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

Supreme Court briefNov 22, 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 Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

---------------------------------♦--------------------------------BRIEF OF THE CENTER FOR TAXPAYER RIGHTS

AND THE NATIONAL CONSUMER LAW CENTER

AS AMICI CURIAE IN SUPPORT OF PETITIONER

---------------------------------♦--------------------------------T. KEITH FOGG

TAX CLINIC AT THE LEGAL

SERVICES CENTER OF

HARVARD LAW SCHOOL

122 Boylston Street

Jamaica Plain, MA 02130

617.390.2532

kfogg@law.harvard.edu

CARLTON M. SMITH

Counsel of Record

255 W. 23rd Street,

Apt. 4AW

New York, NY 10011

646.230.1776

carltonsmth@aol.com

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

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

1

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

2

ARGUMENT ........................................................

4

I.

UNDER THIS COURT’S PRECEDENTS,

SECTION 6330(d)(1)’S DEADLINE IS

SUBJECT TO EQUITABLE TOLLING ....

6

A. Section 6330(d)(1)’s Text Supports the

Availability of Equitable Tolling .........

7

B. Section 6330(d)(1)’s Context Supports

the Availability of Equitable Tolling ..... 11

1. Section 6330(d)(1) Is Not an Internal Appeal Deadline and Impacts

Mostly Pro Se Litigants .................. 11

2. Section 6330’s Subject Matter Is

Equitable ........................................ 13

3. The Fact That Section 6330(d)(1) Is

Contained in the Tax Code Does

Not Preclude the Equitable Tolling

of Its Deadline ................................ 15

II. THERE ARE TYPICAL LATE FILINGS

IN THE TAX COURT AS TO WHICH EQUITABLE TOLLING COULD EXPECT

TO APPLY .................................................. 23

A. The IRS Sometimes Actively Misleads

Taxpayers About Tax Court Filing

Deadlines ............................................. 24

ii

TABLE OF CONTENTS – Continued

Page

B. Extraordinary Circumstances Sometimes Prevent Taxpayers From Meeting Tax Court Filing Deadlines ........... 27

C. Pro Se Taxpayers Sometimes Timely

File Tax Court Petitions in the Wrong

Forum .................................................. 31

CONCLUSION..................................................... 35

iii

TABLE OF AUTHORITIES

Page

CASES

Atuke v. Commissioner, T.C. Docket No. 3168015SL (order dated Apr. 15, 2016) ............................28

Bailey v. Principi, 351 F.3d 1381 (Fed. Cir. 2003)........31

Baldwin Cty. Welcome Center v. Brown, 466 U.S.

147 (1984) ................................................................29

Bull v. United States, 295 U.S. 247 (1935) .................16

Carnahan v. Commissioner, T.C. Memo. 1994163 ...........................................................................18

Castillo v. Commissioner, T.C. Docket No. 1833619L (order dated Mar. 25, 2020) .............................28

Cunningham v. Commissioner, 716 F. App’x 182

(4th Cir. 2018).................................................... 26, 27

Doe v. United States, 398 F.3d 686 (5th Cir. 2005) .......15

Duggan v. Commissioner, 879 F.3d 1029 (9th Cir.

2018) .................................................................. 26, 27

Dunlap v. Commissioner, T.C. Docket No. 81618L (order dated Mar. 15, 2018) .............................29

Enochs v. Williams Packing & Navigation Co.,

370 U.S. 1 (1962) .....................................................16

Flight Attendants Against UAL Offset v. Commissioner, 165 F.3d 572 (7th Cir. 1999) ..................15

Gitman v. Commissioner, T.C. Docket No. 580419 (order dated Aug. 8, 2019) ..................................31

Haitsuka v. Commissioner, T.C. Docket No.

14495-15L (order dated Oct. 9, 2015) .....................31

iv

TABLE OF AUTHORITIES – Continued

Page

Hecht Co. v. Bowles, 321 U.S. 321 (1944) ....................13

Holland v. Florida, 560 U.S. 631 (2010) ............. passim

Integrated Event Management, Inc. v. Commissioner, T.C. Docket No. 27674-16SL (order

dated May 31, 2017) ................................................27

Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89

(1990) ............................................................... passim

Islam v. Commissioner, T.C. Docket No. 1409919S (order dated Feb. 28, 2020) ..............................32

Jones v. Commissioner, T.C. Memo. 2003-29 ..............26

Mannella v. Commissioner, 631 F.3d 115 (3d Cir.

2011) .................................................................. 24, 30

Matuszak v. Commissioner, 862 F.3d 192 (2d Cir.

2017) ........................................................................25

Menominee Indian Tribe of Wis. v. United States,

577 U.S. 250 (2016) .................................................31

Meyer v. Commissioner, T.C. Memo. 2003-12 .............18

Myers v. Commissioner, 928 F.3d 1025 (D.C. Cir.

2019) .................................................................. 13, 15

Nauflett v. Commissioner, 892 F.3d 649 (4th Cir.

2018) ........................................................................25

Pottgen v. Commissioner, T.C. Docket No. 141015L (order dated Mar. 4, 2016) ...............................27

Protter v. Commissioner, T.C. Docket No. 2297515SL (order dated Sept. 26, 2017) ..........................27

v

TABLE OF AUTHORITIES – Continued

Page

Rosenthal v. Commissioner, T.C. Docket No.

18392-19S (order dated Dec. 26, 2019) ...................32

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

2017) ........................................................................25

Santana-Venegas v. Principi, 314 F.3d 1293 (Fed.

Cir. 2002) .................................................................31

Saporito v. Commissioner, T.C. Docket No. 847117L (order dated May 31, 2017) .............................27

Sarrell v. Commissioner, 117 T.C. 122 (2001) ............28

Sebelius v. Auburn Regional Med. Cntr., 568 U.S.

145 (2013) .................................................... 11, 12, 13

Shaffer v. Commissioner, T.C. Memo. 1994-618 .........18

Stone v. White, 301 U.S. 532 (1937) ............................16

Swanson v. Commissioner, T.C. Docket No.

14406-15S (order dated Jan. 14, 2016) ............. 26, 27

United States v. Beggerly, 524 U.S. 38 (1998) .......... 6, 8

United States v. Boyle, 469 U.S. 241 (1985) ......... 18, 30

United States v. Brockamp, 519 U.S. 347 (1997) ... passim

United States v. Kwai Fun Wong, 575 U.S. 402

(2015) ................................................................... 6, 12

United States v. Rodgers, 461 U.S. 677 (1983) ...........17

Volpicelli v. United States, 777 F.3d 1042 (9th

Cir. 2015) ........................................................... 11, 15

Wallaesa v. Commissioner, T.C. Docket No. 117917L (order dated Apr. 20, 2017) ..............................27

vi

TABLE OF AUTHORITIES – Continued

Page

Webber v. Commissioner, T.C. Docket No. 1430718L (order dated June 7, 2019) ...............................34

