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 WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

________________________________________

BRIEF OF FEDERAL TAX CLINICS, LEGAL

AID GROUPS, AND TAX PROFESSORS AS

AMICI CURIAE IN SUPPORT OF PETITIONER

________________________________________

Shay Dvoretzky

Counsel of Record

Emily J. Kennedy

Peter A. Bruland

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

202-371-7000

shay.dvoretzky@skadden.com

Counsel for Amici Curiae

i

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 CONTENTS .............................................ii

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

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

INTRODUCTION AND

SUMMARY OF ARGUMENT .............................. 2

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

I.

Treating § 6330(d)(1) As Jurisdictional

Undermines Congressional Intent................. 3

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

Disproportionately Harms Low-Income

Taxpayers........................................................ 7

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

APPENDIX ................................................................ 1a

iii

TABLE OF AUTHORITIES

Page(s)

CASES

Boechler, P.C. v. Commissioner,

967 F.3d 760 (8th Cir. 2020)................................ 7, 8

Castillo v. Commissioner,

Docket No. 18336-19L

(T.C. Mar. 25, 2020) ................................................. 6

Cunningham v. Commissioner,

716 F. App’x 182 (4th Cir. 2018) ..................... 10, 11

Duggan v. Commissioner,

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

Garland v. Commissioner,

Docket No. 17921-19L

(T.C. Nov. 25, 2019) ................................................. 6

Giamelli v. Commissioner,

129 T.C. 107 (2007) .................................................. 4

Gray v. Commissioner,

138 T.C. 295 (2012) .................................................. 5

Henderson ex rel. Henderson v. Shinseki,

562 U.S. 428 (2011).............................................. 6, 7

Lunsford v. Commissioner,

117 T.C. 183 (2001) .................................................. 5

Matuszak v. Commissioner,

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

McCune v. Commissioner,

115 T.C. 114 (2000) .................................................. 5

McNeil v. Wisconsin,

501 U.S. 171 (1991).................................................. 6

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Rubel v. Commissioner,

856 F.3d 301 (3d Cir. 2017) ................................... 11

Williams v. Commissioner,

Docket No. 24954-17

(T.C. Jan. 26, 2018).................................................. 7

STATUTES

11 U.S.C. § 505 .......................................................... 13

26 U.S.C. § 6320(b) ...................................................... 5

26 U.S.C. § 6330 .......................................................... 2

26 U.S.C. § 6330(b) ...................................................... 5

26 U.S.C. § 6330(c)(3) .................................................. 5

26 U.S.C. § 6330(d)(1) ....................................... passim

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

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

OTHER AUTHORITIES

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

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, 6

Harold Dubroff & Brant J. Hellwig,

The United States Tax Court:

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

v

TABLE OF AUTHORITIES

(continued)

Page(s)

IRS Oversight:

Hearing Before the Senate Committee

on Finance, 105th Congress (1998) ......................... 4

IRS Restructuring:

Hearing Before the Senate Committee

on Finance, 105th Congress (1998) ......................... 4

National Taxpayer Advocate, 2021 Purple Book,

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

National Taxpayer Advocate,

Annual Report to Congress 2018,

(Feb. 12, 2019).......................................................... 9

National Taxpayer Advocate,

Annual Report to Congress 2020,

(Dec. 31, 2020)...................................................... 8, 9

Practices and Procedures

of the Internal Revenue Service:

Hearings Before the Senate Committee

on Finance, 105th Congress (1997) ................. 3, 4, 8

Tax Court Statistics,

ABA Tax Section, Court Procedure Committee,

http://procedurallytaxing.com/wp-content/uploads/2019/08/Group-I-Releasable.pdf .............. 7

Tax Statistics on Compliance Presence,

Table 17, Internal Revenue Service,

https://www.irs.gov/statistics/

compliance-presence ............................................. 8

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

The 2019 Tax Filing Season

and the 21st-Century IRS:

Hearing Before the Senate Committee

on Finance, 116th Congress (2019) ......................... 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 ................... 9, 10

1

INTEREST OF AMICI CURIAE

Amici include the Federal Tax Clinic at Villanova

University’s Charles Widger School of Law, the Center for Social Justice Impact Litigation Clinic at Seton

Hall University School of Law, the Fordham Law

School Low-Income Taxpayer Clinic, and twentythree other groups and individuals listed in the Appendix.* Amici advise indigent individuals and

represent low-income taxpayers in controversies before the Internal Revenue Service (IRS), the United

States Tax Court, and the federal courts of appeals,

with the goals of maximizing these clients’ financial

well-being and protecting their rights.

