330(d)(1) to ensure that

taxpayers have the right to a full adversarial hearing

before the IRS seizes their property. Treating the 30day deadline as a jurisdictional requirement as

opposed to a claim-processing rule undermines

congressional intent, to the particular detriment of

low-income taxpayers. Uncertainty on this important

issue is unacceptable but will persist until this Court

intervenes.

14

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

May 21, 2021

Respectfully submitted,

Sam Auld

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

One Manhattan West

New York, NY 10001

Shay Dvoretzky

Counsel of Record

Emily J. Kennedy

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

(202) 371-7370

shay.dvoretzky@skadden.com

Counsel for Amici Curiae