Law Firm Argues Tax Court Filing Deadline Is Not Jurisdictional

BOECHLER, P.C.,
Petitioner,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent.

In the
Supreme Court of the United States

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT

BRIEF FOR PETITIONER

MELISSA ARBUS SHERRY
Counsel of Record
CAROLINE A. FLYNN
AMY FEINBERG
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
melissa.sherry@lw.com

Counsel for Petitioner

QUESTION PRESENTED

Section 6330(d)(1) of the Internal Revenue Code establishes a 30-day time limit to file a petition for review in the Tax Court of a notice of determination from the Commissioner of Internal Revenue. 26 U.S.C. § 6330(d)(1). The question presented is:

Whether the time limit in Section 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling.

RULE 29.6 STATEMENT

Pursuant to Rule 29.6 of the Rules of this Court, petitioner Boechler, P.C. hereby states that it is neither owned by a parent corporation, nor is there a publicly held corporation owning ten percent (10%) or more of its shares.

RELATED PROCEEDINGS

Boechler, P.C. v. Commissioner, No. 19-2003, United States Court of Appeals for the Eighth Circuit, judgment entered July 24, 2020 (967 F.3d 760), rehearing denied November 17, 2020.

Boechler, P.C. v. Commissioner, No. 18578-17 L, United States Tax Court, judgment entered February 15, 2019.

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TABLE OF CONTENTS

QUESTION PRESENTED

RULE 29.6 STATEMENT

RELATED PROCEEDINGS

TABLE OF AUTHORITIES

OPINIONS AND ORDERS BELOW

JURISDICTION

STATUTORY PROVISIONS INVOLVED

INTRODUCTION

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT

I. THE LIMITATIONS PERIOD IN SECTION 6330(d)(1) IS NOT JURISDICTIONAL

II. THE LIMITATIONS PERIOD IN SECTION 6330(d)(1) IS SUBJECT TO EQUITABLE TOLLING

CONCLUSION

ADDENDUM

26 U.S.C. § 6015(e)(1) (Supp. IV 1999)

26 U.S.C. § 6320 (2018)

26 U.S.C. § 6321 (2018)

26 U.S.C. § 6330 (2018)

26 U.S.C. § 6330(d)(1) (Supp. IV 1999)

26 U.S.C. § 6331(a)-(c) (2018)

26 U.S.C. § 6404(g) (Supp. III 1998)

26 U.S.C. § 6511 (2018)

26 U.S.C. § 6514 (2018)

26 U.S.C. § 7421 (2018)

26 U.S.C. § 7442 (2018)

26 U.S.C. § 7623(b) (2018)

42 U.S.C. § 2000e-16(c) (1988)

TABLE OF AUTHORITIES

CASES

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

Bogart v. Commissioner, T.C. Memo. 2014-46, 2014 WL 1041443 (Mar. 18, 2014)

Bowen v. City of New York, 476 U.S. 467 (1986)

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

Cyan, Inc. v. Beaver County Employees Retirement Fund, 138 S. Ct. 1061 (2018)

Deal v. United States, 508 U.S. 129 (1993)

Dolan v. United States, 560 U.S. 605 (2010)

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

EPA v. EME Homer CityGeneration,L.P., 572 U.S. 489 (2014)

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

Gomez-Perez v. Potter, 553 U.S. 474 (2008)

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

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

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

Hamer v. Neighborhood Housing Services of Chicago, 138 S. Ct. 13 (2017)

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

Hinck v. United States, 550 U.S. 501 (2007)

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

INS v. St. Cyr, 533 U.S. 289 (2001)

Irwin v. Department 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)

Landgraf v. USI Film Products, 511 U.S. 244 (1994)

Lundsford v. Commissioner, 117 T.C. 183 (2001)

Mayo Foundation for Medical Education & Research v. United States, 562 U.S. 44 (2011)

McLane v. Commissioner, T.C. Memo. 2018-149, 2018 WL 4350097 (Sept. 11, 2018), appeal pending, No. 20-1074 (4th Cir. docketed Jan. 23, 2020)

In re Milby, 875 F.3d 1229 (9th Cir. 2017)

Minerva Surgical, Inc. v. Hologic, Inc., 141 S. Ct. 2298 (2021)

Musacchio v. United States, 577 U.S. 237 (2016)

Myers v. Commissioner, 928 F.3d 1025 (D.C. Cir. 2019)

Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019)

Pereira v. Sessions, 138 S. Ct. 2105 (2018)

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

Republic National Bank of Miami v. United States, 506 U.S. 80 (1992)

Sebelius v. Auburn Regional Medical Center, 568 U.S. 145 (2013)

Sego v. Commissioner, 114 T.C. 604 (2000)

Sims's Lessee v. Irvine, 3 U.S. (3 Dall.) 425 (1799)

Sossamon v. Texas, 563 U.S. 277 (2011)

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

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

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

V.L. v. E.L., 577 U.S. 404 (2016)

Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2015)

Weinberger v. Salfi, 422 U.S. 749 (1975)

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

Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982)

STATUTES AND REGULATIONS

18 U.S.C. § 1001

18 U.S.C. § 1519

26 U.S.C. § 6015(e)(1)(A) (Supp. IV 1999)

26 U.S.C. § 6320(a)

26 U.S.C. § 6320(b)

26 U.S.C. § 6320(c)

26 U.S.C. § 6321

26 U.S.C. § 6323(a)

26 U.S.C. § 6323(f)

26 U.S.C. § 6330

26 U.S.C. § 6330(a)

26 U.S.C. § 6330(b)

26 U.S.C. § 6330(c)

26 U.S.C. § 6330(c)(1)

26 U.S.C. § 6330(c)(2)

26 U.S.C. § 6330(c)(2)(A)(i)

26 U.S.C. § 6330(c)(2)(A)(ii)

26 U.S.C. § 6330(c)(2)(A)(iii)

26 U.S.C. § 6330(c)(2)(B)

26 U.S.C. § 6330(c)(3)

26 U.S.C. § 6330(c)(3)(C)

26 U.S.C. § 6330(d)(1)

26 U.S.C. § 6330(d)(1) (Supp. IV 1999)

26 U.S.C. § 6330(d)(2)

26 U.S.C. § 6330(e)(1)

26 U.S.C. § 6330(e)(2)

26 U.S.C. § 6330(f)

26 U.S.C. § 6331

26 U.S.C. § 6404(g) (Supp. III 1998)

26 U.S.C. § 6404(h)

26 U.S.C. § 6502(a)

26 U.S.C. § 6511

26 U.S.C. § 6511(a)

26 U.S.C. § 6511(b)(1)

26 U.S.C. § 6511(b)(2)(A)

26 U.S.C. § 6511(b)(2)(B)

26 U.S.C. § 6511(d)(1)-(8)

26 U.S.C. § 6514

26 U.S.C. § 6721(a)(2)

26 U.S.C. § 6721(e)

26 U.S.C. § 7122

26 U.S.C. § 7421(a)

26 U.S.C. § 7442

26 U.S.C. § 7482(a)

26 U.S.C. § 7502

26 U.S.C. § 7502(a)(1)

26 U.S.C. § 7503

26 U.S.C. § 7508(a)

26 U.S.C. § 7508(c)

26 U.S.C. § 7508A(a)

26 U.S.C. § 7508A(d)

26 U.S.C. § 7623(b)(4)

26 U.S.C. § 7803(c)

26 U.S.C. § 7803(c)(2)(B)(ii)(IX)

28 U.S.C. § 1254(1)

28 U.S.C. § 1331

28 U.S.C. § 1332(a)

28 U.S.C. § 1340

28 U.S.C. § 1362

28 U.S.C. § 1491(a)(2)

28 U.S.C. § 2253(c)(1)

42 U.S.C. § 1395oo(a)

42 U.S.C. § 2000e-16(c)

Pub. L. No.104-168,110Stat.1452 (1996)

Pub. L. No. 105-206, 112 Stat. 685 (1998)

Pub. L. No. 106-554, App. G, 114 Stat. 2763 (2000)

Pub. L. No. 109-280, 120 Stat. 780 (2006)

Pub. L. No. 114-113, Div. Q, 129 Stat. 2244 (2015)

Pub. L. No.116-25,TitleI,133Stat.981 (2019)

26 C.F.R. § 301.7122-1(b)

26 C.F.R. § 301.7508-1

26 C.F.R. § 301.7508A-1(c)(iv)

LEGISLATIVE MATERIALS

144 Cong. Rec. 14,695 (1998)

144 Cong. Rec. 14,790 (1998)

H.R. Rep. No. 105-599 (1998) (Conf. Rep.)

H.R. Rep. No. 106-1033 (2000) (Conf. Rep.)