Amici have a substantial interest in the resolution

of this case because low-income taxpayers suffer disproportionately when courts treat 26 U.S.C.

§ 6330(d)(1)’s 30-day deadline for filing a petition as

jurisdictional. Low-income taxpayers 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)(1) as jurisdictional can deprive

these taxpayers of their only opportunity for judicial

review before the IRS seizes their property—sometimes for taxes they do not even owe.

* The parties have consented to the filing of this brief. No

counsel for any party authored this brief in whole or in part. No

person or entity other than amici curiae or their counsel made a

monetary contribution to the brief’s preparation or submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

For decades, taxpayers’ hands were tied when the

IRS made a mistake. Their only option: pay now, challenge later. That changed in 1998, when Congress

created a comprehensive “collection due process”

(CDP) scheme for administrative and judicial review

of IRS collection decisions. This critical reform, codified at 26 U.S.C. § 6330, gave taxpayers the right to

an adversarial process before the agency takes 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—and 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 may deprive these taxpayers of their only

chance to have the Tax Court review the CDP determination before seizing their property, even when

equitable reasons counsel otherwise.

One such taxpayer is Josefa Castillo, whose case

is pending before the Second Circuit. The IRS sent

Ms. Castillo a collection letter claiming that she owed

$57,000 for failing to pay 2014 taxes on her small business. But Ms. Castillo had sold that business in 2009.

When she asked for a CDP hearing, the agency ruled

against her—without providing notice—and closed

her case. Then, after Ms. Castillo discovered the

agency’s decision and sought judicial review, the IRS

3

convinced the Tax Court to dismiss for lack of jurisdiction, since Ms. Castillo had not filed within 30 days of

its CDP determination. It is unfair—and contrary to

Congress’s intent—to let the IRS use § 6330(d)(1) to

shield erroneous assessments like Ms. Castillo’s from

judicial review.

ARGUMENT

I.

Treating § 6330(d)(1) As Jurisdictional

Undermines Congressional Intent

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 work in

the morning only to find that the IRS had padlocked

the doors, and families could come home in the evening 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 Fin., 105th Cong. 1-4 (1997)

(opening statement of Sen. William V. Roth, Jr.,

Chairman, S. Comm. on Fin.).

In a series of high-profile hearings in 1997, witnesses explained to Congress that their lives had been

upended by their inability to contest the IRS’s assessments before the IRS summarily seized their

property, often for taxes they did not owe. See id. at

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

4

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—all because the tax code did not permit her to seek

prepayment review from the Tax Court. See id. at 7582.

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

Oversight: Hearing Before the S. Comm. on Fin., 105th

Cong. 210-11 (1998) (opening statement of Sen. Phil

Gramm). 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.” IRS Restructuring: Hearings Before the S. Comm. on Fin., 105th Cong. 4 (1998)

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

Comm. on Fin.).

The 1998 IRS Restructuring and Reform Act

sought 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, 86 (2004). Congress accordingly granted citizens the right to prepayment 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

5

collect taxes by levy (including by seizure).’” (citation

omitted)). CDP hearings are conducted before the IRS

Office of Appeals, see 26 U.S.C. §§ 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). After the CDP hearing, the

Independent Office of Appeals issues a notice of determination. Id. § 6330(c)(3).