Young v. United States, 535 U.S. 43 (2002) .............. 6, 9

STATUTES AND REGULATIONS

26 U.S.C. (I.R.C.):

Section 408(d)(3)(I)..................................................23

Section 6013(e) ........................................................20

Former Section 6013(e)(1)(C)..................................17

Section 6015 ............................................................14

Section 6015(b) .................................................. 14, 20

Section 6015(b)(1)(D) ..............................................20

Section 6015(e)(1)(A) ...............................................21

Section 6015(f ) ........................................................20

Section 6081(a) ........................................................19

Section 6213(a) .................................................. 21, 32

Section 6214(b) ........................................................23

Section 6330 ............................................................13

Section 6330(a) .................................................. 33, 34

Section 6330(c)(2)(A) ...............................................13

Section 6330(c)(2)(A)(i) ...........................................14

Section 6330(c)(2)(A)(iii) .........................................14

Section 6330(c)(3)(C) ........................................... 5, 14

vii

TABLE OF AUTHORITIES – Continued

Page

Section 6330(d) ..........................................................9

Section 6330(d)(1) .....................................................2

Section 6404 ............................................................18

Section 6501 ............................................................15

Section 6511 .............................................. 7, 9, 16, 20

Section 6511(b) ..........................................................7

Section 6511(c) ..........................................................7

Section 6511(d)(1) .....................................................7

Section 6511(d)(2) .....................................................7

Section 6511(d)(3) .....................................................7

Section 6511(d)(4) .....................................................7

Section 6511(d)(5) .....................................................7

Section 6511(d)(6) .....................................................7

Section 6511(d)(7) .....................................................7

Section 6511(d)(8) .....................................................7

Section 6532(c) ........................................................11

Section 6651(a) ........................................................18

Section 6654(e)(3)(A) ...............................................17

Section 6673(a)(1)(A) ..............................................35

Section 7421(a) ........................................................16

Section 7122 ............................................................21

Section 7426 ............................................................11

Section 7441 ............................................................12

viii

TABLE OF AUTHORITIES – Continued

Page

Section 7476 ............................................................15

Section 7502 ............................................................33

Section 7502(a)(2)(B) ..............................................33

Section 7623(b)(4) ...................................................13

Section 7803(a)(3) .....................................................4

Section 7803(c)(1)(B) .................................................1

26 C.F.R. Section 301.7122-1(b)(3) .............................14

26 C.F.R. Section 301.7122-1(b)(3)(ii) ........................22

26 C.F.R. Section 301.9100-2(a)(2) .............................19

26 C.F.R. Section 301.9100-3(b)(1)(ii) ........................19

Sec. 301(a)(2), Pub. L. 104-168, 110 Stat. 1457..........18

Sec. 411, Pub. L. 98-369, 98 Stat. 790 ........................17

Sec. 644, Pub. L. 107-16, 115 Stat. 123 ......................23

Sec. 858, Pub. L. 109-280, 120 Stat. 1020 ..................23

Sec. 1563(a), Pub. L. 99-514, 100 Stat. 2762 ..............18

Sec. 3201(a), Pub. L. 105-206, 112 Stat. 734-40 .........20

Sec. 3202(a), Pub. L. 105-206, 112 Stat. 740-41 .........20

Sec. 3401, Pub. L. 105-206, 112 Stat. 746-50 .............22

Sec. 3462, Pub. L. 105-206, 112 Stat. 764-67 .............21

OTHER AUTHORITIES

H. Dubroff & B. Hellwig, “The United States Tax

Court – An Historical Analysis” (2d ed. 2014) .......21

ix

TABLE OF AUTHORITIES – Continued

Page

H.R. Rep. No. 105-599........................................... 20, 21

Internal Revenue Manual Section 4.8.9.25.1

(July 9, 2013) ...........................................................32

Internal Revenue Manual Section 8.22.5.3.1

(Aug. 31, 2020) .........................................................34

IRS Data Book, 2020 ..................................................22

IRS Memorandum for Director, Campus Collection and Director, Field Collection, Control No.

SBSE-05-0920-0063 (Sept. 3, 2020) ........................25

Nat’l Taxpayer Advocate 2005 Annual Report to

Congress (2005) .......................................................21

Nat’l Taxpayer Advocate 2017 Annual Report to

Congress (2017) .........................................................4

Nat’l Taxpayer Advocate 2020 Annual Report to

Congress (2020) ........................................... 10, 13, 25

Nat’l Taxpayer Advocate 2021 Purple Book

(2021) .........................................................................4

Press Release, U.S. Rep. Bill Pascrell, Jr., Pascrell Probes Mail Delay Impact on IRS and

Tax Refunds (Oct. 26, 2021) ....................................29

S. Rep. 99-313 .............................................................18

Supreme Court Rule 37 ................................................1

U.S. Tax Court Congressional Budget Justification Fiscal Year 2021 (Feb. 10, 2020) ......................13

1

INTEREST OF AMICI CURIAE1

The Center for Taxpayer Rights is a Section

501(c)(3) non-profit organization that promotes taxpayer rights in the United States and abroad. The

Center also seeks to educate the public and government officials about the role that taxpayer rights play

in promoting trust in systems of taxation.

The Center’s Executive Director is Nina E. Olson.

She was appointed under Section 7803(c)(1)(B)2 as the

IRS National Taxpayer Advocate and served in that position from 2001 to 2019. As National Taxpayer Advocate, Ms. Olson represented taxpayers’ interests and

perspectives within the IRS and before Congress.

The National Consumer Law Center is a Section

501(c)(3) non-profit legal research and advocacy organization whose mission is to protect the rights of lowincome, financially distressed, and elderly consumers

nationwide, including the right to access to the courts.

For over fifty years, NCLC has been a leading source of

legal and public policy expertise on consumer issues

1

Both parties have consented in writing to the filing of this

brief. Pursuant to Supreme Court Rule 37.6, no party’s counsel

authored this brief in whole or in part and no party or party’s

counsel contributed money intended to fund the preparation or

submission of this brief. Aside from amici, the only person that

contributed to the preparation or submission of this brief was

Harvard University, of which the Tax Clinic is a part. Harvard

University paid the costs of printing this brief.

2

Unless otherwise indicated, all section references in this

brief are to the Internal Revenue Code, codified in Title 26 of the

U.S. Code.

2

for Congress, state legislatures, agencies, courts, and

consumer advocates.

Because low-income taxpayers frequently miss

filing deadlines, even when acting in good faith and

with adequate due diligence, amici believe that the

low-income taxpayer community would benefit were

this Court to rule that Section 6330(d)(1) is nonjurisdictional and subject to equitable tolling.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

Amici have read Boechler’s opening brief. Amici

fully agree with the brief ’s conclusion that the filing

deadline in Section 6330(d)(1) is nonjurisdictional.

Amici’s brief focuses on equitable tolling. This

brief concludes with common examples of situations

where equitable tolling could apply in Tax Court cases

(under its collection due process (“CDP”), deficiency,

and innocent spouse jurisdictions).

This Court’s case law makes clear that Section

6330(d)(1) is not the kind of exceptional statute for

which equitable tolling is unavailable. Equitable tolling provides a necessary prerequisite for justice when

low-income taxpayers – often representing themselves

pro se – miss Tax Court filing deadlines through no

fault of their own.

As this Court has previously explained, federal

statutes of limitations are presumptively subject to

equitable tolling. Nothing in the text, structure, or

3

purpose of Section 6330(d)(1) rebuts that presumption.

