Business Challenges Tax Court Filing Deadline in Supreme Court

Northern California Small Business Assistants, Inc.,
Petitioner,
v.
Commissioner of Internal Revenue,
Respondent.

In the Supreme Court of the United States

On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Douglas L. Youmans
Counsel of Record
Wagner Kirkman Blaine Klomparens & Youmans LLP
10640 Mather Blvd., Suite 200
Mather, CA 95655
(916) 920-5286
dyoumans@wkblaw.com

Robin L. Klomparens
Wagner Kirkman Blaine Klomparens & Youmans LLP
10640 Mather Blvd., Suite 200
Mather, CA 95655
(916) 920-5286
rklomparens@wkblaw.com

QUESTION PRESENTED

I. Is 26 U.S.C. § 6213(a)'s deficiency petition (90-day) Filing Deadline jurisdictional (such that it is not subject to equitable tolling) under current Supreme Court case law?

CORPORATE DISCLOSURE STATEMENT

The Petitioner entity does not have a parent corporation or any publicly held company owning 10% or more of the corporation's stock.

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TABLE OF CONTENTS

QUESTION PRESENTED

CORPORATE DISCLOSURE STATEMENT

OPINIONS BELOW

JURISDICTION

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

FACTUAL AND PROCEDURAL BACKGROUND

REASONS FOR GRANTING THE WRIT

CONCLUSION

APPENDIX 1: 9th Circuit Court of Appeals Opinions dated 6/18/20

APPENDIX 2: 9th Circuit Court of Appeals Denial of Request for Rehearing and Dated 8/28/20

APPENDIX 3: 9th Circuit Mandate dated 9/8/20

APPENDIX 4: Tax Court Order: Order of dismissal for lack of jurisdiction served 7/25/2017

APPENDIX 5: Relevant Constitutional and Statutory Provisions Involved

TABLE OF AUTHORITIES

Cases

Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)

Becker v. Montgomery, 532 U.S. 757 (2001)

Bowles v. Russell, 551 U.S. 205 (2007)

Eberhart v. United States, 546 U.S. 12 (2005)

Fort Bend Cty. v. Davis, 139 S. Ct. 1843 (2019)

Gonzalez v. Thaler, 565 U.S. 134, 141 (2012)

Gonzalez, 565 U.S. at 139-141

Gonzalez, 565 U.S. at 142 n.3

Gonzalez, 565 U.S. at 145

Gonzalez, 565 U.S. at 146-147

Guralink, 146 T.C. at 231

Guralnik v. Commissioner, 146 T.C. 230, 231 (2016)

Guralnik, 146 T.C. at 243

Hamer v. Neighborhood Hous. Servs, 138 S. Ct. 13 (2017)

Hamer, 138 S. Ct. at 20 n.9

Henderson v. Shinseki, 562 U.S. 428 (2011)

Henderson, 562 U.S. at 436

Irwin v. Dep't of Veterans Affairs, 498 U.S. 89 (1990)

John R. Sand & Gravel Co. v. United States, 552 U.S. 130 (2008)

Kontrick v. Ryan, 540 U.S. 443 (2004)

Kontrick v. Ryan, supra, 540 U.S. at 452

Kontrick, 540 U.S. at 455

Kwai Fun Wong, 575 U.S. at 410-411

Kwai Fun Wong, 575 U.S. at 407-408

Kwai Fun Wong, 575 U.S. at 409

Kwai Fun Wong, 575 U.S. at 410

Kwai Fun Wong, 575 U.S. at 416

Kwai Fun Wong. 575 U.S. at 408

Napoliello v. Comm'r, 655 F.3d 1060, 1063 (9th Cir. 2011)

Reed Elsevier, Inc, 559 U.S. at 168

Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010)

Reed Elsevier, Inc., 559 at 173-174

Reed Elsevier, Inc., 559 U.S. at 168

Scarborough v. Principi, 541 U.S. 401 (2004)

Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (2013)

Sebelius, 568 U.S at 153-154

Sebelius, 568 U.S. at 153

Sebelius, 568 U.S. at 153-154

Sebelius, 568 U.S. at 154

Tilden v. Commissioner, 846 F.3d 882, 884 (7th Cir. 2017)

Tilden, 846 F.3d at 886

Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.Comm. of Adjustment, 558 U.S. 67, 82 (2009) (citing John R. Sand, 552 U.S. at 132 and Bowles, 551 U.S. at 209-211)