Congress further protected taxpayer rights by

providing an avenue for judicial review of CDP determinations. Section 6330(d)(1), the provision at issue

in this case, provides that a taxpayer may petition the

Tax Court to review a CDP determination within 30

days. Id. § 6330(d)(1). By allowing taxpayers to petition the Tax Court to review CDP determinations

before the IRS seizes their property, § 6330(d)(1) represents “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 (2d ed. 2014).

Through this comprehensive regime of administrative and judicial review, Congress intended to

“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. The Tax Court has long held—incorrectly—

that it lacks jurisdiction over petitions filed outside

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

Gray v. Commissioner, 138 T.C. 295, 299 (2012) (citing

McCune v. Commissioner, 115 T.C. 114, 117 (2000)).

6

Treating § 6330(d)(1) as jurisdictional thwarts congressional 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 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. Interpreting § 6330(d)(1) as jurisdictional dilutes the adversarial process Congress

created: the Tax Court expends its limited resources

to determine whether a taxpayer filed his or her petition within 30 days of receiving the IRS’s notice of

CDP determination—even when the IRS declined to

raise the argument, and regardless of whether the IRS

contributed to the taxpayer’s missing the deadline.

See, e.g., Castillo v. Commissioner, Docket No. 1833619L (T.C. Mar. 25, 2020); Garland v. Commissioner,

Docket No. 17921-19L (T.C. Nov. 25, 2019).

7

Moreover, because the Tax Court can dismiss at

any time for lack of jurisdiction, the adversarial system Congress intended is often disrupted late in the

process. 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 or her petition. See, e.g.,

Williams v. Commissioner, Docket No. 24954-17 (T.C.

Jan. 26, 2018). Treating filing deadlines as jurisdictional can be especially disruptive to the adversarial

process and can “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.

This seek-and-dismiss mission is all the more

striking given how few CDP petitions are filed in the

first place. On average, CDP petitions comprise approximately six percent of the Tax Court’s annual

caseload: roughly 1,750 out of 29,700 cases. See Tax

Court Statistics, ABA Tax Section, Court Procedure

Committee, at 11, 25, http://procedurallytaxing.com/wp-content/uploads/2019/08/Group-IReleasable.pdf (last visited Nov. 19, 2021). There is

thus little administrative efficiency gained by construing § 6330(d)(1) as jurisdictional, and certainly none

that outweighs the detrimental ramifications for taxpayers.

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

Disproportionately

Harms

Low-Income

Taxpayers

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

“‘drastic’ consequences” that are shouldered disproportionately by “low-income taxpayers.” Boechler, P.C.

8

v. Commissioner, 967 F.3d 760, 767 (8th Cir. 2020)

(Kelly, J., concurring) (citation omitted).

A. Low-income taxpayers are more likely to find

themselves subject to an IRS audit. In 2018, for example, taxpayers earning the federal minimum wage

were audited twice as often as those earning between

$500,000 and $1,000,000—and four times as often as

those earning between $50,000 and $500,000. See Tax

Statistics on Compliance Presence, Table 17, IRS,

https://www.irs.gov/statistics/compliance-presence

(last visited Nov. 19, 2021). Notably, “Humphreys

County, [Mississippi], has a higher audit rate than

any other county in America. It’s not because it’s

packed to the county line with money launderers or

shell corporations. It’s because Humphreys County is

poor, and most of them claim the Earned Income Tax

Credit.” The 2019 Tax Filing Season and the 21st-Century IRS: Hearing Before the S. Comm. on Fin., 116th

Cong. 62 (2019) (prepared statement of Sen. Ron Wyden, Ranking Member, S. Comm. on Fin.); see also

Practices and Procedures of the Internal Revenue Service: Hearings Before the S. Comm. on Fin. at 324,

(prepared statement of Sen. William V. Roth, Jr.,

Chairman, S. Comm. on Fin.) (“[W]hy are these [lowincome] 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. They often do so without

the aid of a lawyer: more than half (61%) of CDP petitions in Tax Court are filed pro se. National Taxpayer

Advocate, Annual Report to Congress 2020 at 188

(Dec. 31, 2020).