Rather, there are “good reasons to believe” that Congress would have “want[ed] the equitable tolling doctrine to apply” in Section 6330(d)(1) cases. Cf. United

States v. Brockamp, 519 U.S. 347, 350 (1997) (emphasis

added).

The Tax Court, a judicial tribunal with a majority

of pro se filers, exemplifies the kind of judicial tribunal

where equitable tolling has traditionally been applied.

A comparison of the statute construed by this

Court in Brockamp to that construed in Holland v.

Florida, 560 U.S. 631 (2010), shows that Section

6330(d)(1)’s filing deadline acts far more like the deadline found in Holland to be subject to equitable tolling

than the deadline found in Brockamp not to be subject

to equitable tolling. CDP is an equitable area of the Tax

Code, and it was enacted after this Court’s creation of

the presumption in favor of tolling. Therefore, under

Holland, 560 U.S. at 646, the presumption in favor of

tolling is doubly-“reinforced.”

Despite regular government arguments to the contrary, a sentence from dicta in the Brockamp opinion

does not require this Court to bar equitable tolling

from any part of the Tax Code. Collection of tax liability under the Code regularly occurs with equity explicitly in mind.

---------------------------------♦---------------------------------

4

ARGUMENT

The last two IRS National Taxpayer Advocates

have for some time argued that Section 6330(d)(1) and

related statutes are or should be subject to equitable

tolling. As then-National Taxpayer Advocate Olson explained in her 2017 Annual Report to Congress:

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. . . . [T]he right to a

fair and just tax system requires that [equitable] doctrines be available to taxpayers in the

rare cases they would apply.

1 Nat’l Taxpayer Advocate 2017 Annual Report to Congress 291 (2017).3 The current National Taxpayer Advocate has similarly explained that “[t]reating the

[Internal Revenue Code’s] time limits for bringing suit

as . . . not subject to equitable doctrines[ ] leads to unfair outcomes.” Nat’l Taxpayer Advocate 2021 Purple

Book 101 (2021).

3

This quote derives from the portion of the annual report

proposing legislative changes and entitled Legislative Recommendation #3 (“Make the Time Limits for Bringing Tax Litigation

Subject to the Judicial Doctrines of Forfeiture, Waiver, Estoppel,

and Equitable Tolling. . . .”), at 283-92. In her recommendation (at

287), she relied, in part, on what is known as the “Taxpayer Bill

of Rights,” enacted in 2015, at Section 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)).

5

These unfair outcomes are not required by – indeed, they are incompatible with – existing law. This

Court’s equitable tolling precedents make clear that

Section 6330(d)(1) is the kind of statute that is subject

to equitable tolling.

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 levies before the actual harm

occurs – a vital issue for low-income 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.” Section

6330(c)(3)(C). In CDP hearings, taxpayers are requested to submit financial income and asset disclosure forms so that the Appeals Officers can evaluate

how each possible collection alternative might apply on

the individual facts of the case. 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 – a deadline in an equitable area

– to prohibit equitable tolling. The Tax Court’s and

Eighth Circuit’s jurisdictional holdings in this case undermine the congressional intent to expand taxpayer

protections.

6

I.

UNDER THIS COURT’S PRECEDENTS,

SECTION 6330(d)(1)’S DEADLINE IS SUBJECT TO EQUITABLE TOLLING.

“It is hornbook law that limitations periods are

‘customarily subject to equitable tolling’ unless tolling

would be ‘inconsistent with the text of the relevant

statute.’ ” Young v. United States, 535 U.S. 43, 49 (2002)

(quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89,

95 (1990), and United States v. Beggerly, 524 U.S. 38,

48 (1998)). This “rebuttable presumption” applies in

“suits against the United States” as well as against private parties. Irwin, 498 U.S. at 95-96. This Court “presume[s]” that Congress drafts limitations periods “in

light of [the] background principle” that tolling is generally available. Young, 535 U.S. at 49.

Congress can rebut Irwin’s presumption of equitable tolling in one of two ways.

First, when Congress makes a time bar “jurisdictional,” a court must enforce that bar “even if equitable

considerations would support extending the prescribed

time period.” United States v. Kwai Fun Wong, 575

U.S. 402, 408-09 (2015). Boechler correctly argues in

its brief that Congress did not make the Section

6330(d)(1) deadline jurisdictional.

Second, even when a time bar is not jurisdictional,

a statute’s text and context may collectively make clear

that equitable tolling is not available. That is not the

case here.

7

A. Section 6330(d)(1)’s Text Supports the

Availability of Equitable Tolling.

Statutory text can rebut the presumption in favor

of equitable tolling. But, it does not do so here.

In Brockamp, this Court faced the issue of whether

the 3-year time limit for filing an administrative tax

refund claim in Section 6511 was subject to equitable

tolling. Without discussing whether the time period

was jurisdictional (and apparently assuming that it

was not), this Court held that, even if the Irwin presumption applied to this time period, a combination of

factors would rebut any presumption that equitable

tolling could apply: (1) the time limits were set forth in

an “unusually emphatic form”; (2) the statute set forth

the limitations in a “highly detailed technical manner,”

by reiterating the limitations period in multiple subsections; (3) the statute specified numerous exceptions

to the filing deadline, which did not include equitable

tolling;4 (4) the granting of equitable tolling would require tolling substantive limitations on the amount of

recovery, for which there was no direct precedent (see

Section 6511(b) lookback amount limitations); and

(5) granting equitable tolling could create serious administrative problems by forcing the IRS to respond to

4

The exceptions are laid out at Sections 6511(c) (for extensions signed by the parties), (d)(1) (for bad debts and worthless

securities), (d)(2) (for net operating loss or capital loss carrybacks),

(d)(3) (for foreign tax credits), (d)(4) (for certain other credit carrybacks), (d)(5) and (d)(7) (for certain self-employment taxes),

(d)(6) (for certain income recaptured under qualified plan terminations), and (d)(8) (when uniformed services retired pay is reduced as a result of award of disability compensation).

8

large numbers of late claims. Brockamp, 519 U.S. at

350-53.

In Holland, this Court revisited Brockamp when

addressing whether the 1-year statute of limitations

for asking a federal district court to engage in habeas

review of a state death penalty conviction was subject

to equitable tolling. Holland, 560 U.S. at 634. In distinguishing the habeas statute from the one in Brockamp,

this Court found that the presumption in favor of equitable tolling was not rebutted because: (1) the language of the limitations provision was not unusually

emphatic; (2) the statute did not “reiterate” its time

limitation; (3) the one exception the statute enunciated

(tolling during state collateral review proceedings) was

a necessary procedural measure to account for exhaustion of state remedies; (4) the application of equitable

tolling would not affect the substance of a habeas petitioner’s claim; and (5) the subject matter at issue, habeas corpus, pertains to an area in which equitable

considerations often factor (which “reinforced” the presumption in favor of tolling), unlike the area of refund

claim administration. Holland, 560 U.S. at 635, 646-47.

This Court also noted that, although generous limitations periods may factor in overcoming the Irwin presumption, see Beggerly, 524 U.S. at 48 (12-year period),

the period of one year was not particularly long. Holland, 560 U.S. at 647. This Court also established that

a statute enacted post-Irwin was subject to a “reinforced” Irwin presumption, since Congress was likely

aware at enactment that courts would apply the Irwin

presumption when interpreting the statute. Id. at 646.