IRS Oversight: Hearings Before the S. Comm. on Finance, 105th Cong. (1998)

IRS Restructuring: Hearings on H.R. 2676 Before the S. Comm. on Finance, 105th Cong. (1998)

Practices and Procedures of the Internal Revenue Service: Hearings Before the S. Comm. on Finance, 105th Cong. (1997)

S. Rep. No. 105-174 (1998)

S. Rep. No. 109-64 (2005)

S. Rep. No. 114-14 (2015)

Staff of the Joint Comm. on Taxation, Technical Explanation of H.R. 4 (Aug. 3, 2006), https://www.jct.gov/CMSPages/GetFile.aspx?guid=09ae9eb1-c324-4931-ae3a-5e0af6adfe48

Staff of Joint Comm. on Taxation, Technical Explanation of the Protecting Americans From Tax Hikes Act of 2015 (Dec. 17, 2015), https://www.jct.gov/publications/2015/jcx-144-15/

OTHER AUTHORITIES

Black's Law Dictionary (11th ed. 2019)

Leslie Book, A Response to Professor Camp: The Importance of Oversight, 84 Ind. L.J. Supp. 63 (2009)

Bryan T. Camp, New Thinking About Jurisdictional Time Periods in the Tax Code, 73 Tax L. 1 (2019)

Harold Dubroff & Brant J. Hellwig, The United States Tax Court: An Historical Analysis (2d ed. 2014), https://www.ustaxcourt.gov/resources/book/Dubroff_Hellwig.pdf

Bryan A. Garner, Garner's Modern English Usage 873 (4th ed. 2016)

Fed. R. App. P. 2

Fed. R. App. P. 26(b)(1)

National Taxpayer Advocate, 2019 Purple Book (Dec. 31, 2018), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/07/ARC18_PurpleBook.pdf

National Taxpayer Advocate, 2020 Purple Book (Dec. 31, 2019), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/08/ARC19_PurpleBook.pdf

National Taxpayer Advocate, 2021 Purple Book (Dec. 31, 2020), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2021/01/ARC20_PurpleBook.pdf

National Taxpayer Advocate, Annual Report to Congress 2017 (Dec. 31, 2017), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2020/08/ARC17_Volume1.pdf

National Taxpayer Advocate, Annual Report to Congress 2020 (Dec. 31, 2020), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2021/01/ARC20_FullReport.pdf

Rev. Proc. 2018-58, 2018 WL 6113260

Michael I. Saltzman & Leslie Book, IRS Practice & Procedure (Oct.2021, Westlaw)

Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012)

William Strunk Jr. & E.B. White, The Elements of Style (4th ed. 2000)

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OPINIONS AND ORDERS BELOW

The decision of the court of appeals (Pet. App. 1a-12a) is reported at 967 F.3d 760. The order of the court of appeals denying rehearing and rehearing en banc (Pet. App. 16a-17a) is unreported. The Tax Court decision (Pet. App. 13a-15a) is unreported.

JURISDICTION

The court of appeals entered judgment on July 24, 2020. Pet. App. 1a. On November 17, 2020, the court of appeals denied petitioner's motion for rehearing and rehearing en banc. Pet. App. 16a-17a. On March 19, 2020, this Court extended the time within which to file a petition for a writ of certiorari to 150 days from the order denying a timely petition for rehearing. The petition was timely filed on April 16, 2021, and granted on September 30, 2021. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

Relevant statutory provisions are reproduced in the addendum to this brief.

INTRODUCTION

Section 6330(d)(1) of the Internal Revenue Code provides taxpayers with 30 days to file a petition with the Tax Court for review of a “collection due process” determination. Congress created the collection due process regime to give taxpayers process — including judicial review — before the Internal Revenue Service (IRS) could seize their property to pay a tax debt. The question presented is whether the 30-day period to seek pre-collection judicial review is jurisdictional. Under a long line of this Court's cases, it is not.

As this Court has said time and again, filing deadlines are quintessential claim-processing rules. Unless Congress has clearly said otherwise, they must be treated as nonjurisdictional. That readily administrable bright line makes this a simple case: there is no clear statement.

Section 6330(d)(1) instructs that a “person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).” 26 U.S.C. § 6330(d)(1). The text does not condition the Tax Court's jurisdiction on compliance with the 30-day time limit. Under the most natural reading, Section 6330(d)(1) simply does two things in the same sentence: (i) it confers jurisdiction on the Tax Court to hear a petition seeking review of a CDP determination, and (ii) it provides a filing deadline. That reading is reinforced (if not compelled) by the statutory history. And it furthers the purposes of the collection due process review scheme, which Congress enacted to be especially protective of taxpayers.

The Commissioner's attempts to link the limitations period to the jurisdictional grant do violence to the text and ignore the statutory history and purpose. But more to the point, they at best give rise to the sort of ambiguity that is, by definition, insufficient to overcome the Court's clear-statement rule. Nothing in the text, structure, or historical context plainly demonstrates that Congress chose to make this particular filing deadline the rare jurisdictional time limit.

The Commissioner has also argued that even if the 30-day deadline is nonjurisdictional, it is still not subject to equitable exceptions. He is wrong about that too. It is hornbook law that limitations periods are presumptively subject to equitable tolling. That presumption is reinforced here. As filing deadlines go, Section 6330(d)(1) is not the kind this Court has found particularly emphatic. And the core purpose of the collection due process regime is to provide the taxpayer with fair and equitable pre-collection review. The Commissioner can no more overcome the presumption in favor of equitable tolling than he can the jurisdictional clear-statement rule.

In the end, the 30-day deadline in Section 6330(d)(1) is nothing more than an ordinary limitations period subject to equitable tolling in appropriate cases. This Court should reverse.

STATEMENT OF THE CASE

A. Legal Background

This case concerns the timeline that governs Tax Court review of determinations made by the Commissioner of Internal Revenue in “collection due process” (CDP) hearings.

1. One way the IRS collects outstanding tax obligations is by seizing the taxpayer's property by levy. Once the IRS assesses a tax against a taxpayer and the person does not pay, a federal tax lien automatically attaches to all of the taxpayer's real and personal property, including wages, by operation of law. 26 U.S.C. § 6321.¹ Unlike private creditors, the IRS does not need to go through a court to establish or enforce its lien. But if the IRS wants its lien to be effective against a wider range of creditors, it may record a formal “notice of federal tax lien” on the property. See id. § 6323(a), (f). Either way, once the automatic lien attaches, the IRS may levy the taxpayer's property. Id. § 6331.

2. Before 1998, the IRS “could exercise its administrative collection remedies without the prospect of judicial oversight or intervention.” Harold Dubroff & Brant J. Hellwig, The United States Tax Court: An Historical Analysis 482 (2d ed. 2014), https://www.ustaxcourt.gov/resources/book/Dubroff_ Hellwig.pdf. Taxpayers generally had no ability to prevent the IRS from carrying out a seizure of their property to pay a tax debt. See id.

In the mid-1990s, Congress held a series of highly publicized hearings in which witnesses recounted numerous stories of the IRS seizing residences, padlocking businesses, and otherwise employing overzealous and heavy-handed tactics. See IRS Oversight: Hearings Before the S. Comm. on Finance, 105th Cong. (1998) (“IRS Oversight”); Practices and Procedures of the Internal Revenue Service: Hearings Before the S. Comm. on Finance, 105th Cong. (1997) (“IRS Practices and Procedures”); Dubroff & Hellwig, supra, at 482. As a result of those hearings, Congress decided that taxpayers needed more robust protections against IRS collection actions. See Dubroff & Hellwig, supra, at 482-83 (explaining that “Congress was determined to recalibrate the balance of power in the tax collection setting”).

So Congress created the “collection due process” regime: a scheme of administrative and judicial review designed to impose meaningful external checks on the IRS's collection decisions before they are carried out. See Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 3401, 112 Stat. 685, 746. As the accompanying committee report explained, the goal was to increase fairness to taxpayers by guaranteeing similar protections against the IRS that the taxpayers would have in dealing with any other creditor. S. Rep. No. 105-174, at 67 (1998); see Dubroff & Hellwig, supra, at 483.

3. The CDP regime works as follows. Thirty days before the IRS plans to seize the taxpayer's property, it must provide the taxpayer with a “notice of intent to levy” explaining the basis for the levy and detailing the taxpayer's procedural rights. 26 U.S.C. § 6330(a). The IRS must provide a similar notice to the taxpayer within five days of filing a notice of federal tax lien. Id. § 6320(a).

The taxpayer may then request a CDP hearing before the IRS Independent Office of Appeals. Id. §§ 6320(b), 6330(b).² At the administrative hearing, the taxpayer may raise “any relevant issue relating to the unpaid tax or proposed levy.” Id. § 6330(c)(2); see id. § 6320(c) (cross-referencing same procedures for lien notices). The “[m]atters” to be “considered” include challenges to the “appropriateness” of the IRS's collection action, as well as spousal defenses. Id. § 6330(c)(2)(A)(i)-(ii). The taxpayer may offer “collection alternatives,” including the posting of a bond, the substitution of other assets, an installment agreement, or an offer-in-compromise. Id. § 6330(c)(2)(A)(iii).³ The taxpayer may also contest the underlying tax liability, but only if she did not receive a notice of deficiency or did not otherwise have an opportunity to dispute the liability. Id. § 6330(c)(2)(B).