Union Pac. R.R., 558 U.S. at 82

United States v. Kwai Fun Wong, 575 U.S. 402 (2015)

Statutes

Internal Revenue Code § 280E

28 U.S.C. § 1254(1)

Internal Revenue Code § 6213(a)

Internal Revenue Code § 6212

Internal Revenue Code § 6212(b)(1)

Internal Revenue Code § 6213

Internal Revenue Code § 6213(a)

Internal Revenue Code § 6214(a)

Internal Revenue Code § 6243(a)

Internal Revenue Code § 6330(d)

Internal Revenue Code § 6330(d)(1)

Internal Revenue Code § 7421(a)

Internal Revenue Code § 7459(d)

Internal Revenue Code § 7482(a)(1), (b)(1)(B)

Other Authorities

§ 274(a) of the Revenue Act of 1924

§ 274(a) and (e) of the Revenue Act of 1926

Harold Dubroff & Brant J. Hellwig, The United States Tax Court: An Historical Analysis 122 (2d ed. 2014)

Technical and Miscellaneous Revenue Act of 1988 (See Table of Contents, Appendix for full cite)

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Petitioner Northern California Small Business Assistants, Inc. (“NCSBA”) respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Ninth Circuit is reported at Organic Cannabis Found., LLC v. Comm'r, 962 F.3d 1082 (9th Cir. 2020) (Callaghan, J.).¹ Pet. App. 1. The order of the Court of Appeals denying rehearing and rehearing en banc is reported at N. Cal. Small Bus. Assistants Inc. v. Comm'r, 2020 U.S. App. LEXIS 27581 (9th Cir. 2020) (Bybee, N. R. Smith & Collins, JJ.). Pet. App. 29. The Order of the United States Tax Court is reported at Tax Ct. No. 10594-15 (2017). Pet. App. 32.

JURISDICTION

The Court has jurisdiction pursuant to 28 U.S.C. § 1254(1). The United States Court of Appeals for the Ninth Circuit issued its opinion and judgment June 18, 2020. Pet. App. at 1. On August 28, 2020, the Court of Appeals denied Petitioner's petition for rehearing or rehearing en banc. Pet. App. at 29.

RELEVANT CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Relevant constitutional and statutory provisions are set forth in the Appendix. Pet. App. 38.

STATEMENT OF THE CASE

This case presents the question of whether the 90-day deadline for filing a petition with the United States Tax Court set forth in Internal Revenue Code² §6213(a) (hereinafter the “Filing Deadline”)³ is jurisdictional. Under that section, a taxpayer who receives an Internal Revenue Service (“IRS”)⁴ notice of deficiency has 90-days within which to petition the Tax Court for review. The court below, following earlier circuit court decisions, held the Tax Court's Filing Deadline jurisdictional. However, those decisions were rendered prior to Kontrick v. Ryan, 540 U.S. 443 (2004), where this Court clarified that, henceforth, filing deadlines should almost never be treated as jurisdictional. And today there are only two exceptions to this Court's current jurisprudence that filing deadlines should almost never be treated as jurisdictional: a “clear statement” exception and a stare decisis exception. In affirming the Tax Court's dismissal of Petitioner's petition for redetermination of a notice of deficiency for lack of jurisdiction because said petition was received by the Tax Court one day after the Filing Deadline, the Ninth Circuit erroneously relied on both exceptions in holding § 6213(a)'s Filing Deadline jurisdictional and not subject to equitable tolling. However, as discussed in greater detail in the argument below, neither of those exceptions apply, and the Ninth Circuit's determination that they do conflicts with this Court's recent precedent. For that reason, this Court should grant certiorari.

FACTUAL AND PROCEDURAL BACKGROUND

The IRS proposed deficiencies and penalties in excess of $650,000 for Petitioner's tax years 2010 and 2011. The notice of deficiency was dated January 22, 2015, and identified April 22, 2015, as the last day to file a petition for redetermination with the Tax Court. (ER 116.) Petitioner prepared its Tax Court petition, in which it challenged both the applicability and the constitutionality of § 280E. (Tax Ct. Pet. 12-26.)