9

Here, the language of Section 6330(d)(1) does not

rebut the presumption of equitable tolling.

First, Section 6330(d)(1)’s text is not “unusually

emphatic.” Holland, 560 U.S. at 646. Section 6330(d)(1)

provides only that a taxpayer “may, within 30 days of

a determination under [Section 6330], petition the Tax

Court for review of such determination (and the Tax

Court shall have jurisdiction with respect to such matter).” Section 6330(d)(1). That is no more “emphatic”

than AEDPA’s description of a “1-year period of limitation” applicable to habeas petitions. Cf. Holland, 560

U.S. at 643.

Second, Section 6330(d)(1) is not written in “highly

technical” language that does not easily admit of “implicit exceptions.” Cf. Holland, 560 U.S. at 646. Rather,

Section 6330(d)(1) uses the ordinary language of statutes of limitations everywhere: if a taxpayer wishes to

file a tax court petition, he must do so “within 30 days

of a determination.” Although Section 6330(d) does

provide for one statutory exception to its general rule

(as does the statute involved in Holland) – tolling the

statute of limitations with respect to persons who are

“prohibited by reason of a case under [the Bankruptcy

Code] from filing” for CDP petitions – that one exception is a far cry from the comprehensive list of statutory exceptions set forth by Section 6511 in Brockamp.

See Brockamp, 519 U.S. at 351-52. This Court has already allowed a bankruptcy deadline that has a single

statutory exception to be equitably tolled. Young v.

United States, supra.

10

Third, Section 6330(d)(1) does not repeat its statute of limitations again and again. Holland, 560 U.S.

at 646. Rather, like the AEDPA statute of limitations,

it is contained in one subsection spanning a mere two

lines of the U.S. Code. Cf. id.

Fourth, Section 6330(d)(1) is part of an equitable

area of the Tax Code, CDP, and was enacted subsequent to the Irwin presumption. Thus, as in Holland,

Section 6330(d)(1)’s deadline is subject to a doublyreinforced presumption in favor of equitable tolling.

Fifth, there is nothing in Section 6330(d)(1) that,

like Section 6511(b), provides a substantive limit on

the amount of taxes involved in a CDP suit.

Finally, the Brockamp court emphasized that, because the IRS issues “more than 90 million refunds”

every year, reading an equitable tolling requirement

into Section 6511 would have created “serious administrative problems by forcing the IRS to respond to, and

perhaps litigate, large numbers of late claims.” 519 U.S.

at 352. By contrast, though, the total number of CDP

cases filed in the Tax Court is orders of magnitude

smaller – i.e., in the 12-month period ended May 31,

2020, there were 1,185 CDP petitions filed in the Tax

Court. Nat’l Taxpayer Advocate 2020 Annual Report to

Congress 185 (2020). As set forth in an analysis of the

101 CDP cases filed in the month of January 2018 (set

forth in the Center for Taxpayer Rights’ amicus brief

at the certiorari stage at page 9), only five of those petitions were filed late (or a year included in the petition

involved a late filing). Only one of those petitions

11

involved facts that might give rise to an argument for

equitable tolling. Thus, even if the allowance of equitable tolling of the CDP petition filing deadline encouraged each month a few more late-filed petitions

arguing for equitable tolling, the administrative impact on the IRS would be de minimis.

In Volpicelli v. United States, 777 F.3d 1042, 104446 (9th Cir. 2015), the Ninth Circuit conducted a similar statutory comparison to Brockamp’s statute when

it held that the filing deadline in Section 6532(c) for

Section 7426 wrongful levy suits brought in district

court is entitled to equitable tolling.

Section 6630(d)(1)’s text thus strongly supports

the availability of equitable tolling for its filing deadline.

B. Section 6330(d)(1)’s Context Supports

the Availability of Equitable Tolling.

1. Section 6330(d)(1) Is Not an Internal

Appeal Deadline and Impacts Mostly

Pro Se Litigants.

In Sebelius v. Auburn Regional Med. Cntr., 568

U.S. 145 (2013), this Court held that the Irwin presumption does not apply in all tribunals. In Auburn,

the Court found the 180-day statutory deadline for

Medicare providers to file for an administrative hearing is not subject to equitable tolling. Auburn, 568 U.S.

at 158-59. The Court noted that it generally applied

the Irwin presumption in favor of equitable tolling to

filing deadlines in Federal courts and had never before

12

applied the Irwin presumption to an agency’s internal appeal deadline. Id. The Court distinguished the

statute at issue from the types of “remedial” statutory schemes where the Irwin presumption had been

applied, including schemes which were “ ‘unusually

protective of claimants’ ” and schemes where “ ‘laymen,

unassisted by trained lawyers, initiate the process.’ ”

Id. at 159-60 (citations omitted). Instead, the Court

pointed out that the statutory scheme in question involved “ ‘sophisticated’ institutional providers assisted

by legal counsel” that were “repeat players who elect to

participate in the Medicare system. . . .” Id. (citation

omitted). The Court thus found that the Irwin presumption did not apply to “administrative appeals of

the kind here considered.” Id.

It would be a mistake to interpret Auburn too

broadly. The Court did not hold that Irwin never applied in non-Article III entities. That this Court did not

intend to create a broad rule is evident from Kwai Fun

Wong, 575 U.S. at 408-09, where this Court subsequently held that under the Federal Tort Claim Act,

the 2-year period in which to file an administrative tort

claim with a Federal agency was subject to the Irwin

presumption.

Section 6330(d)(1) does not set an “internal appeal

deadline.” Cf. 568 U.S. at 158. The Tax Court is not an

adjudicatory body within an agency, but is a court of

record under Article I of the Constitution. Section

7441.

13

Moreover, Section 6330 – unlike the statute at issue in Auburn – does not involve sophisticated, repeatplayer litigants who have “elect[ed] to participate” in a

government program. Most taxpayers who file CDP petitions in the Tax Court do so pro se. See, e.g., Nat’l Taxpayer Advocate 2020 Annual Report to Congress 188

(2020) (reporting that in the year ended May 31, 2020,

68% of the CDP cases that were litigated were pro se).

“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.

Addressing this issue in Myers v. Commissioner,

928 F.3d 1025, 1037 (D.C. Cir. 2019) (involving the filing deadline under Section 7623(b)(4) for Tax Court

whistleblower award petitions), the D.C. Circuit

agreed that the Tax Court was not the kind of tribunal

in which equitable tolling would be barred.

2. Section 6330’s Subject Matter Is Equitable.

Independently, Section 6330’s subject matter – unlike that of the statute at issue in Brockamp – is equitable. CDP is suffused with equitable determinations.

The central purpose of CDP is to allow taxpayers a forum to “raise any relevant issue” as to why the IRS

should forbear from levying – an essentially equitable

inquiry. Section 6330(c)(2)(A) (emphasis added); cf.

Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (“The

essence of equity jurisdiction has been the power of

14

the Chancellor to do equity and to mould each decree

to the necessities of the particular case.”). And as a result, CDP requires the IRS to ask multiple distinctively equitable questions:

•

In a CDP hearing, an IRS Appeals Officer

must consider “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.” Section

6330(c)(3)(C). This balancing test is essentially an equitable determination.