In addition to considering those issues, the Independent Office of Appeals must obtain verification from the IRS that all required legal and procedural requirements have been met. Id. § 6330(c)(1). And it must make a determination that “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.” Id. § 6330(c)(3).

4. After the hearing, the Independent Office of Appeals issues a “notice of determination.” Id. The mailing of that notice triggers the Tax Court filing deadline at issue here. Section 6330(d)(1) states:

(d) Proceeding after hearing

(1) Petition for review by Tax Court

The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).

Id. § 6330(d)(1); see id. § 6320(c) (cross-referencing same review procedures for lien notices).

Today, only the Tax Court has jurisdiction over petitions for review of CDP determinations. But as originally enacted in 1998, Section 6330(d)(1) split that jurisdiction between the Tax Court and the federal district courts, depending on the type of tax involved. See Pub. L. No. 105-206, § 3401(b), 112 Stat. at 749. Because that split of jurisdiction led to confusion, see S. Rep. No. 109-64, at 2-3 (2005), Congress amended the statute in 2006 to consolidate all review in the Tax Court. Pension Protection Act of 2006, Pub. L. No. 109-280, § 855(a), 120 Stat. 780, 1019; see Staff of the Joint Comm. on Taxation, Technical Explanation of H.R. 4, at 201-02 (Aug. 3, 2006), https://www.jct.gov/CMSPages/GetFile.aspx? guid=09ae9eb1-c324-4931-ae3a-5e0af6adfe48.

Either the taxpayer or the IRS may appeal the Tax Court's decision to the courts of appeals. See 26 U.S.C. § 7482(a).

5. During the administrative CDP proceedings and any subsequent appeals, the IRS generally may not execute the levy. Id. § 6330(e)(1); see id. § 6330(e)(2), (f) (noting limited exceptions). Various statutes of limitations — such as the ten-year period governing the IRS's authority to collect a tax after assessment — are also suspended during that time. See id. §§ 6330(e)(1), 6502(a). And Section 6330(e)(1) provides an exception to the Anti-Injunction Act, authorizing a “proper court, including the Tax Court” to enjoin any levy or proceeding that goes forward in violation of that suspension. Id. § 6330(e)(1). The Tax Court has jurisdiction to enjoin when a “timely appeal has been filed” and “only in respect of the unpaid tax or proposed levy to which the determination being appealed relates.” Id.

B. Factual And Procedural Background

1. Petitioner Boechler, P.C. is a small law firm in Fargo, North Dakota. JA18, JA26. On June 5, 2015, the IRS sent petitioner a letter noting a “discrepancy” in its tax filings for the year 2012. JA24-25. The IRS claimed that petitioner had failed to file certain documents with the Social Security Administration (SSA) for that year — specifically, copies of its employees' Form W-2s (showing each employee's earnings and tax withholdings) along with a required Form W-3 (reporting petitioner's aggregate wages and withheld taxes). JA24-25. The IRS did not claim that petitioner owed any payroll taxes for that year. See id.; JA32-33. The “discrepancy” existed because the amount petitioner had reported to the IRS as withheld taxes (on a separate Form 941) did not match the amount reported to the SSA on the W-2s and W-3 — which the IRS treated as “zero” because those forms were (purportedly) missing. JA24-25.

Because petitioner did not respond to the IRS's letter within 45 days, the IRS assessed an “intentional disregard” penalty. JA23-24. The penalty amount was $19,250 — 10% of the wages petitioner reported on its employment tax returns for 2012. JA24; see 26 U.S.C. § 6721(a)(2), (e).

2. On October 13, 2016, the IRS mailed petitioner the required notice of intent to levy. JA21. On November 1, 2016, petitioner requested a CDP hearing under Section 6330(b)(1). Id. Petitioner challenged the penalty, explaining that it had in fact filed the missing W-2s and W-3; petitioner later provided the Independent Office of Appeals with copies. JA21-22, JA27. Petitioner also argued that the penalty was excessive and would cause significant hardship to its small business. JA22. Petitioner requested abatement or a collection alternative. JA27, JA29-30.

The Independent Office of Appeals held a CDP hearing by telephone on May 19, 2017. JA26. On July 28, 2017, the Office mailed petitioner a notice of determination sustaining the proposed levy, denying the abatement request, and rejecting any collection alternative. JA18-20. As required by statute, the Office determined that the levy “balance[d] the need for efficient collection of taxes with [petitioner's] legitimate concern that any collection action be no more intrusive than necessary.” JA29-30. The notice of determination was delivered to petitioner on July 31, 2017. Pet. App. 14a.

3. Under Section 6330(d)(1), petitioner had 30 days from the date of the notice's mailing (July 28) to file its petition for review with the Tax Court. Because the 30th day (August 27) fell on a Sunday, the deadline was Monday, August 28. See 26 U.S.C. § 7503. Petitioner mailed its petition one day late, on August 29. JA37; Pet. App. 14a; see 26 U.S.C. § 7502(a)(1) (petition deemed filed on date of mailing).

In the Tax Court, the Commissioner moved to dismiss the petition for lack of jurisdiction based on petitioner's failure to meet the 30-day filing deadline. JA11. In response, petitioner argued that Section 6330(d)(1) is not jurisdictional and is subject to equitable tolling. C.A. App. 32-42. And petitioner requested the opportunity to develop a factual record to establish its entitlement to tolling, including through an evidentiary hearing. Id. at 48-49.

The Tax Court agreed with the Commissioner and dismissed the petition. Pet. App. 15a. The court adhered to its long-held position that the filing deadline in Section 6330(d)(1) is jurisdictional. Id. (citing Gray v. Commissioner, 138 T.C. 295, 299 (2012)); see also Guralnik v. Commissioner, 146 T.C. 230, 235-36 (2016) (reaffirming position in the face of this Court's more recent jurisdictional precedent, which the Tax Court described as “outside the tax arena”). The court rejected petitioner's request for equitable tolling on that basis alone. Pet. App. 15a.

4. Petitioner timely appealed to the Eighth Circuit. In a split decision, the court of appeals affirmed. Pet. App. 1a.

a. The court of appeals acknowledged that this Court “has 'repeatedly held that filing deadlines ordinarily are not jurisdictional'” and instead should be treated as claim-processing rules presumptively subject to equitable tolling. Id. at 3a (quoting Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 154 (2013)). The court also recognized that “'Congress must do something special, beyond setting an exception-free deadline, to tag a [time limit] as jurisdictional and so prohibit a court from tolling it.'” Id. at 4a-5a (alteration in original) (quoting United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015)). And it agreed that this Court's decisions require a “clear statement” from Congress. Id. at 4a.

But the court of appeals believed that Section 6330(d)(1) met that standard. Relying on the Ninth Circuit's earlier decision in Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018), the court concluded that the parenthetical phrase “'(and the Tax Court shall have jurisdiction with respect to such matter)'” is “clearly jurisdictional and renders the remainder of the sentence jurisdictional.” Pet. App. 6a (quoting 26 U.S.C. § 6330(d)(1)). The words “such matter,” the court reasoned, refer to “a petition to the tax court that: (1) arises from 'a determination under this section' and (2) was filed 'within 30 days' of that determination.” Id. at 6a-7a (quoting 26 U.S.C. § 6330(d)(1)).

The Eighth Circuit acknowledged that the D.C. Circuit had reached the opposite conclusion regarding the filing deadline in 26 U.S.C. § 7623(b)(4), which includes “an identically worded parenthetical.” Pet. App. 5a; see Myers v. Commissioner, 928 F.3d 1025, 1034-36 (D.C. Cir. 2019). But while conceding that “there might be alternative ways that Congress could have stated the jurisdictional nature of the statute more plainly,” the court believed that Congress had “spoken clearly enough.” Pet. App. 7a-8a.

Because the court of appeals held that Section 6330(d)(1)'s filing deadline was jurisdictional, it did not consider whether the deadline would otherwise be subject to equitable tolling or whether petitioner's circumstances would warrant tolling. Id. at 8a n.3.

b. Judge Kelly concurred in part and concurred in the judgment. Id. at 10a. Judge Kelly believed that a prior circuit decision had already held the Section 6330(d)(1) deadline jurisdictional, and she felt bound to affirm the Tax Court for that reason. Id. at 10a-11a. But she was “not convinced the statute contains a sufficiently clear statement to justify this result.” Id. at 12a.

