IRS Points Out Recent Ninth Circuit Decision on Jurisdiction

June 18, 2020

Michael E. Gans, Esquire
Clerk, U.S. Court of Appeals for the Eighth Circuit
Thomas F. Eagleton Court House
111 S. 10th Street, Room 24.329
St. Louis, MO 63102

Re: Boechler, P.C. v. Commissioner of Internal Revenue (8th Cir. — No. 19-2003)

Dear Mr. Gans:

Pursuant to Fed. R. App. P. 28(j), the Commissioner encloses the Ninth Circuit's recent published opinion in Organic Cannabis Foundation, LLC, DBA Organicann Health Center v. Commissioner, Slip Op. (June 18, 2020), affirming the favorable decision of the Tax Court dismissing Organic Cannabis's petition, filed one-day late, for lack of jurisdiction under I.R.C. § 6213(a). Organic Cannabis is supportive of the Commissioner's position in Boechler, which was argued on June 17, 2020.

In the instant case, the Tax Court held that the 30-day period in I.R.C. § 6330(d)(1) for filing a petition seeking review of a collection-due-process notice of determination is jurisdictional and therefore not subject to equitable extension. In Organic Cannabis, the Ninth Circuit, after considering the same arguments pressed by the appellant as well as the same amicus as in this case, held that the time-limit in I.R.C. § 6213(a) to file a petition seeking a redetermination of a notice of deficiency was jurisdictional. Slip Op. at *19, *26. In so holding, the Ninth Circuit rejected the argument that “the Supreme Court's recent jurisprudence addressing when statutory deadlines should be deemed jurisdictional has undermined [the court's] settled precedent and required [it] to reach a different conclusion. . . .” Id. at *20. The Ninth Circuit held that “[c]onsidering the 'text, context, and relevant historical treatment' of the provision at issue,' . . . Congress has indeed done 'something special' to 'plainly show' that § 6213's time limit is 'imbued . . . with jurisdictional consequences.” Id. at *21.

Sincerely,

JANET A. BRADLEY
Attorney
Appellate Section

Enclosure