•

A taxpayer in CDP may raise, inter alia, “appropriate spousal defenses” to liability. Section 6330(c)(2)(A)(i). These spousal defenses

typically implicate the so-called “innocentspouse” provisions of Section 6015, which provide for innocent-spouse relief only if it would

be “inequitable” not to relieve a spouse from

joint and several liability. Section 6015(b) and

(f ).

•

A taxpayer in CDP may offer the IRS a “collection alternative.” Section 6330(c)(2)(A)(iii).

Those collection alternatives can include offers-in-compromise, some of which are based

on a taxpayer’s inability to make full payment

and others of which are grounded in equity

and public policy as applied to the particular

assessed taxes. 26 C.F.R. Section 301.71221(b)(3).

15

3. The Fact That Section 6330(d)(1) Is

Contained in the Tax Code Does Not

Preclude the Equitable Tolling of Its

Deadline.

After noting that the subject matter of refund

claims involved “tax collection,” this Court in Brockamp

observed, in passing dicta, that “[t]ax law . . . is not normally characterized by case-specific exceptions reflecting individualized equities.” 519 U.S. at 352.

First, the government has tried to take this

Brockamp sentence and expand it to ask lower courts

to hold that there can be no equitable tolling anywhere

in the Tax Code. To date, the government has been unsuccessful in this argument. In Volpicelli, the Ninth

Circuit wrote: “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.” 777

F.3d at 1046. Accord Flight Attendants Against UAL

Offset v. Commissioner, 165 F.3d 572, 577 (7th Cir.

1999) (dicta; case involved Tax Court pension plan

declaratory judgment jurisdiction at Section 7476).

Myers also allowed the equitable tolling of the Section

7623(b)(4) Tax Court filing deadline.

Second, the government has not been consistent in

its argument. In Doe v. United States, 398 F.3d 686 (5th

Cir. 2005), the Fifth Circuit rejected a government attempt to subject the assessment statute of limitations

at Section 6501 – one that runs against the government – to equitable tolling.

16

Third, while this Court’s Brockamp dicta appears

intended to indicate that there are many exceptions,

the dicta allows a person with a casual understanding

of tax law to miss its equitable aspects. Congress has

kept adding equitable provisions to the Tax Code after

the Brockamp decision.

The following shows how much equity there was

in tax collection before Brockamp:

1.

Under the doctrine of “equitable recoupment”

– available in the district court and the Court

of Federal Claims – overpayments of taxes

that are time-barred from refund under Section 6511 can be applied to reduce timely tax

assessments where the taxpayer would be

otherwise taxed inconsistently on the same

transaction. Stone v. White, 301 U.S. 532

(1937); Bull v. United States, 295 U.S. 247

(1935).

2.

In Enochs v. Williams Packing & Navigation Co., 370 U.S. 1 (1962), this Court recognized a judicial equitable exception to the

anti-injunction act of Section 7421(a). In Williams Packing, this Court stated that, despite

the words of the act, “if it is clear that under

no circumstances could the Government ultimately prevail, the central purpose of the

Act is inapplicable, and under the [Miller v.

Standard] Nut Margarine [Co., 294 U.S. 498

(1932),] case, the attempted collection may be

enjoined if equity jurisdiction otherwise exists.” Id. at 7.

17

3.

In United States v. Rodgers, 461 U.S. 677

(1983), this Court considered whether Section

7403 empowered a district court to order the

sale of a family home in which a delinquent

taxpayer had an interest at the time he incurred his tax indebtedness. The taxpayer’s

spouse (who did not owe any of that indebtedness) also had a Texas “homestead” right. This

Court held that “district courts may exercise

a degree of equitable discretion in § 7403 proceedings.” Id. at 709.

4.

In 1971, Congress enacted an “innocent

spouse” provision at Section 6013(e) to mandate relief from joint and several income tax

liability in the case of certain large omissions

of unreported income. Sec. 411, Pub. L. 98-369,

98 Stat. 790. The statute directed relief for an

innocent spouse if a number of conditions

were met, including that “taking into account

all . . . facts and circumstances, it is inequitable to hold the other spouse liable for the deficiency in tax.” Former Section 6013(e)(1)(C) as

originally adopted, before later amendment.

(Emphasis added.)

5.

In 1984, Congress amended the estimated tax

penalty provision to provide for a waiver “with

respect to any underpayment to the extent the

Secretary determines that by reason of casualty, disaster, or other unusual circumstance

the imposition of such addition to tax would

be against equity and good conscience.” Section 6654(e)(3)(A). (Emphasis added.) The Tax

Court has granted the waiver in equitable

cases of serious illness (AIDS) and/or mental

18

disability. Meyer v. Commissioner, T.C. Memo.

2003-12; Shaffer v. Commissioner, T.C. Memo.

1994-618; Carnahan v. Commissioner, T.C.

Memo. 1994-163.

6.

The late-filing and late-payment penalties at

paragraphs (1), (2), and (3) of Section 6651(a)

have long had “reasonable cause and not willful neglect” exceptions. This Court, in United

States v. Boyle, 469 U.S. 241 (1985), indicated

that these exceptions are likely met in equitable situations. In Boyle, this Court noted that

the IRS, in most cases, did not impose the penalties when the circumstances that caused the

taxpayer to file or pay late were beyond the

taxpayer’s control. Id. at 248 n.6.

7.

In 1986, Congress amended Section 6404 by

adding a subsection (e) that allowed the IRS

to abate interest attributable to an error or

delay of an IRS officer or employee in performing a “ministerial” act. Sec. 1563(a), Pub. L.

99-514, 100 Stat. 2762. Congress said it did

“not intend that this provision be used routinely to avoid payment of interest.” S. Rep.

99-313 at 208. Rather, Congress intended the

section to be used in instances in which an error or delay in performing a ministerial act resulted in the imposition of interest, and the

failure to abate the interest “would be widely

perceived as grossly unfair”; id. – i.e., where it

would be perceived as inequitable. In 1996,

Congress expanded the interest abatement

authority to include an error or delay in performing a “managerial” act. Sec. 301(a)(2),

Pub. L. 104-168, 110 Stat. 1457.

19

8.

The IRS has had long-standing power to provide taxpayers with extensions to file their tax

returns; see Section 6081(a); and with extensions to meet election deadlines – deadlines

that can either be in the area of tax collection

or in the substantive calculation of the assessable amount of tax. One of the current regulations at 26 C.F.R. Section 301.9100-1 et seq.

governing requesting such so-called “9100

relief ” lists acceptable excuses, including:

“Failed to make the election because of intervening events beyond the taxpayer’s control.” 26 C.F.R. Section 301.9100-3(b)(1)(ii).

This sentence essentially acts as a blanket equitable exception. Moreover, the regulations

even provide for certain automatic extensions

that affect substantive tax liability – including extending (1) the 15-month time limit in

which to file an exemption application for a

Section 501(c)(3) organization under Section

508, (2) the time limit in which to elect to be

treated as a homeowner’s association under

Section 528, and (3) the time limit in which to

elect to adjust basis on partnership transfers

and distributions under Section 754. 26 C.F.R.