Judge Kelly observed that the Eighth Circuit's position is “an unusual departure from the ordinary rule that filing deadlines are 'quintessential claim-processing rules.'” Id. (quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). She emphasized that treating the filing deadline as jurisdictional could have “'drastic' consequences for litigants.” Id. (quoting Henderson, 562 U.S. at 435). And she expressed concern that “the burden may fall disproportionately on low-income taxpayers.” Id.

5. The Eighth Circuit denied a petition for rehearing en banc, with three judges (Judges Loken, Colloton, and Kelly) voting to grant. Pet. App. 16a.

SUMMARY OF ARGUMENT

The question presented is whether the 30-day limitations period in Section 6330(d)(1) is a jurisdictional requirement or a claim-processing rule subject to equitable tolling. This Court's precedent provides a clear answer: the deadline is not jurisdictional and it may be equitably tolled.

I. Under well-settled law, limitations periods are treated as nonjurisdictional claim-processing rules unless Congress clearly says otherwise. Section 6330(d)(1) has no clear statement.

That provision accomplishes two things: (i) it confers jurisdiction on the Tax Court over a petition for review of a CDP determination and, separately, (ii) it instructs the taxpayer to file a petition within 30 days of the CDP determination. This reading gives the phrase “such matter” in the jurisdictional parenthetical its most natural and proximate antecedent — consistent with the rules of grammar and the ordinary meaning of the word “matter.” It gives due regard to the notable absence of conditional language found elsewhere in the Internal Revenue Code. It is the only way to make sense of Section 6330(d)(1)'s statutory history. And it is consistent with the remedial purpose of the CDP review scheme.

The Commissioner and the Eighth Circuit read “such matter” to condition the Tax Court's jurisdiction on the 30-day filing deadline. But those alternative interpretations require linguistic maneuvers that are far from intuitive. They also cannot be squared with Section 6330(d)(1)'s history or purpose. Most importantly, they at best gives rise to ambiguity. That is never enough to carry the day when a clear statement from Congress is required. And the Commissioner cannot fall back on historical context or stare decisis in this case.

II. Under equally well-settled law, nonjurisdictional statutes of limitations are presumptively subject to equitable tolling. That presumption is reinforced here, based on the timing of Section 6330(d)(1)'s enactment. And there is nothing unique about Section 6330(d)(1)'s limitations period to overcome that general rule.

Quite the contrary. The time limit is not written in particularly emphatic terms: it states that a taxpayer “may, within 30 days” petition the Tax Court for review. The entire purpose of the CDP regime is to provide taxpayers with additional process, including external judicial review. And the subject matter of CDP proceedings is inherently equitable in nature. That all makes the limitations period in Section 6330(d)(1) qualitatively different from the limited instances in which this Court has found the presumption of equitable tolling overcome — and remarkably similar to those in which equitable tolling has been permitted. Finally, any concerns about administrability are both insufficient to overcome the presumption and overstated in any event.

ARGUMENT

The ultimate question in this case is whether the 30-day time period in Section 6330(d)(1) is subject to equitable tolling. The Commissioner has advanced two arguments for why it is not: (i) the filing deadline is jurisdictional, and (ii) even if the deadline is not jurisdictional, it still is not subject to equitable tolling for other reasons. BIO 9, 25. The Eighth Circuit held that the deadline is jurisdictional, and accordingly did not reach the Commissioner's second argument. Pet. App. 8a n.3. Given that framing and the disposition below, petitioner addresses both arguments — but begins with the threshold jurisdictional question. See United States v. Kwai Fun Wong, 575 U.S. 402, 408-09 nn.2-3 (2015); Pet. Reply 10.

I. THE LIMITATIONS PERIOD IN SECTION 6330(d)(1) IS NOT JURISDICTIONAL

A. Limitations Periods Are Rarely Jurisdictional

In a series of decisions over the past two decades, this Court has endeavored “to ward off profligate use of the term 'jurisdiction.'” Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153 (2013). Jurisdictional requirements “'speak to the power of the court'” to adjudicate a dispute, as opposed to “'the rights or obligations of the parties.'” Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994) (quoting Republic Nat'l Bank of Miami v. United States, 506 U.S. 80, 100 (1992) (Thomas, J., concurring in part and concurring in the judgment)). They “delineat[e] the classes of cases (subject-matter jurisdiction) . . . falling within a court's adjudicatory authority.” Kontrick v. Ryan, 540 U.S. 443, 455 (2004).

“Among the types of rules that should not be described as jurisdictional” are what this Court has called “claim-processing rules.” Henderson v. Shinseki, 562 U.S. 428, 435 (2011). Such rules “requir[e] that the parties take certain procedural steps at certain specified times.” Id. And although these rules serve the important goal of “promot[ing] the orderly progress of litigation,” a party's compliance does not constrain the tribunal's authority to hear the case. Id.

The distinction is “not merely semantic but one of considerable practical importance.” Id. at 434. “Branding a rule as going to a court's subject-matter jurisdiction alters the normal operation of our adversarial system.” Id. A jurisdictional requirement cannot be waived or forfeited; it must be considered by the court sua sponte at any time, even after trial or on appeal. See id. There can be no equitable exceptions. See Auburn Reg'l, 568 U.S. at 154. Nor can an agency create regulatory exceptions. See id. Dismissal is the only option. See Hamer v. Neighborhood Housing Servs. of Chicago, 138 S. Ct. 13, 17 (2017).

“Because the consequences that attach to the jurisdictional label” are so “drastic,” this Court has tried “to bring some discipline” to the term. Henderson, 562 U.S. at 435. To that end, the Court has adopted a “'readily administrable bright line.'” Auburn Reg'l, 568 U.S. at 153 (quoting Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006)). Although Congress need not “incant magic words,” a claim-processing requirement will be deemed jurisdictional only if there is a “clear statement” to that effect. Auburn Reg'l, 568 U.S. at 153; see Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1850 (2019); Hamer, 138 S. Ct. at 20 n.9; Musacchio v. United States, 577 U.S. 237, 246 (2016); Kwai Fun Wong, 575 U.S. at 409; Gonzalez v. Thaler, 565 U.S. 134, 141-42 (2012); Henderson, 562 U.S. at 435-36; Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 163 (2010); Arbaugh, 546 U.S. at 515-56.

This clear-statement rule is meant to “leave the ball in Congress' court.” Arbaugh, 546 U.S. at 515. It is an approach “suited to capture Congress' likely intent.” Henderson, 562 U.S. at 436. But it serves another purpose too. Requiring Congress to make its intentions express ensures that courts and litigants will be “duly instructed” and not “left to wrestle with the issue.” Arbaugh, 546 U.S. at 515-16; see Henderson, 562 U.S. at 436 (the bright-line rule requires Congress to provide “guidance”).

Under this now well-settled approach, the Court has “repeatedly held that filing deadlines ordinarily are not jurisdictional.” Auburn Reg'l, 568 U.S. at 154; see Musacchio, 577 U.S. at 246; Arbaugh, 546 U.S. at 510. “Time and again,” the Court has “described filing deadlines as 'quintessential claim-processing rules'” that “do not deprive a court of authority to hear a case.” Kwai Fun Wong, 575 U.S. at 410 (quoting Henderson, 562 U.S. at 435). There is accordingly a “high bar” before a time limit will be deemed so “exceptional” that it can be “rank[ed]” as jurisdictional. Kwai Fun Wong, 575 U.S. at 409; Auburn Reg'l, 568 U.S. at 155; see Hamer, 138 S. Ct. at 20 n.9. The 30-day filing deadline in Section 6330(d)(1) is hardly that exceptional case.

B. The Limitations Period Is Not Jurisdictional Under The Most Natural Reading Of Section 6330(d)(1)

To satisfy the clear-statement rule, the “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. Using those tools here, Congress did not “do something special” to “tag” the limitations period in Section 6330(d)(1) as jurisdictional. Id.

1. The Statutory Text Does Not Condition Jurisdiction On The Limitations Period

Section 6330(d)(1) states: “The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter).” 26 U.S.C. § 6330(d)(1). Section 6330(d)(1) thus does two distinct things: (i) confers jurisdiction on the Tax Court to adjudicate petitions for review of CDP determinations, and (ii) provides a statute of limitations telling taxpayers to file their petitions within 30 days of the CDP determination. The Tax Court's jurisdiction is not “link[ed]” to, or otherwise conditioned on, compliance with the 30-day limitations period. Kwai Fun Wong, 575 U.S. at 412.

a. At the outset, the fact that Section 6330(d)(1) includes both the word “jurisdiction” and the 30-day limitations period does not answer the question presented. That is because a procedural requirement's proximity to a jurisdictional grant does not confer jurisdictional status. Or, as the Court phrased it in Auburn Regional: “[a] requirement we would otherwise classify as nonjurisdictional . . . does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions.” 568 U.S. at 155; see Gonzalez, 565 U.S. at 147 (“Mere proximity will not turn a rule that speaks in nonjurisdictional terms into a jurisdictional hurdle.”).