On April 21, 2015, Petitioner sent its petition to the Tax Court by FedEx overnight delivery. (ER 116.) Petitioner selected the FedEx overnight delivery option guaranteeing the earliest possible delivery, which FedEx marketed under the name “FedEx First Overnight.” (ER 100, 112-113.) When FedEx attempted to deliver the petition to the Tax Court on April 22, 2015, FedEx could not access the Tax Court due to “some plausible reason like construction, or some sort of police action (perhaps the [FedEx] representative said the access was blocked because of a safety threat).” (ER 116.) FedEx successfully delivered the petition on April 23, 2015, the day after the Filing Deadline expired. (ER 116.)

Notwithstanding the provisions of § 6214(a), which specifically grants the Tax Court jurisdiction to hear “deficiency” cases,⁵ on July 29, 2016, more than fifteen months after Petitioner's petition was filed with the Tax Court, the IRS moved to dismiss Petitioner's case on the ground that its petition was not timely filed. (ER 115.) Petitioner also moved to dismiss the case, but on the ground that the notice of deficiency was invalid because, in contravention of § 6212(b)(1), the IRS did not properly address the notice to Petitioner at its last known address. (ER 115); Cf. Napoliello v. Comm'r, 655 F.3d 1060, 1063 (9th Cir. 2011) (“A determination that the Tax Court lacks jurisdiction because of an invalid notice strips the IRS of power to assess taxes based on that notice”). On July 25, 2017, the Tax Court granted the IRS motion and dismissed Petitioner's case for lack of jurisdiction.

On October 18, 2017, Petitioner timely filed with the Tax Court a notice of appeal to the United States Court of Appeals for the Ninth Circuit (ER 121.) The Ninth Circuit had jurisdiction under § 7482(a)(1), (b)(1)(B). The Ninth Circuit affirmed the Tax Court's dismissal for lack of jurisdiction because Petitioner's petition for redetermination of a federal income tax deficiency was not timely filed (Pet. App. 26), and held that, because § 6213(a)'s Filing Deadline is jurisdictional, equitable exceptions such as equitable tolling and waiver do not apply.⁶ Pet. App. 3.

On August 3, 2020, Petitioner timely filed a petition for rehearing and rehearing en banc. That petition was denied. Pet. App. 29.

REASONS FOR GRANTING THE WRIT

I. THE NINTH CIRCUIT'S DETERMINATION THAT THE (90-DAY) FILING DEADLINE SET FORTH IN INTERNAL REVENUE CODE § 6213(a) IS JURISDICTIONAL AND NOT SUBJECT TO EQUITABLE TOLLING IS CONTRARY TO SUPREME COURT PRECEDENT AND POSES A QUESTION OF NATIONAL SIGNIFICANCE WHICH COULD HAVE PRECEDENTIAL VALUE CONCERNING THE JURISDICTION OF THE TAX COURT.

This Court has endeavored to “bring some discipline” to the use of the term “jurisdictional” as the consequences that attach to the “jurisdictional” label may be drastic. Gonzalez v. Thaler, 565 U.S. 134, 141 (2012). Hence, this Court has routinely granted review to consider whether a statutory filing deadline or other procedural proscription is jurisdictional.⁷

Section 6213(a) sets forth the Filing Deadline for filing a Tax Court petition. A separate Code section, § 6214(a), specifically contains the jurisdictional grant. This Court has recently held that statutory deadlines are presumptively nonjurisdictional and are subject to equitable tolling unless Congress has made a clear statement that the deadline is jurisdictional. Kwai Fun Wong, 575 U.S. at 409. Congress must clearly state that a threshold limitation on a statute's scope shall count as jurisdictional (Gonzalez, 565 U.S. at 141) and absent such a clear statement, courts shall treat the time restriction as nonjurisdictional. Sebelius, 568 U.S. at 153.

The Ninth Circuit's holding that § 6213(a)'s Filing Deadline is jurisdictional and not subject to equitable tolling is contrary to both (i) this Court's current approach, which distinguishes jurisdictional limits from case-processing rules, and (ii) this Court's recent holdings that statutory filing deadlines and claim-processing rules are presumptively nonjurisdictional and subject to equitable tolling unless (a) Congress has made a clear statement that a deadline is jurisdictional (Kwai Fun Wong, 575 U.S. at 407-408), or (b) a “long line of this Court's decisions left undisturbed by Congress attached a jurisdictional label to the prescription.” Fort Bend County, 139 S. Ct. at 1849 (internal quotation marks omitted). As such, the Ninth Circuit's ruling warrants this Court's review. The jurisdictional and equitable tolling questions presented, and their implications for the functioning of the Tax Court, are matters of national significance which could have precedential value.