Section 301.9100-2(a)(2).

One of the provisions described above, waiving the

estimated tax penalty, and one described below, waiving the IRA rollover, contain explicit directions to the

IRS to apply equity to time deadlines. In sum, even before this Court’s 1997 Brockamp opinion, both through

explicit Congressional authorization and judicial and

regulatory exceptions, the collection and even imposition of taxes often involved equitable determinations.

20

Since 1997, Congress has increasingly called on

the IRS and the courts to make equitable determinations in tax collection and liability matters.

1.

In 1998, Congress implemented a partial overruling of Brockamp, amending Section 6511 to

add a new subsection (h) providing for a suspension of its deadlines “during the period of

such individual’s life that such individual is

financially disabled.” Subsection (h) defines

“financially disabled” as arising from a medically-determinable physical or mental impairment meeting certain requirements. Sec.

3202(a), Pub. L. 105-206, 112 Stat. 740-41.

Congress, in the Conference Committee Report, called this provision a form of “equitable

tolling.” H.R. Rep. No. 105-599, at 255 (“The

[provision] permits equitable tolling of the

statute of limitations. . . .”).

2.

In 1998, Congress repealed Section 6013(e)

and implemented a greatly-expanded “innocent spouse” provision at Section 6015. Sec.

3201(a), Pub. L. 105-206, 112 Stat. 734-40.

Section 6015(b) retained the condition of the

former Section 6013(e) that, “taking into account all the facts and circumstances, it is inequitable to hold the other individual liable for

the deficiency in tax.” Section 6015(b)(1)(D).

Congress provided for even broader relief by

adopting Section 6015(f ). Subsection (f ) provides that “if – (1) taking into account all the

facts and circumstances, it is inequitable to

hold the individual liable for any unpaid tax

or deficiency . . . ; and (2) relief is not available

to such individual under subsections (b) or (c),

21

the Secretary may relieve such individual of

such liability.” In 2005, the National Taxpayer

Advocate (Ms. Olson) reported to Congress

that the IRS was receiving approximately

50,000 requests for relief under Section 6015

a year. Nat’l Taxpayer Advocate 2005 Annual

Report to Congress (2005) at 329. This is a significant amount of equitable tax collection determinations being made annually – indeed,

more than all petitions filed in the Tax Court

under all of its jurisdictions annually. For

comparison, for the fiscal year ended 2005

(which was typical of pre-COVID years), taxpayers filed 23,551 Tax Court deficiency petitions under Section 6213(a), 700 Tax Court

CDP petitions under Section 6330(d)(1), and

587 Tax Court innocent spouse petitions under Section 6015(e)(1)(A). H. Dubroff & B.

Hellwig, “The United States Tax Court – An

Historical Analysis” (2d ed. 2014) at 907.

3.

In 1998, Congress enacted new standards and

procedures for offers-in-compromise under

Section 7122 by which taxpayers and the IRS

can compromise assessed liabilities with finality. Sec. 3462, Pub. L. 105-206, 112 Stat.

764-67. Language in the Conference Committee Report encouraged the IRS to consider

“factors such as equity, hardship, and public

policy where a compromise of an individual

taxpayer’s income tax liability would promote

effective tax administration.” H.R. Rep. No.

105-599, at 289 (emphasis added). The IRS

later adopted regulations providing that, even

when an individual taxpayer could pay his

or her income taxes in full, “the IRS may

22

compromise to promote effective tax administration where compelling public policy or equity considerations identified by the taxpayer

provide a sufficient basis for compromising

the liability. Compromise will be justified only

where, due to exceptional circumstances, collection of the full liability would undermine

public confidence that the tax laws are being

administered in a fair and equitable manner.”

26 C.F.R. Section 301.7122-1(b)(3)(ii) (emphasis added). In the fiscal year ended September

30, 2020, taxpayers submitted 44,809 offersin-compromise to the IRS; in the same period,

the IRS accepted 14,288 offers. IRS Data

Book, 2020 at 57, available at www.irs.gov.

4.

In 1998, Congress also created CDP, which, as

noted above, is really a place where the IRS is

expected to do equity with individual taxpayers, looking at each person’s ability to pay

and various collection alternatives. Sec. 3401,

Pub. L. 105-206, 112 Stat. 746-50. In the fiscal

year ended September 30, 2020, the Independent Office of Appeals received 25,334

taxpayer requests for CDP hearings. IRS

Data Book, 2020 at 62 (Table 27).

5.

In a provision actually affecting the computation of assessable tax – not tax collection –

in 2001, Congress amended the IRA provisions to allow the IRS to waive the 60-day

window in which to roll over an IRA distribution “where the failure to waive such requirement would be against equity or good

conscience, including casualty, disaster, or

other events beyond the reasonable control of

23

the individual subject to such requirement.”

Section 408(d)(3)(I), added by sec. 644, Pub. L.

107-16, 115 Stat. 123 (emphasis added).

6.

In 2014, Congress further expanded judicial

equity in tax collection when it resolved a Circuit split by amending Section 6214(b) to provide that “the Tax Court may apply the

doctrine of equitable recoupment to the same

extent that it is available in civil tax cases before the district courts of the United States

and the United States Court of Federal

Claims.” Sec. 858, Pub. L. 109-280, 120 Stat.

1020.

Amici hope that this Court will indicate in its

opinion that, notwithstanding the above-quoted dicta

in Brockamp, there is no per se prohibition against consideration of equitable considerations in appropriate

provisions in the Tax Code.

For these reasons, Section 6630(d)(1)’s context also

supports the availability of equitable tolling in CDP

cases before the Tax Court.

II.

THERE ARE TYPICAL LATE FILINGS IN

THE TAX COURT AS TO WHICH EQUITABLE TOLLING COULD EXPECT TO APPLY.

The Tax Court did not entertain any evidence on

what circumstances in this case might give rise to equitable tolling, given the Tax Court’s view that the

CDP petition filing deadline is jurisdictional. This

section discusses typical situations where equitable

24

tolling would be expected to apply if Tax Court filing

deadlines could be tolled. Since there are only a modest

number of CDP cases where tolling would apply, the

section includes cases that arise under the Tax Court’s

deficiency and innocent spouse provisions, as well.

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).

All of these grounds periodically occur in the case

of Tax Court filing deadlines.

A. The IRS Sometimes Actively Misleads

Taxpayers About Tax Court Filing

Deadlines.

The IRS sometimes makes mistakes, and these

mistakes can actively mislead taxpayers into filing Tax

Court petitions on the wrong dates.

Sometimes, the IRS misleads taxpayers by sending notices with the wrong dates. For example, because

of COVID-19 interruptions to IRS operations, the IRS

25

belatedly sent out millions of notices in 2020 without

changing dates thereon. See Nat’l Taxpayer Advocate

2020 Annual Report to Congress v (2020) (“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-05-09200063 (Sept. 3, 2020). Although it is not known whether

any of these misdated notices specifically caused a taxpayer to miss a Tax Court filing deadline under Section

6330(d)(1), the possibility for confusion is obvious.