This Court has accordingly found procedural requirements nonjurisdictional even when one or more jurisdictional requirements appeared in the same subsection. See Fort Bend, 139 S. Ct. at 1851 n.8; Gonzalez, 565 U.S. at 143, 146-47. It has also deemed a deadline nonjurisdictional when it appeared in the same sentence as a jurisdictional requirement. See Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975). The Court has even rejected an argument that (purportedly) jurisdictional requirements appearing in the same conditional clause as a time limit were enough to render the latter jurisdictional. See Auburn Reg'l, 568 U.S. at 155 (addressing 42 U.S.C. § 1395oo(a), which stated that a provider “may obtain a hearing . . . if” three conditions are met); see also 42 U.S.C. § 1395oo(a) (listing filing deadline as third condition).

b. The real question is whether the limitations period is linked to the jurisdictional grant, such that the Tax Court's authority to adjudicate the petition is conditioned on the taxpayer filing the petition within 30 days. Section 6330(d)(1) defines the scope of the Tax Court's jurisdiction: it has “jurisdiction with respect to such matter.” 26 U.S.C. § 6330(d)(1). The critical interpretative issue, then, is what does “such matter” refer back to. The answer: a petition for review of a CDP determination.

In this context, “such” functions as a demonstrative adjective, or a “pointing word.” Bryan A. Garner, Garner's Modern English Usage 873 (4th ed. 2016) (capitalization normalized); id. (“Such is properly used as an adjective when reference has previously been made to a category of people or things: hence such means 'of that kind'. . . .”). So it needs an antecedent. The most logical candidate is the immediately preceding phrase: “petition [to] the Tax Court for review of such determination.”⁴ “Such determination,” in turn, refers back to its immediately preceding antecedent: “a determination under this section.” And “this section” refers to Section 6330, i.e., the section providing for a CDP hearing. Putting that together, “such matter” is shorthand for a more cumbersome phrase: “petition [to] the Tax Court for review of” “a determination under [Section 6330].”

So understood, the parenthetical provides that the Tax Court “shall have jurisdiction with respect to” a petition for review of a CDP determination. Nothing less, nothing more. Or, as the D.C. Circuit put it, “such matter” means “the subject of litigation previously specified” in the sentence, which is a petition “to the Tax Court” seeking review of a certain type of decision. Myers v. Commissioner, 928 F.3d 1025, 1035 (D.C. Cir. 2019).

This interpretation of “such matter” follows the last-antecedent rule. As Chief Justice Ellsworth explained in the Court's very first articulation of the principle, “'such' applies to the last antecedent, unless the sense of the passage requires a different construction.” Sims's Lessee v. Irvine, 3 U.S. (3 Dall.) 425, 444 n.* (1799); see Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 146 (2012) (discussing Sims's Lessee and the last-antecedent rule's application to “such”). Under that rule, a “demonstrative adjective generally refers” only “to the nearest reasonable antecedent” — and not to additional reference points that are more remote. Scalia & Garner, supra, at 144. The nearest reasonable antecedent here is “petition [to] the Tax Court,” and that construction makes perfect sense.

The sentence's structure — which clearly separates the 30-day filing deadline from the jurisdictional grant — confirms that reading. See William Strunk Jr. & E.B. White, The Elements of Style 28-30 (4th ed. 2000) (explaining that the “position of the words in a sentence is the principal means of showing their relationship,” which is why drafters should “[k]eep related words together”). The filing deadline is located in a prepositional phrase, offset by commas, that modifies the auxiliary verb “may” (not the whole verb phrase “may petition”). This phrase is part of the first independent clause in the sentence, which explains what the person may do. The jurisdictional grant is then set apart in a parenthetical at the end of the sentence, and it speaks to what the Tax Court shall do. Properly read, the deadline “does not speak to a court's authority, but only to a party's procedural obligations.” EPA v. EME Homer City Generation, L.P., 572 U.S. 489, 512 (2014); cf. Kwai Fun Wong, 575 U.S. at 429 (Alito, J., dissenting) (noting that “run-of-the-mill limitations provision[s]” often speak to what a “person” may or shall do).

Defining “such matter” to refer simply to a petition seeking review of a CDP determination also accords with the ordinary meaning of the word “matter.” The term is often used in the legal context to mean “case.” Black's Law Dictionary (11th ed. 2019) (“A subject under consideration, esp. involving a dispute or litigation; CASE. . . .”). It is quite common, in fact, to hear a lawyer discussing a “matter” (read: “case”) she is currently working on. And a court's subject-matter jurisdiction, incidentally, is defined as the “class[ ] of cases . . . falling within a court's adjudicatory authority.” Kontrick, 540 U.S. at 455 (emphasis added). Not surprisingly, then, Congress has used the word “matter” in a variety of other statutes to refer to a type of action, proceeding, or controversy. See, e.g., 18 U.S.C. §§ 1001, 1519; 28 U.S.C. §§ 1362, 1491(a)(2). Congress followed that same well-traveled path here.

c. There is nothing else in Section 6330(d)(1) to provide the necessary textual link between the grant of jurisdiction and the filing deadline. This Court, for example, has suggested that one way to speak in “jurisdictional terms” would be to say that a court has “jurisdiction” “only if” a requirement is satisfied. V.L. v. E.L., 577 U.S. 404, 408-09 (2016) (per curiam). But Section 6330(d)(1) is devoid of that sort of conditional language too. See Myers, 928 F.3d at 1035 n.‡ (noting that the analogous 26 U.S.C. § 7623(b)(4) does not use the word “if”).⁵

That absence is notable because Congress has used conditional “if” language in other provisions that both confer jurisdiction on the Tax Court and provide filing deadlines. Just two years prior, Congress had enacted a provision giving the Tax Court “jurisdiction over any action . . . to determine whether the Secretary's failure to abate interest under this section was an abuse of discretion, . . . if such action is brought within 180 days.” 26 U.S.C. § 6404(g) (Supp. III 1998) (emphasis added) (currently codified at 26 U.S.C. § 6404(h)); see Taxpayer Bill of Rights 2, Pub. L. No. 104-168, § 302, 110 Stat. 1452, 1457 (1996). Indeed, in the very same legislation adopting Section 6330(d)(1), Congress used conditional language when describing the filing deadline for stand-alone taxpayer petitions seeking review of “innocent spouse” defenses. Pub. L. No. 105-206, § 3201, 112 Stat. at 738. As enacted, Section 6015(e)(1)(A) provided: “The individual may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed during the 90-day period [following a notice of determination].” 26 U.S.C. § 6015(e)(1)(A) (Supp. IV 1999) (emphasis added).

Outside the Tax Court context, Congress similarly has used expressly conditional language to confer jurisdictional status on certain preconditions to judicial review. The diversity jurisdiction statute, for example, provides that the “district court shall have original jurisdiction of all civil actions where the amount in controversy exceeds . . . $75,000.” 28 U.S.C. § 1332(a) (emphasis added); see Arbaugh, 546 U.S. at 514-15. And a court of appeals does not have jurisdiction to rule on a habeas petition “[u]nless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1) (emphasis added); see Fort Bend, 139 S. Ct. at 1849; Gonzalez, 565 U.S. at 143.

The availability (and use) of these alternative formulations — and the absence of any conditional language in Section 6330(d)(1) — is further evidence that Congress did not imbue the 30-day limitations period with jurisdictional significance. See Henderson, 562 U.S. at 438-39 (noting that Congress “could have cast” the provision at issue “in language like” another statutory deadline, which was more obviously jurisdictional); Gomez-Perez v. Potter, 553 U.S. 474, 487 (2008).

2. The Statutory History Strongly Reinforces The Plain Text

The statutory history strongly reinforces the plain reading of the operative text. As originally enacted, Section 6330(d)(1) provided for review of CDP determinations in both the Tax Court and the district courts, depending on the kind of tax at issue. See supra at 6-7. The original provision read:

The person may, within 30 days of a determination under this section, appeal such determination —

26 U.S.C. § 6330(d)(1) (Supp. IV 1999). Significantly, Subparagraph (A) includes essentially the same “jurisdiction” parenthetical that exists today, but Subparagraph (B) does not.⁶ This drafting choice is readily explained if the parenthetical is understood to simply grant the Tax Court jurisdiction over CDP petitions. It is inexplicable if the parenthetical also conditions the Tax Court's jurisdiction on the 30-day deadline.

Congress needed to confer jurisdiction on the Tax Court to adjudicate petitions seeking review of CDP determinations. See 26 U.S.C. § 7442. But there was no need to do the same for district courts. Congress had elsewhere specified that district courts have subject-matter jurisdiction over cases arising under federal statutes, 28 U.S.C. § 1331, and cases involving the federal tax laws specifically, id. § 1340. Including a grant of jurisdiction in Subparagraph (A) (i.e., for the Tax Court) and not Subparagraph (B) (i.e., for district courts) was a perfectly logical distinction.