Under this Court's current jurisprudence, there are only two exceptions to the rule that filing deadlines should almost never be treated as jurisdictional: a “clear statement” exception and a stare decisis exception.

a. The Clear Statement Exception Only Applies if Congress Makes a “Clear Statement” to the Effect a Filing Deadline is Jurisdictional.

Under this Court's current approach, filing deadlines are almost never jurisdictional. Kwai Fun Wong. 575 U.S. at 408. The Government must “clear a high bar to establish that a statute of limitations is jurisdictional.” Id. at 409. While this Court has acknowledged that filing deadlines can be jurisdictional if Congress makes a “clear statement” to that effect, “Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it.” Id.

Congress must clearly state that a threshold limitation on a statute's scope shall count as jurisdictional. Gonzalez, 565 U.S. at 141. Absent a “clear statement,” courts should treat time restrictions as nonjurisdictional. Sebelius, 568 U.S. at 153. While Congress is not required to “incant magic words,” traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences. Kwai Fun Wong, 575 U.S. at 410.

There simply is no clear statement indicating that § 6213(a)⁸ is intended to limit the Tax Court's jurisdiction to hear petitions to those filed within 90 (or 150) days after the deficiency notice is mailed. Section 6213(a) is entitled “Time For Filing Petition And Restriction On Assessment,” and does not speak to restricting the power of the Tax Court in any of its five sentences. The first sentence provides that a taxpayer “may” file a petition during the 90-day period following the issuance of a notice of deficiency. See Sebelius, 568 U.S. at 154. (finding that use of the word “may” was “less jurisdictional” than another statute which used the word “shall”).

The remaining sentences in § 6213(a) do nothing to “connect” this Filing Deadline to the jurisdictional grant contained in § 6214(a). Gonzalez, 565 U.S. at 145 (refusing to find that a statute was jurisdictional even where the section requiring a certificate of appealability contained a cross-reference to the section granting jurisdiction). The second sentence states that the IRS may not assess or collect a deficiency unless a notice of deficiency has been mailed to the taxpayer, and the IRS may not assess or collect a deficiency during the 90-day filing period or while a Tax Court proceeding is pending. The third sentence allows a taxpayer to bring a proceeding to enjoin improper assessment or collection of a deficiency. The fourth sentence clarifies that the Tax Court lacks jurisdiction to enjoin a proceeding or order a refund unless a petition is timely filed. Finally, the fifth sentence provides that any petition filed with the Tax Court on or before the last day specified for filing in the notice of deficiency shall be treated as timely filed. None of this language even suggests, let alone clearly dictates, that Congress intended the Filing Deadline to be jurisdictional.

The text of § 6213(a) relating to the Filing Deadline (essentially, the first sentence) speaks only to timeliness, not to the Tax Court's power to hear the case. Kwai Fun Wong, 575 U.S. at 410-411. The Tax Court is specifically granted jurisdiction to hear deficiency cases in § 6214(a), and that section fails to mention either the Filing Deadline or § 6213(a). Only the fourth sentence of § 6213(a) uses the word “jurisdiction,” and that reference is in the context of clarifying the Tax Court's lack of jurisdiction regarding certain injunctions or refund matters which are not at issue in this case. Further, in that fourth sentence, which was added in 1988, as part of the Omnibus Taxpayer Bill of Rights, more than sixty years after § 274(a) of the Revenue Act of 1924⁹, the predecessor of the first sentence of § 6213(a), was enacted, Congress prospectively amended § 6213(a) to specify that the Tax Court can have injunctive powers. Technical and Miscellaneous Revenue Act of 1988, H.R. 4333, 100th Cong. (1988); § 6243(a). Since the Tax Court's authority to enjoin the IRS was added to the Code long after the predecessor of the first sentence of § 6213(a) was first enacted (in 1924), the fourth sentence cannot be read to imbue the first sentence (which, on its face, states nothing more than a mere filing deadline) with jurisdictional consequences. Pet. App. 21; Kwai Fun Wong, 575 U.S. at 410-411.