In other cases, an IRS employee instructs a taxpayer to file a petition on the wrong date. For example,

in Rubel v. Commissioner, 856 F.3d 301 (3d Cir. 2017),

the IRS gave a taxpayer an incorrect deadline for filing

a Tax Court petition in written correspondence. Id. at

303-04. Likewise, in Matuszak v. Commissioner, 862

F.3d 192 (2d Cir. 2017), an IRS employee orally gave an

unrepresented taxpayer the wrong last date to file a

petition. Id. at 193-94. In Nauflett v. Commissioner, 892

F.3d 649 (4th Cir. 2018), an employee of the IRS’s

Taxpayer Advocate Service orally gave another unrepresented taxpayer an incorrect final filing date. Id.

at 650-51. Although these cases arose in the innocent

spouse context, rather than under Section 6330, they

illustrate the contexts in which a failure to allow for

equitable tolling can be outcome-determinative for litigants.

26

The IRS sometimes sends letters to taxpayers

with misleading or confusing language – language

that at least arguably could support an equitable

tolling claim. CDP provides a particularly apt example. Section 6330(d)(1) allows petitions to the Tax

Court “within 30 days of a determination under this

section”; i.e., within 30 days after a notice of determination has been issued. 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 at some point, the IRS

changed the language in its model notice of determination to suggest that taxpayers had 31 days, rather than

30 days, to file a petition: “if you want to dispute [your]

determination in court,” this language read, “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.” See, e.g., Duggan v. Commissioner, 879 F.3d

1029, 1034 (9th Cir. 2018) (reprinting the language;

emphasis added). At least eight pro se taxpayers, confused by this language, mailed petitions to the Tax

Court on the 31st rather than the 30th day after the

notice was mailed.5

5

Along with the petitioner in Duggan, the relevant cases are:

Cunningham v. Commissioner, 716 F. App’x 182 (4th Cir. 2018);

Swanson v. Commissioner, T.C. Docket No. 14406-15S (order

27

To be clear, none of these cases are ones in which

individual taxpayers are definitely entitled to equitable tolling if that doctrine was available. In one of the

Section 6330(d)(1) cases described above, for example,

the Fourth Circuit found that the IRS language was

not confusing enough to justify equitable tolling. Cunningham v. Commissioner, 716 F. App’x 182 (4th Cir.

2018). But the Ninth Circuit declined to even consider

the taxpayer’s equitable-tolling arguments, reasoning

that Section 6330(d)(1)’s deadline was jurisdictional.

Duggan, 879 F.3d at 1034.

B. Extraordinary Circumstances Sometimes Prevent Taxpayers From Meeting

Tax Court Filing Deadlines.

In other cases, taxpayers experience extraordinary circumstances that prevent them from timely filing petitions with the Tax Court. Such cases present

another set of scenarios in which a taxpayer might be

deserving of equitable tolling.

dated Jan. 14, 2016); Pottgen v. Commissioner, T.C. Docket No.

1410-15L (order dated Mar. 4, 2016); Wallaesa v. Commissioner,

T.C. Docket No. 1179-17L (order dated Apr. 20, 2017); Saporito v.

Commissioner, T.C. Docket No. 8471-17L (order dated May 31,

2017); Integrated Event Management, Inc. v. Commissioner, T.C.

Docket No. 27674-16SL (order dated May 31, 2017); Protter v.

Commissioner, T.C. Docket No. 22975-15SL (order dated Sept. 26,

2017). In Swanson, the Tax Court did not mention the argument

that the taxpayer was misled by his notice’s language. But an examination of the notice contained in the Tax Court’s files shows

that Mr. Swanson, in explanation of his late filing, quadruple-underlined the words “day after” in his notice of determination.

28

Sometimes, taxpayers cannot file timely petitions

with the Tax Court because they do not timely receive

mail from the IRS. For example:

•

In Atuke v. Commissioner, T.C. Docket No.

31680-15SL (order dated Apr. 15, 2016), a notice of determination under Section 6330(d)(1)

was mailed to a taxpayer residing in Nairobi,

Kenya. The notice did not arrive in Kenya until after the taxpayer’s 30-day window to petition the Tax Court had passed. The Tax Court

dismissed the taxpayer’s case for lack of jurisdiction without considering arguments for or

against equitable tolling.

•

In Castillo v. Commissioner, T.C. Docket No.

18336-19L (order dated Mar. 25, 2020), the

IRS mailed a notice of determination to a taxpayer’s last known address. The USPS lost the

notice and never delivered it. The Tax Court

dismissed the taxpayer’s case for lack of jurisdiction. Castillo is currently pending in the

Second Circuit, on hold pending the outcome

in Boechler.

•

In Sarrell v. Commissioner, 117 T.C. 122

(2001), Appeals issued a CDP notice of determination on March 30, 2001, addressed to a

taxpayer in Israel. The taxpayer asserted that

because of intervening Jewish holidays, including Passover and Holocaust Memorial

Day, and slow rural mail delivery in Israel, he

did not receive the notice until April 24, 2001.

He also asserted additional holidays including

Israeli Memorial Day and Israeli Independence Day further delayed the mailing of the

29

petition to the Court. He furnished the Court

with a copy of what appeared to be an Israel

Postal Authority receipt indicating that he

mailed his petition to the Court on Monday,

April 30, 2001 (the 30th day, after applying

the extension rule of Section 7503 for weekends and holidays). The Court received and

filed his petition on May 7, 2001. The Tax

Court dismissed the proceeding for lack of jurisdiction because the Section 7502 timely mailing rules do not apply to a foreign postmark.6

These are paradigmatic cases of “inadequate notice” where equitable tolling is at least possibly appropriate. Baldwin Cty. Welcome Center v. Brown, 466 U.S.

147, 151 (1984) (per curiam).

In other cases, taxpayers experience serious illnesses or other life events that reasonably prevent

them from filing petitions within Section 6330(d)(1)’s

30-day filing window. For example, in Dunlap v. Commissioner, T.C. Docket No. 816-18L (order dated Mar.

15, 2018), a taxpayer claimed that a “severe family illness” caused her to file a late Tax Court CDP petition.

The Tax Court did not investigate the taxpayer’s allegation, since it maintained that Section 6330(d)(1)’s

6

Given the mail delays currently occurring in the United

States, it is not just taxpayers overseas who face the problem.

U.S. Rep. Bill Pascrell, Jr. (D-NJ-09), the Chairman of the House

Ways and Means Subcommittee on Oversight, has asked the IRS

for information to assess how systemic mail delays at the USPS

may impact IRS operations, tax filings and refunds for Americans.

See Press Release, U.S. Rep. Bill Pascrell, Jr., Pascrell Probes Mail

Delay Impact on IRS and Tax Refunds (Oct. 26, 2021), https://

pascrell.house.gov/news/documentsingle.aspx?DocumentID=4904.

30

deadline was jurisdictional. If the taxpayer had in fact

experienced a severe family illness, this illness could

have given the Tax Court good cause to toll Section

6330(d)(1)’s statute of limitations. Cf. Boyle, 469 U.S. at

243 n.1 (1985) (explaining that “death or serious illness of the taxpayer or a member of his immediate

family” can amount to reasonable cause for exclusion

from a late filing penalty).