But if the Subparagraph (A) parenthetical were read to also condition the Tax Court's jurisdiction on the 30-day deadline, that logical distinction falls apart. Under the Court's clear-statement rule, there could be no argument that the district courts' jurisdiction was conditioned on compliance with the 30-day time limit. And why would Congress have limited the Tax Court's jurisdiction to CDP petitions filed within 30 days, but not a district court's jurisdiction over the same kind of petition? No answer is apparent. The only plausible reading of the original enactment, then, is that the time limit was not jurisdictional.

Nothing has changed since 1998 to transform the nonjurisdictional filing deadline into a jurisdictional one. Congress amended the statute in 2006 to eliminate the district courts' jurisdiction, but it made no changes to the language in Subparagraph (A). See Pension Protection Act of 2006, Pub. L. No. 109-280, § 855(a), 120 Stat. 789, 1019; see supra n.6. That language means the same thing today as it did in 1998: the Tax Court has jurisdiction over petitions for review of CDP determinations, period.

3. The Purpose Of CDP Proceedings Supports A Nonjurisdictional Reading

Another “telling” indication that Congress did not intend to condition the Tax Court's jurisdiction on compliance with the limitations period is the purpose and “characteristics” of the review scheme at issue — here, a collection due process proceeding. Henderson, 562 U.S. at 440; see Dolan v. United States, 560 U.S. 605, 611 (2010).

As an initial matter, none of the congressional reports accompanying the 1998 Restructuring and Reform Act called the 30-day time limit jurisdictional, or even hinted as much. See S. Rep. No. 105-174, at 68-69 (1998); H.R. Rep. No. 105-599, at 264, 266 (1998) (Conf. Rep.). Nor did Congress ever describe the deadline as jurisdictional when amending Section 6330(d) in the ensuing years.⁷ So even if legislative history could itself provide a clear statement, which is doubtful, it does not do so here. Cf. Kwai Fun Wong, 575 U.S. at 412.

What the relevant history does reveal is a review scheme fundamentally at odds with a harsh jurisdictional rule. Section 6330 was part of landmark legislation that was “decidedly favorable to” taxpayers. Henderson, 562 U.S. at 441. The paramount purpose of the new collection due process regime was — as the title suggests — to give taxpayers facing collection actions more procedural rights. 26 U.S.C. § 6330; see supra at 4-5.

Section 6330 was at its essence “remedial” legislation. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982); see Auburn Reg'l, 568 U.S. at 159-60. And ensuring meaningful judicial review was a key part of the remedy provided. Because Congress wanted to stamp out “perceived abuses in the Government's exercise of its administrative collection powers,” it was “not content in supplying an additional administrative hearing alone.” Harold Dubroff & Brant J. Hellwig, The United States Tax Court: An Historical Analysis 488 (2d ed. 2014), https://www.ustaxcourt.gov/resources/book/Dubroff_ Hellwig.pdf. Congress went further: it “subjected the administrative hearing to judicial review.” Id.; see Michael I. Saltzman & Leslie Book, IRS Practice & Procedure ¶ 14B.16 (Oct. 2021, Westlaw) (enabling the taxpayer “to go to court” to challenge IRS collections “mark[ed] the true radical departure from [pre-Act] practice”). Indeed, the legislative hearings and debates emphasized the importance of external checks on the IRS's authority.⁸ Imposing a rigid jurisdictional deadline with no escape valve would “clash sharply” with this scheme. Henderson, 562 U.S. at 441.

That is all the more true because the CDP regime is one “in which laymen, unassisted by trained lawyers,” often “initiate the process.” Zipes, 455 U.S. at 397 (citation omitted). The majority of taxpayers who seek review of CDP determinations (61%) are representing themselves pro se. National Taxpayer Advocate, Annual Report to Congress 2020, at 188 (Dec. 31, 2020), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2021/01/ARC20_FullReport.pdf. And the vast majority (90%) are individuals and not businesses. Id. As the IRS National Taxpayer Advocate has emphasized, “[u]nrepresented taxpayers may be less likely to anticipate the severe consequences of filing a Tax Court petition even one day late.” National Taxpayer Advocate, 2021 Purple Book 100-01 (Dec. 31, 2020), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2021/01/ARC20_PurpleBook.pdf.

It is implausible that the same Congress that showed so much solicitude for taxpayers facing IRS levies would have eschewed an ordinary filing deadline in favor of a “rare” jurisdictional one, with all the “harsh consequences” that follow. Kwai Fun Wong, 575 U.S. at 409-10. Which further supports a nonjurisdictional reading.

C. There Is (At Least) No Clear Statement That Section 6330(d)(1) Is The Rare Jurisdictional Limitations Period

A plain reading of Section 6330(d)(1) shows that the 30-day deadline does not limit the Tax Court's subject-matter jurisdiction. But even if there were some doubt on that score, the Court's case law requires considerably more clarity than the text provides. The arguments the Commissioner has pressed to date fail on their own terms and, at least, fall far short of the requisite clear statement.

1. The Commissioner's Alternative Interpretation Is The Opposite Of Clear

a. The Commissioner's textual argument for why the 30-day time limit is jurisdictional rests on an alternative reading of “such matter.” In his brief in opposition, the Commissioner took the position that the phrase “most naturally refers to both the 'determination under this section' of which a person seeks judicial review and the 'petition . . . for review of such determination' by which such review may be sought if filed 'within 30 days of [the] determination.'” BIO 10-11 (quoting 26 U.S.C. § 6330(d)(1)) (alterations in original).

There is nothing natural about that sentence. Many of the words do not appear in Section 6330(d)(1) — most noticeably, the conditional phrase “if filed,” as well as the connecting phrase “by which such review may be sought.” And the repeated use of “determination” and “review” appears to make the second half of the sentence subsume the first. The Commissioner has pointed to no rule of grammar or syntax to support his construction.

The same goes for the Eighth Circuit. The majority believed “such matter” refers to “a petition to the tax court that: (1) arises from 'a determination under this section' and (2) was filed 'within 30 days' of that determination.” Pet. App. 6a-7a. But like the Commissioner's, that reading takes a prepositional phrase (“within 30 days of a determination”) that restricts a different verb (“may”) attached to a different subject (“person”) — and transforms it into a new phrase (“that . . . was filed 'within 30 days'”), modifying an entirely different noun (“petition”). “That maneuver has no grammatical basis” either. Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct. 1061, 1077 (2018).

The crux of both interpretations is the notion that “such matter” must somehow, in some way, incorporate everything that came earlier in the sentence. But as explained above, that runs afoul of the last-antecedent rule and ignores the sentence structure. See supra at 19-20. According to the Commissioner and the Eighth Circuit, the reader should not only transform “petition” into a noun (an admitted feature of petitioner's interpretation too, see supra at n.4), but then continue to read on, past the comma, to incorporate a prepositional phrase that restricts the action of a different subject. There is no basis to perform such linguistic gymnastics. See Fort Bend, 139 S. Ct. at 1851 n.8 (refusing to read Title VII's charge-filing requirement as “textually linked” to the statute's jurisdictional provision by way of a vague cross-reference).

b. This debate about the intended antecedent for “such matter,” though, really just proves a more critical point: Section 6330(d)(1) does not have the clarity necessary to “rank” this limitations period as jurisdictional. Auburn Reg'l, 568 U.S. at 155.

Petitioner advances an alternative to the Commissioner's reading, which was adopted by the D.C. Circuit and is at the very least plausible. See Part I.B, supra; Myers, 928 F.3d at 1034-35. But there are other alternative readings too. “Such matter” instead could be referring back to the list of “[m]atters” that may be considered during the CDP hearing. See 26 U.S.C. § 6330(c) (titled “Matters considered at hearing”); Bryan T. Camp, New Thinking About Jurisdictional Time Periods in the Tax Code, 73 Tax L. 1, 38 (2019) (advancing this reading). Or “such matter” could just be another way of saying “such determination.” See Deal v. United States, 508 U.S. 129, 134 (1993) (noting that “Congress sometimes uses slightly different language to convey the same message”); cf. Pereira v. Sessions, 138 S. Ct. 2105, 2118 (2018) (concluding that three different statutory phrases refer to the same thing). Indeed, one might reasonably argue that Congress's use of the phrase “such matter” without a corresponding use of “matter” earlier in the sentence itself creates ambiguity. See Garner, supra, at 873 (calling sentence “vague[ ]” if it uses “such [noun]” without using the same noun previously in the sentence, because then there is no “clear antecedent”).