Similarly, noting (i) that § 274(a) of the Revenue Act of 1924 (the “1924 Act”), the predecessor of the first sentence of § 6213(a) which defines the Filing Deadline, was enacted two years before § 274(e) of the Revenue Act of 1926¹⁰ (the predecessor of § 6214(a)), which granted the Board of Tax Appeals “jurisdiction to redetermine the correct amount of the deficiency,” and (ii) that said § 274(e) did not refer to § 274(a), or the filing deadline set forth therein, it follows that, when enacted, the filing deadline spelled out in § 274(a) of the 1924 Act, was not “imbued . . . with jurisdictional consequences.” Pet. App. 21; Kwai Fun Wong, 575 U.S. at 410-411.

In like fashion, noting that § 6213(a)'s second and third sentences derive from the 1926 Act (§ 274(a)¹¹), enacted two years after enactment of § 274(a) of the 1924 Act, neither of those sentences can possibly be read to imbue the filing deadline spelled out in § 274(a) of the 1924 Act “with jurisdictional consequences,” at least not at the time § 274(a) of the 1924 Act was enacted. Pet. App. 21; Kwai Fun Wong, 575 U.S. at 410-411.

Further evidence that none of the aforementioned additions to the tax law under the 1926 Act were intended to imbue the filing deadline spelled out in § 274(a) of the 1924 Act “with jurisdictional consequences” is the fact that all of these provisions were enacted when Congress was concerned with making the Board of Tax Appeals (the “Board”) more court-like. “Although Congress was unwilling to transform the Board into a court, an effort was made in the 1926 Act to accord the Board more judicial attributes.” Harold Dubroff & Brant J. Hellwig, The United States Tax Court: An Historical Analysis 122 (2d ed. 2014). No doubt, this explains why the separate provision giving the Board “jurisdiction” (§ 274(e) of the 1926 Act) was first added to the tax law in 1926. With respect to the injunctive remedy adopted as what are now the second and third sentences of § 6213(a), that was added because one district court had held that there was no injunctive remedy under the 1924 Act if the IRS prematurely assessed a deficiency while the Board was considering the case. Id. at 136 n.109.

The Ninth Circuit starts its analysis of the recent Supreme Court jurisprudence addressing when statutory deadlines should be deemed jurisdictional by referencing the Seventh Circuit's decision in Tilden v. Commissioner, 846 F.3d 882, 884 (7th Cir. 2017). In Tilden, the Commissioner confessed error and the Court held that the Tax Court wrongly dismissed a petition where the parties had agreed to facts that showed that the petition was timely. Tilden's analysis of whether § 6213(a)'s time limit was jurisdictional was poorly reasoned and not necessary to its decision. Relying on dicta in the Tax Court's decision in Guralnik v. Commissioner, 146 T.C. 230, 231 (2016), which involved § 6330(d)(1), not § 6213(a), and stressing that § 6213(a) has long been held by several circuit courts to be jurisdictional, the Tilden court characterized § 6213(a) as jurisdictional because the word “jurisdiction” is used in that section, albeit in a separate sentence about the Tax Court's ability to enjoin collection, more than 175 words and 2 sentences after the sentence establishing the Filing Deadline. Tilden, 846 F.3d at 886 (emphasis added).

The Ninth Circuit then purports to apply “traditional tools of statutory construction” to support its conclusion “. . . that Congress has indeed done 'something special' to 'plainly show' that § 6213's time limit is 'imbued . . . with jurisdictional consequences.'” Pet. App. 21; Kwai Fun Wong, 575 U.S. at 410. First, the Ninth Circuit states that § 6213(a) uses the “magic word 'jurisdiction,'” albeit, “. . . with respect to one aspect of the Tax Court's power concerning deficiency redeterminations . . .” Pet. App. 22 (emphasis in original). Addressing, in turn, each of the first four sentences of § 6213(a) (which include an aggregate of 282 words), the Ninth Circuit agrees with the Seventh Circuit's assertion in Tilden that it is “very hard” to read the fourth sentence of § 6213(a) in a way that merely strips the Tax Court of jurisdiction to enjoin the collection actions referred to in the second sentence. Pet. App. 23. “By also specifying that the Tax Court lacks 'jurisdiction' to issue such an injunction 'unless' a [timely] petition has been filed, § 6213(a) seems clearly to reflect an understanding that the manner in which the Tax Court acquires jurisdiction over a deficiency dispute is through the filing of a 'timely petition.' I.R.C. § 6213(a).” Pet. App. 23 (emphasis in original, but added to “seems”).