9

B. Construing § 6330(d)(1) as jurisdictional

threatens to render the Tax Court an illusory adversarial check for many low-income taxpayers.

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).

And those who do file late would categorically lose

their opportunity for the Tax Court to review the merits—even if the taxpayer has good reason for having

filed late. Indeed, taxpayers with counsel win their

challenges to CDP determinations at twice the rate of

pro se challengers. See National Taxpayer Advocate,

Annual Report to Congress 2020 at 168.

Second, the complexities of the tax code and inaccessibility of the IRS often impede low-income

taxpayers from knowing when and where to challenge

the IRS’s assessments. The National Taxpayer Advocate has determined that several 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

10

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 lowincome taxpayers’ difficulties navigating the IRS’s

structure, some challenges in Tax Court are forfeited

when those taxpayers fail to meet § 6330(d)(1)’s 30day requirement.

C. 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 Philip Duggan two notices of determination informing him that it intended to collect

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

told Mr. Duggan that he could contest the CDP determination 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). Unaided by counsel, Mr. Duggan concluded that

his 30-day clock began ticking the day after he received the letter and thus filed his challenge in Tax

Court within 31 days. Id. Despite Mr. Duggan’s reliance on the IRS’s ambiguous letter, the Ninth Circuit

held that the filing deadline was jurisdictional and

thus filing one day late cost him his prepayment

chance of litigating the CDP determination in Tax

Court. See id. at 1035.

Mr. Duggan’s experience is not uncommon: other

pro se taxpayers likewise misunderstand the IRS’s notices of CDP determination to require them to file

their petitions 31 days after receiving their letter, rather than 31 days after the letter was created. 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

11

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 can be severe. Consider Matuszak v.

Commissioner, 862 F.3d 192 (2d Cir. 2017), which involved the 90-day filing window under § 6015(e)(1)(A).

Linda Matuszak sought to utilize the innocent-spouse

exception to avoid tax liabilities created by false returns filed by her husband. The IRS successfully

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 statute. Id. at

195. Ms. Matuszak appealed, arguing 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 Ms. Matuszak, the Second

Circuit nevertheless affirmed, finding the statute to

be jurisdictional and thus the equities to be irrelevant.

Id. at 195-98 (citation omitted); 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). As Petitioner explains, the language of

§ 6330(d)(1) compels a different result, making the

harsh results of treating it as a jurisdictional requirement all the more troubling here than in Matuszak.

The draconian ramifications of

§ 6330(d)(1) as jurisdictional are

interpreting

particularly

12

troubling when there is not only good reason for the

late filing of the appeal, but the initial assessment is

also plainly wrong. Take Josefa Castillo—a low-income, non-English-speaking taxpayer whose case is

pending before the Second Circuit. Ms. Castillo’s troubles began when she received a collection letter from

the IRS. According to the letter, she had failed to pay

2014 taxes on the income from her small business,

Castillo Seafood, and owed more than $57,000 in unpaid taxes, penalties, and interest. But here’s the rub:

Ms. Castillo sold the restaurant five years earlier, in

2009. See Brief of Petitioner-Appellant at 5-6, Castillo

v. Commissioner, No. 20-1635 (2d Cir. Oct. 22, 2020)

(“Castillo Br.”).

In March 2018, Ms. Castillo’s lawyer asked the

agency for a CDP hearing. See id. at 5-6. While the

request was pending, Ms. Castillo notified the IRS

that she had replaced her counsel and was now being

represented by amicus Fordham Law School Low-Income Taxpayer Clinic. See id. at 6-7. In September

and October 2018, Fordham called the IRS repeatedly

to explain that Ms. Castillo had sold the restaurant

years before, had not been affiliated with it since, and

thus was not liable for the back taxes. See id. at 7.

Then, in follow-up calls and letters, Fordham asked

whether the IRS had reached a decision in Ms. Castillo’s CDP hearing. The agency never responded.