The entire point of this Court's recent jurisprudence is to have a “readily administrable bright line” so that courts and litigants “will not be left to wrestle with the issue.” Arbaugh, 546 U.S. at 515-16. That other sensible readings exist proves that Congress's intent to impose a jurisdictional time limit through the use of “such matter” is not clear. Cf. Sossamon v. Texas, 563 U.S. 277, 287 (2011) (applying clear-statement rule and holding that, if a statute has “multiple plausible interpretations,” the Court will adopt the one that preserves immunity); INS v. St. Cyr, 533 U.S. 289, 316-17 (2001) (applying clear-statement rule and holding that the language must be “so clear” as to “sustain only one interpretation” (citation omitted)).

c. Nor can contextual clues supply the needed clarity. The Commissioner has argued that Section 6330(e)(1) supports a jurisdictional reading of the limitations period in Section 6330(d)(1). BIO 11. It does not.

Section 6330(e)(1) provides that any levy actions (along with certain statutes of limitations) must be suspended during the pendency of the taxpayer's CDP hearing and any subsequent appeals. 26 U.S.C. § 6330(e)(1). And it creates an exception to the Anti-Injunction Act, granting a “proper court, including the Tax Court” authority to enjoin any levy or proceeding that goes forward in violation of that suspension. Id.; see id. § 7421(a). The paragraph then instructs: “The Tax Court shall have no jurisdiction under this paragraph to enjoin any action or proceeding unless a timely appeal has been filed under subsection (d)(1) and then only in respect of the unpaid tax or proposed levy to which the determination being appealed relates.” Id. § 6330(e)(1).

Section 6330(e)(1)'s statement about the Tax Court's jurisdiction “under this paragraph” plainly applies only to the Tax Court's authority to issue injunctions, not to its authority to adjudicate petitions for review of CDP determinations. See Reed Elsevier, 559 U.S. at 164 (reasoning that a subsection's reference to the court's “jurisdiction” with respect to a specific “issue” was not probative of whether another requirement in the subsection was jurisdictional). If anything, Section 6330(e)(1) shows that “Congress would have spoken in clearer terms” if it intended Section 6330(d)(1) “to have similar jurisdictional force.” Gonzalez, 565 U.S. at 143.

The Commissioner has nonetheless argued that it would be “incongruous” for Congress to make the Tax Court's jurisdiction to enjoin levy actions contingent on a “timely” petition, while not so limiting the court's jurisdiction to adjudicate the petition itself. BIO 11-12. But the word “timely” in Section 6330(e)(1) is best read to include a petition rendered timely by operation of law because the 30-day period has been equitably tolled. See, e.g., In re Milby, 875 F.3d 1229, 1235 (9th Cir. 2017) (calling an action “timely” when equitable tolling applied). Any perceived “incongruity” is thus vastly overstated.

Even if the law were otherwise, the supposed incongruity would arise only when the taxpayer fails to file a Tax Court petition within 30 days, the IRS begins executing a levy on the taxpayer's property, the taxpayer files a petition while the levy action is ongoing, the Tax Court later determines that the late filing should be excused, and the IRS refuses to voluntarily stop the levy. The Commissioner concedes that the taxpayer could still seek recourse from a district court in that situation. BIO 12. He merely suggests it would be “peculiar” for Congress to require such a “dual-track mode of procedure.” Id. at 12-13 (citation omitted). But given that this is a fairly remote set of circumstances to begin with, the possibility of dual proceedings is not so “tellingly awkward” as to compel a jurisdictional reading of Section 6330(d)(1). Hinck v. United States, 550 U.S. 501, 509 (2007); see id. at 508-09 (rejecting argument that the possibility of claim-splitting precluded reading a statute to confer exclusive jurisdiction on the Tax Court). And certainly not under a clear-statement rule.

2. There Is No Longstanding Jurisdictional Interpretation To Fall Back On

This Court has on occasion deemed particular statutory time periods jurisdictional not because Congress clearly stated as much in the text, but because of their prior treatment by this Court. The Commissioner has previously relied on these decisions. BIO 13-14. They have no application here.

In Bowles v. Russell, this Court held that the statutory time limit on taking an appeal from one Article III court to another is jurisdictional based on the Court's “longstanding treatment” of such time limits. 551 U.S. 205, 209-11 (2007); see Reed Elsevier, 559 U.S. at 168 (explaining that “[t]he statutory limitation in Bowles was of a type that we had long held did 'speak in jurisdictional terms' even absent a 'jurisdictional' label” (citation omitted)). And in John R. Sand & Gravel Co. v. United States, this Court adhered to its prior “definitive interpretation” of the Tucker Act's limitations period, which the Court had held to be jurisdictional in decisions dating back to the nineteenth century. 552 U.S. 130, 135-37 (2008).

The Court has sometimes described these cases as standing “for the proposition that context, including this Court's interpretation of similar provisions in many years past, is relevant” to discerning congressional intent. Reed Elsevier, 559 U.S. at 168; see Auburn Reg'l, 568 U.S. at 153-54. Other times the Court has explained them as a kind of stare decisis exception to the clear-statement rule. See Kwai Fun Wong, 575 U.S. at 416 (explaining that the result in John R. Sand “came down to two words: stare decisis”). Either way, the takeaway is clear: to escape the clear-statement rule, there must at least be an on-point holding by this Court. See Fort Bend, 139 S. Ct. at 1849 (The Court “treat[s] a requirement as 'jurisdictional' when a long line of [Supreme] Cour[t] decisions left undisturbed by Congress attached a jurisdictional label to the prescription.” (alterations in original) (internal quotation marks omitted)); Reed Elsevier, 559 U.S. at 167-68; id. at 173 (Ginsburg, J., concurring in part and concurring in the judgment).

Take this Court's decision in Kwai Fun Wong. There, the government argued that the Court had repeatedly held the Tucker Act's time bar to be jurisdictional (see John R. Sand); that Congress had thereafter adopted identical language for the time bar in the Federal Tort Claims Act; and that Congress would have wanted the two statutes to operate the same way. See Kwai Fun Wong, 575 U.S. at 412-13. The Court disagreed, and held that this historical context could not supply “the needed clear statement” the text lacked. Id. at 416-17.

So too here — and then some. Not only is there no “long line of [this Court's] decisions left undisturbed by Congress” on which to rely. Fort Bend, 139 S. Ct. at 1849. There is not even a single decision. This Court has never treated Section 6330(d)(1)'s time limit as jurisdictional. The Court has never treated an analogous time limit with identical language as jurisdictional. Nor has it consistently treated any time limit of the same type to be jurisdictional.⁹ Historical context thus offers the Commissioner no refuge from the clear-statement rule.

* * *

In the end, “[n]either the text nor the context nor the legislative history indicates (much less does so plainly) that Congress meant to enact something other than a standard time bar.” Kwai Fun Wong, 575 U.S. at 410. Under this Court's bright line, Section 6330(d)(1) imposes a nonjurisdictional claim-processing rule.

II. THE LIMITATIONS PERIOD IN SECTION 6330(d)(1) IS SUBJECT TO EQUITABLE TOLLING

A. Limitations Periods Are Presumptively Subject To Equitable Tolling

Statutory time limits are presumptively subject to equitable tolling. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95-96 (1990). This is true whether the suit is against a private party or the federal government — even when it implicates the government's sovereign immunity. Id.; see Kwai Fun Wong, 575 U.S. at 407 (“[Irwin] sets out the framework for deciding the applicability of equitable tolling in suits against the Government.” (internal quotation marks omitted)). The same “general rule” in favor of tolling applies because it is “likely to be a realistic assessment of legislative intent” and because it produces consistency and predictability. Irwin, 498 U.S. at 95; see Kwai Fun Wong, 575 U.S. at 408. Put simply, the Irwin presumption is “hornbook law.” Young v. United States, 535 U.S. 43, 49 (2002); see Kwai Fun Wong, 575 U.S. at 407-08; Holland v. Florida, 560 U.S. 631, 645-46 (2010); BIO 14-15.

This presumption is “reinforced” when (as here) the time limit was adopted after Irwin. Holland, 560 U.S. at 646. In those instances, Congress “was likely aware that courts” would interpret the relevant “timing provision” to “apply the presumption.” Id.; see Young, 535 U.S. at 49-50; Minerva Surgical, Inc. v. Hologic, Inc., 141 S. Ct. 2298, 2319 (2021) (Barrett, J., dissenting) (“[A] federal statute of limitations ordinarily is subject to equitable tolling even when the text is silent because 'Congress must be presumed to draft limitations periods in light of this background principle.'” (quoting Young, 535 U.S. at 49-50)).

“Congress, of course, may provide otherwise if it wishes to do so.” Irwin, 498 U.S. at 96. One way is to make a statute of limitations jurisdictional. Kwai Fun Wong, 575 U.S. at 420. But that “requires its own plain statement,” id., which cannot be found here for the reasons set forth above. See Part I, supra. And although the presumption can be overcome in other ways, there is nothing unique about Section 6330(d)(1)'s limitations period that clearly evidences Congress's intent to preclude equitable exceptions.