Such a holding is not only contrary to Gonzalez, 565 U.S. at 146-147, which instructs courts not to treat time periods adjacent to jurisdictional provisions as jurisdictional absent a “clear statement,” but, on its face, the Ninth Circuit's use of the word “seems” shows that Congress has not done “'something special' to 'plainly show' that § 6213(a)'s time limit is 'imbued . . . with jurisdictional consequences.'” Pet. App. 21; Kwai Fun Wong, 575 U.S. at 410.

Suggesting that the fourth sentence of § 6213(a) seems to reflect “an understanding” that the manner in which the Tax Court acquires jurisdiction over a deficiency dispute is through the filing of a “timely petition,” the Ninth Circuit states its reading of the statute in this fashion is “strongly confirmed” by how the second sentence's “no-collection” prohibition is phrased. Pet. App. 23. On this point, the Ninth Circuit suggests that, if § 6213(a) is not jurisdictional, the no-collection prohibition provided in the second sentence would lapse, subject to revival if the Tax Court accepts a late-filed petition, a “discontinuity” the Ninth Circuit says the statute does not contemplate. Pet. App. 24. However, there is no such “discontinuity.” The second sentence's “no-collection” prohibition is unconditional — if a petition (timely or not) has been filed with the Tax Court, “no levy or proceeding in [any] court for its collection shall be made, begun, or prosecuted until . . . the decision of the Tax Court has become final.” § 6213(a). And while it might be argued that, if a petition is not timely filed, the Tax Court (still) does not have jurisdiction “to enjoin violations of that prohibition against collection — thereby necessitating a separate court proceeding . . .” Pet. App. 24 (emphasis in original), during the sixty years preceding the amendment of § 6213(a) which granted the Tax Court power to enjoin such violations, separate proceedings were required to do so, and there is nothing in the legislative history pertaining to the amendment of § 6213(a) which suggests that Congress was attempting to eliminate the need for separate actions to enjoin such violations.

Possibly more pointedly, if the Filing Deadline is jurisdictional, contrary to the Ninth Circuit's hypothetical, the Tax Court would lack jurisdiction to accept a petition filed after the Filing Deadline. Hence, there would be no “discontinuity” as there could be no “revival.” In contrast, if the Filing Deadline is not jurisdictional, and the Tax Court can equitably toll the Filing Deadline (as it has when, for example, there has been a national disaster or other (significant) event which makes the Tax Court inaccessible on the last day of the Filing Period (Guralnik, 146 T.C. at 243)), the Tax Court's acceptance of a petition after expiration of the Filing Period would deem the petition as timely and, pursuant to the fourth sentence of § 6213(a), allow the Tax Court to enjoin any collection activity the IRS might have commenced. This result, which would facilitate judicial economy, is much more clearly contemplated under the Code than the Ninth Circuit's convoluted attempt to “tie” the prohibition against collection in the second sentence of § 6213(a) to the Filing Deadline set forth in the first sentence of that section.

The Ninth Circuit then contends that, if § 6213(a) is not jurisdictional, a dismissal for late-filing would have preclusive effect under § 7459(d).¹² That this would occur is not certain as nothing in the Code would preclude a taxpayer from either contesting the liability in Bankruptcy Court or paying the tax and suing the government for a refund in district court or the Court of Federal Claims if a petition is dismissed as untimely. If, however, the Ninth Circuit is correct about this “preclusive effect”, resolution of the issue involves policy arguments better addressed by Congress than the courts. (Appellant Reply Br. 25.) More pointedly, like each of the other, aforementioned, strained constructions the Ninth Circuit has asserted, its suggestion that, if § 6213(a) is not jurisdictional, a dismissal for late-filing would have preclusive effect under § 7459(d) does not plainly show that the Filing Deadline is intended to have jurisdictional consequences.

b. The Stare Decisis Exception Does Not Apply to Circuit Court Rulings.

As the last ground for its decision that the Filing Deadline in the first sentence of § 6213(a) is jurisdictional, the Ninth Circuit notes, “. . . the '“historical treatment” of the provision at issue,' [cite omitted] further confirms that § 6213(a) imposes a jurisdictional time limit. As noted earlier, the circuits have uniformly adopted a jurisdictional reading of § 6213(a) or its predecessor since at least 1928.” Pet. App. 25 (emphasis added). However, setting aside the fact that the vast majority of those circuit court rulings precede this Court's recent jurisprudence addressing when statutory deadlines and claim-processing rules should be deemed jurisdictional, the Ninth Circuit disregards the distinction between appellate court and Supreme Court precedent clarified in Fort Bend County. Fort Bend County, 139 S. Ct. at 1849. In other words, as this Court has never ruled on whether § 6213(a)'s Filing Deadline is jurisdictional nor, since Kontrick, 540 U.S. at 455, has it held that Congress clearly stated an intent that any claims processing rule is jurisdictional, it is somewhat misleading to suggest that the aforementioned long-settled circuit court treatment of § 6213(a) as jurisdictional should be followed merely because Congress has not addressed it.