Other extraordinary circumstances prevent taxpayers from timely filing necessary documents with

the IRS or the Tax Court. Consider Mannella v. Commissioner, 631 F.3d 115 (3d Cir. 2011). In Mannella, a

taxpayer filed with the IRS a request for innocent

spouse relief four to six months out of time set by an

IRS regulation. Id. at 119. She filed out of time because

her husband had hidden from her IRS mail arriving in

the house, which prevented her from becoming aware

of the outstanding joint debt. See id. Although Mannella is not itself an equitable tolling case involving the

filing of a Tax Court petition, its facts illustrate the

kind of scenarios that might give rise to equitable tolling. See id.

The ongoing COVID-19 pandemic offers many additional examples of circumstances in which equitable

tolling might potentially be appropriate. For example,

a person hospitalized and intubated due to COVID-19

for more than 30 days could not plausibly be expected

to file a Tax Court petition while in the ICU. Mutatis

mutandis for a taxpayer caring for a very sick child or

relative.

31

In short: equitable tolling is at least arguably

appropriate when “extraordinary circumstances . . .

[stand] in the way of timely filing.” Menominee Indian

Tribe of Wis. v. United States, 577 U.S. 250, 251 (2016).

A significant number of these cases arise in the context

of Section 6330(d)(1).

C. Pro Se Taxpayers Sometimes Timely

File Tax Court Petitions in the Wrong

Forum.

Pro se taxpayers not infrequently timely mail

their Tax Court petitions to the IRS office that issued

their notice of deficiency or determination. In the case

of veterans benefits denials that should be appealed to

the Article I Court of Appeals for Veterans Claims, the

courts allow equitable tolling under similar circumstances. See, e.g., Bailey v. Principi, 351 F.3d 1381, 1382

(Fed. Cir. 2003); Santana-Venegas v. Principi, 314 F.3d

1293, 1298 (Fed. Cir. 2002).

For example:

•

In Haitsuka v. Commissioner, T.C. Docket No.

14495-15L (order dated Oct. 9, 2015), a taxpayer with limited English proficiency timely

mailed a CDP petition to the IRS. The IRS

sent the petition back to him, and he mailed it

to the Tax Court.

•

In Gitman v. Commissioner, T.C. Docket No.

5804-19 (order dated Aug. 8, 2019), the taxpayer timely mailed a deficiency petition to

the Tax Court’s New York City courtroom

32

instead of the Clerk in Washington, D.C., and

it did not get to the Clerk’s Office within the

90-day period of Section 6213(a).

•

In Islam v. Commissioner, T.C. Docket No.

14099-19S (order dated Feb. 28, 2020), the

taxpayers – who speak English as a second

language – timely mailed a deficiency petition

to the IRS, but it was not received by the Tax

Court within the 90-day period of Section

6213(a).

•

In Rosenthal v. Commissioner, T.C. Docket No.

18392-19S (order dated Dec. 26, 2019), the

taxpayers erroneously but timely mailed their

deficiency petition to the IRS Laguna Nigel office that issued their notice. Weeks later, the

office forwarded their petition to the Tax

Court.

In each case, the Tax Court dismissed the petition for

lack of jurisdiction. Cases like Rosenthal are common

enough that the IRS has formally instructed its employees to quickly forward timely petitions erroneously

sent to the IRS onwards to the Tax Court. See Internal

Revenue Manual Section 4.8.9.25.1 (July 9, 2013).

Finally, another provision in the Internal Revenue

Manual, which provides guidance to IRS employees,

relating to timely filing in the wrong forum in CDP, undermines the government’s argument that the IRS

would have severe administrative problems dealing

with equitable tolling of the Section 6330(d)(1) filing

deadline.

33

In her opposition to the petition for certiorari in

this case (at page 27), the Solicitor General wrote:

Allowing equitable tolling for Section 6330(d)(1)

petitions would significantly delay the IRS’s

collection of taxes. Without equitable tolling, a

clear end date exists for the period during

which the IRS is prohibited from collecting by

levy: the date when the 30-day filing period in

Section 6330(d)(1) expires. If equitable tolling

were allowed, a delinquent taxpayer might be

able to prolong the suspension period by filing

a tardy petition in the Tax Court and then

seeking to excuse that failure to file a timely

petition on equitable-tolling grounds.

Section 6330(a) provides a different 30-day period in

which the taxpayer can request a CDP hearing at the

IRS Independent Office of Appeals. Section 7502 provides that a timely mailed document is considered

timely filed if received after the due date, but only if

the envelope bearing the filing is “properly addressed

to the agency, officer, or office with which the return,

claim, statement, or other document is required to be

filed.” Section 7502(a)(2)(B).

Notices of Intent to Levy (“NOILs”) – one of the

two “tickets” to CDP hearings – are issued either by

individual IRS Revenue Officers assigned to collect

taxes from the taxpayer or by the IRS computers.

NOILs typically show addresses (1) of the office issuing

the NOIL, (2) where Forms 12153 hearing requests

should be mailed, and (3) where the taxpayer may send

payments. These multiple addresses are confusing,

34

and taxpayers frequently mail the Form 12153 to one

of the wrong addresses. See Webber v. Commissioner,

T.C. Docket No. 14307-18L (order dated June 7, 2019),

where the IRS moved to dismiss a Tax Court case because the taxpayer timely mailed his CDP request erroneously to the payment address.

The judge complained of the confusion created by

the NOIL having multiple addresses. The IRS withdrew its motion to dismiss and subsequently, the IRS

amended the Internal Revenue Manual to provide that

if the taxpayer timely mailed the Form 12153 to any

address shown in the NOIL or timely mailed the form

to the Revenue Officer handling the taxpayer’s case it

would accept the form as timely. Internal Revenue

Manual Section 8.22.5.3.1 (Aug. 31, 2020).

IRS computers may be programmed to start levying shortly after the 30-day period in Section 6330(a)

expires without receipt of a Form 12153 at the correct

address, and IRS employees may take time notifying

the Office of Appeals of a timely filing in the wrong

place. Because the IRS can easily deal with this by

retroactively treating the request as timely, stopping

collection, and recalculating the collection statute of

limitations, the IRS should not be heard in this case

when it argues that there would be serious administrative problems with allowing equitable tolling of the

Section 6330(d)(1) Tax Court filing deadline or in general allowing equitable tolling anywhere in the Tax

Code.

35

And, of course the Tax Court has ample power to

deter the filing of late petitions containing frivolous assertions of equitable tolling. See Section 6673(a)(1)(A)

(authorizing the Tax Court to impose penalties of up to

$25,000 for petitions filed “primarily for delay”).

As shown by the cases in Section II, petitioners

present the Tax Court with a small but steady number

of cases that merit equitable tolling.

---------------------------------♦---------------------------------

CONCLUSION

For these reasons, this Court should hold that

Section 6330(d)(1)’s filing deadline is both not jurisdictional and subject to equitable tolling in appropriate

cases.

Respectfully submitted,

T. KEITH FOGG

TAX CLINIC AT THE LEGAL

SERVICES CENTER OF

HARVARD LAW SCHOOL

122 Boylston Street

Jamaica Plain, MA 02130

617.390.2532

kfogg@law.harvard.edu

November 2021

CARLTON M. SMITH

Counsel of Record

255 W. 23rd Street,

Apt. 4AW

New York, NY 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.

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