Despite further follow-up attempts, Ms. Castillo

heard nothing from the IRS for most of 2019. See id.

at 7-8. So when she finally obtained her IRS tax-account transcript in September 2019, Ms. Castillo was

shocked to learn that the agency had issued its CDP

determination and closed her case. Making matters

worse, the IRS sent its notice of CDP determination to

Ms. Castillo’s former lawyer—but it sent nothing to

13

Fordham, her attorney at the time of that notice. See

id. at 9.

Within 30 days of receiving her tax-account transcript—Ms. Castillo’s first actual notice of the CDP

determination—she petitioned the Tax Court for review. See id. at 8-9. The IRS conceded that

Ms. Castillo never received its notice of CDP determination, which was lost in the mail. Yet it still moved

to dismiss for lack of jurisdiction because Ms. Castillo

failed to file her appeal within 30 days of December

11, 2018, the date of the CDP determination. See id.

at 9-11.

The Tax Court agreed. Ignoring Ms. Castillo’s plea

that equitable tolling was warranted because she

never received the notice of CDP determination, the

court dismissed her petition for lack of jurisdiction.

See id. at 11. Should this decision stand, Ms. Castillo

would have just two options: (i) pay the back taxes—

which she cannot afford—and then seek a refund, or

(ii) file for bankruptcy and then sue for determination

of tax liability under 11 U.S.C. § 505. See Castillo Br.

at 9-10.

*

*

*

The rule that the Commissioner seeks would resurrect 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 notify the

taxpayer of its CDP determination, or misinforms a

taxpayer about the deadline to appeal, 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. Interpreting § 6330(d)(1) to be jurisdictional, rather

than a claim-processing rule subject to equitable

14

tolling, would be fundamentally unfair and would contravene congressional intent.

CONCLUSION

The Court should reverse the decision below and

hold that § 6330(d)(1) is not a jurisdictional requirement.

Respectfully submitted,

Shay Dvoretzky

Counsel of Record

Emily J. Kennedy

Peter A. Bruland

SKADDEN, ARPS, SLATE,

MEAGHER & FLOM LLP

1440 New York Ave., NW

Washington, DC 20005

202-371-7000

shay.dvoretzky@skadden.com

Counsel for Amici Curiae

November 22, 2021

1a

APPENDIX

List Of Amici Curiae

California Polytechnic State University Orfalea College of Business Low Income Taxpayer Clinic

Professor Robert M. Caserta, Hofstra University,

Maurice A. Deane School of Law Federal Tax Clinic

Community Tax Law Project

Cornell Law School Low-Income Taxpayer Law and

Accounting Practicum

Maria Dooner, Practitioner-in-Residence, American

University Washington College of Law Janet R.

Spragens Federal Tax Clinic

Professor Jacqueline Laínez Flanagan, Acting Director, American University Washington College of Law

Janet R. Spragens Federal Tax Clinic

Fordham Law School Low-Income Taxpayer Clinic

Greater Boston Legal Services Low-Income Taxpayer

Clinic

Legal Aid of Nebraska

Legal Aid Society of Columbus

Legal Services of Greater Miami, Inc.

Lewis & Clark Law School Low Income Taxpayer

Clinic

2a

Loyola University Chicago School of Law Federal Tax

Clinic

Seton Hall University School of Law Center for Social

Justice Impact Litigation Clinic

Southeastern Ohio Legal Services

Syracuse University College of Law Low Income Taxpayer Clinic

Texas A&M University School of Law Tax Dispute

Resolution Clinic

University of Baltimore Low-Income Taxpayer Clinic

University of California Hastings Law Low-Income

Taxpayer Clinic

University of Denver Sturm College of Law Low Income Taxpayer Clinic

University of Minnesota Law School Ronald M.

Mankoff Tax Clinic

University of Pittsburgh School of Law Low-Income

Tax Clinic

University of Washington School of Law Federal Tax

Clinic

Villanova University Charles Widger School of Law

Federal Tax Clinic

Washington and Lee University School of Law Tax

Clinic

3a

Washington University in St. Louis School of Law Low

Income Taxpayer Clinic