This Court has never ruled on the jurisdictional nature of § 6213(a)'s Filing Deadline. Accordingly, the stare decisis exception cannot apply here. “[T]he Court has stated it would treat a requirement as jurisdictional when a long line of Supreme Court decisions left undisturbed by Congress attached a jurisdictional label to the prescription.” Fort Bend County, 139 S. Ct. at 1849 (emphasis added).

This Court has issued seven other opinions (none acknowledged by the Ninth Circuit) that describe the stare decisis exception as only being applicable to a long line of Supreme Court opinions. Thus, the Ninth Circuit's reliance on this exception is actually in conflict with eight of this Court's recent opinions. Following are pertinent quotes from the seven other opinions:

Union Pac. R.R. v. Bhd. of Locomotive Eng'rs & Trainmen Gen.Comm. of Adjustment, 558 U.S. 67, 82 (2009) (citing John R. Sand, 552 U.S. at 132 and Bowles, 551 U.S. at 209-211) (emphasis added).

Reed Elsevier, Inc, 559 U.S. at 168 (emphasis added).

Henderson, 562 U.S. at 436 (citing John R. Sand, 552 U.S. at 133-134; emphasis added).

Gonzalez, 565 U.S. at 142 n.3 (emphasis added).

Sebelius, 568 U.S. at 153-154 (emphasis added).

Kwai Fun Wong, 575 U.S. at 416 (emphasis added).

Hamer, 138 S. Ct. at 20 n.9 (emphasis added).

Further, in her concurring opinion in Reed Elsevier, Inc., 559 at 173-174, Justice Ginsburg (and two other Justices) explicitly rejected the idea of a stare decisis exception applicable to circuit court of appeal opinions: “[I]n Bowles and John R. Sand & Gravel Co., . . . we relied on longstanding decisions of this Court typing the relevant prescriptions 'jurisdictional.' Amicus cites well over 200 opinions that characterize § 411(a) as jurisdictional, but not one is from this Court. . . .” (emphasis in original; citations omitted).

c. The Tax Court has equitably tolled filing periods, power it would not have if filing periods are jurisdictional.

Finally, in deciding whether § 6213(a)'s Filing Deadline is jurisdictional and not subject to equitable tolling, how the Tax Court operates should not be overlooked. For example, in Guralink, 146 T.C. at 231, where the Tax Court, in dicta, stated that FedEx First Overnight was not a “designated delivery service,” the Tax Court nonetheless extended the § 6330(d) 30-day filing period, holding that a petition which arrived one day late was timely because the clerk's office was inaccessible on the day the petition was due because of a snowstorm. Following its rules, which closely parallel the Federal Rules of Civil Procedure, the Tax Court concluded it had jurisdiction to extend the filing period. As nothing in the Tax Court rules or the Code specifically state the Tax Court can extend filing deadlines, to do so the Tax Court had to rely on equitable tolling, power it would not have had if the timing statute is jurisdictional.

Review is warranted because the Ninth Circuit's decision that § 6213(a)'s Filing Deadline is jurisdictional does not follow this Court's jurisprudence. Whether the Filing Deadline in § 6213(a) is jurisdictional is a question of national significance which could have precedential value concerning the ability of taxpayers to contest a proposed (and potentially erroneous) assessment in the only available pre-payment forum other than Bankruptcy Court — the United States Tax Court.

CONCLUSION

For the foregoing reasons, the Court should grant Northern California Small Business Assistants, Inc.'s Petition for Writ Of Certiorari to Review the Judgment of the United States Court of Appeals for the Ninth Circuit.

Respectfully Submitted,

DOUGLAS L. YOUMANS
Counsel of Record
WAGNER KIRKMAN BLAINE
KLOMPARNES & YOUMANS LLP
10640 Mather Blvd., Suite 200
Mather, CA 95655
(916) 920-5286
dyoumans@wkblaw.com

Counsel For Petitioner,
Northern California Small Business Assistants, Inc.