B. Nothing Rebuts The Irwin Presumption

1. The Text Of Section 6330(d)(1) Does Not Preclude Equitable Tolling

Nothing in the text of Section 6330(d)(1) precludes equitable tolling. There is no express prohibition. Nor is the 30-day limitations period written in “'emphatic form.'” Kontrick, 540 U.S. at 458 (quoting Kontrick Brief for the United States as Amicus Curiae 16 (July 17, 2003)). Section 6330(d)(1) simply provides that a person “may” petition the Tax Court for review “within 30 days of a determination under this section.” 26 U.S.C. § 6330(d)(1). It is directed at the taxpayer, not the court. Cf. Kwai Fun Wong, 575 U.S. at 429 (Alito, J., dissenting). And the time period is quite short: 30 days. See Holland, 560 U.S. at 647 (describing one-year limitations period as “not particularly long”).

In each of these respects, Section 6330(d)(1) is remarkably similar to the statutory time limit at issue in Irwin — which this Court had deemed subject to equitable tolling eight years prior. See 498 U.S. at 94-95 (“'Within thirty days of receipt of notice of final action . . . an employee or applicant for employment . . . may file a civil action. . . .'” (emphases added) (quoting 42 U.S.C. § 2000e-16(c))); cf. Kwai Fun Wong, 575 U.S. at 428-29 (Alito, J., dissenting) (emphasizing that “forever barred” language is “no weak-kneed command,” and describing Irwin language as a considerably “weaker command”). So even if the Irwin presumption could be overcome by particularly forceful language, no such argument could prevail here.

2. The Nature Of The Collection Due Process Regime Supports Equitable Tolling

“[E]quity . . . finds a comfortable home” in the CDP regime. Holland, 560 U.S. at 647. Section 6330 is a remedial statute with the core objective of enhancing the rights (including procedural rights) of taxpayers facing IRS collection actions. See supra at 25-27; see S. Rep. No. 105-174, at 67 (the CDP regime was intended to “increase fairness to taxpayers” through “formal procedures”). It is designed to be “protective” of taxpayers who might otherwise lose their wages, their car, or their business to pay a tax debt. Auburn Reg'l, 568 U.S. at 160. And it is a proceeding “in which laymen, unassisted by trained lawyers,” often 'initiate the process.'” Auburn Reg'l, 568 U.S. at 160 (quoting Zipes, 455 U.S. at 397); see id. (contrasting Medicare payment-review system that applies to “'sophisticated' institutional providers” who are “repeat players” with counsel (citation omitted)); see supra at 27.

The CDP proceedings themselves also involve inherently equitable determinations. Although the taxpayer can sometimes challenge the underlying tax liability in a CDP hearing, Congress's key innovation was to provide taxpayers with a mechanism to challenge the “appropriateness” of the IRS's chosen collection action. 26 U.S.C. § 6330(c)(2); see S. Rep. No. 105-174, at 67-68. The taxpayer can argue for alternatives to levy, including deferrals of collection due to hardship, substitution of other assets, an installment plan, or offers-in-compromise. See 26 U.S.C. § 6330(c)(2); Leslie Book, A Response to Professor Camp: The Importance of Oversight, 84 Ind. L.J. Supp. 63, 69 (2009) (noting that determinations regarding collection alternatives “raise individual particularized taxpayer interests”). With respect to offers-in-compromise specifically, Congress expected that the IRS would take into account “factors such as equity, hardship and public policy.” H.R. Rep. No. 105-599, at 289 (Conf. Rep.); see 26 C.F.R. § 301.7122-1(b) (implementing this guidance).

And Congress required the IRS Independent Office of Appeals to determine “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.” 26 U.S.C. § 6330(c)(3)(C). This “subjective balancing test” — which “necessitates consideration of the effect of collection on the taxpayer” — is itself a case-specific, equitable determination. Dubroff & Hellwig, supra, at 487.

These equitable determinations are then reviewable on appeal in the Tax Court. See Sego v. Commissioner, 114 T.C. 604, 608-10 (2000); Saltzman & Book, supra, ¶ 14B.16[5], [6]. Upon the filing of a petition for review, the Tax Court determines whether the taxpayer is entitled to any relief from the IRS's proposed collection. See Lundsford v. Commissioner, 117 T.C. 183, 185 (2001). The Tax Court can remand the case for the IRS to consider a collection alternative, or even order that it accept the alternative. Saltzman & Book, supra, ¶ 14B.16[9]. And the Tax Court can instruct the IRS to take particular considerations or circumstances into account. Id.; see, e.g., Bogart v. Commissioner, T.C. Memo. 2014-46, 2014 WL 1041443, at *1 (Mar. 18, 2014) (remanding where IRS did not “adequately consider” an offer-in-compromise on “public policy and equity grounds”).

In short, “all that is special” about the CDP regime “cuts in favor of allowing equitable tolling.” Kwai Fun Wong, 575 U.S. at 419.

3. This Court's Cases Rejecting Equitable Tolling Are Readily Distinguishable

Since Irwin, this Court has only rarely found the presumption in favor of equitable tolling to be overcome. The limitations periods at issue in those cases are fundamentally different than Section 6330(d)(1), and those critical distinctions support the availability of tolling here.

a. In United States v. Brockamp, this Court held that the two- and three-year limitations periods in 26 U.S.C. § 6511 for a taxpayer to file an administrative claim for a tax refund with the IRS are not subject to equitable tolling. 519 U.S. 347, 349 (1997). The Court provided a long list of “strong reasons” why Congress did not intend to permit equitable exceptions to those deadlines. Id. at 350-53; see Holland, 560 U.S. at 646-47 (listing five features in Brockamp). Beyond the superficial fact that Section 6330 is also part of the Internal Revenue Code, none applies to the 30-day deadline for judicial review in Section 6330(d)(1).

Section 6511 set forth its time deadlines “in unusually emphatic form.” Brockamp, 519 U.S. at 350. Congress “reiterate[d]” those time limitations several times in several different ways” — five total, to be exact. Id. at 351; see 26 U.S.C. §§ 6511(a), (b)(1), (b)(2)(A)-(B), 6514. Each time, Congress used the word “shall.” 26 U.S.C. §§ 6511(a), (b)(1), (b)(2)(A)-(B), 6514. And Section 6511 set forth numerous explicit exceptions to those time periods. Brockamp, 519 U.S. at 351; see 26 U.S.C. § 6511(d)(1)-(8). Reading an implicit equitable exception into those provisions, the Court explained, “would work a kind of linguistic havoc.” Brockamp, 519 U.S. at 352.

The limitations periods in Section 6511 were unusual in another respect too: they imposed “substantive limitations on the amount of recovery.” Id. Specifically, the amount of the tax refund available was keyed to the timing of the claim. Id. at 351. And the Court could find “no direct precedent” for this “kind of tolling.” Id. at 352.

So it was “Section 6511's detail, its technical language, the iteration of the limitations in both procedural and substantive forms, and the explicit listing of exceptions, taken together,” that led this Court to conclude that Congress did not intend any equitable exceptions. Id. (emphasis added). The “underlying subject matter — tax collection” only served to “underscore[ ] the linguistic point.” Id. The Court observed, for example, that the IRS processes hundreds of millions of tax returns per year and issues refunds in nearly one-hundred million cases. Id. If equitable tolling were available in these administrative refund actions, the Court reasoned, the IRS could face a staggering number of cases where the taxpayer brought an untimely claim and argued tolling. Id. The “nature and potential magnitude” of that “administrative problem,” the Court explained, counseled in favor of hewing closely to the statutory text. Id. at 352-53.

The 30-day judicial review filing deadline in Section 6330 is worlds apart from the administrative tax-refund deadlines in Section 6511 in every relevant respect. The limitations period in Section 6330(d)(1) is not unusually emphatic or repetitive. This is a deadline to petition a court, not an administrative agency. And in Section 6330(d)(1), Congress used “simple” language of the kind that Brockamp itself characterized as being “plausibly read as containing an 'equitable tolling' exception.” Id. at 350 (pointing to 42 U.S.C. § 2000e-16(c) as an example).

Section 6330 also does not have eight “explicit” and “very specific” statutory exceptions. Brockamp, 519 U.S. at 352. It has one — added in 2015 — that applies when the taxpayer is prohibited from filing a Tax Court petition by reason of a bankruptcy proceeding. 26 U.S.C. § 6330(d)(2); Protecting Americans From Tax Hikes Act of 2015, Pub. L. No. 114-113, Div. Q, § 424(b)(1)(D), 129 Stat. 2244, 3124. This is not akin to the carefully reticulated scheme that implicitly weighed against equitable tolling in Brockamp. If anything, the presence of the bankruptcy exception indicates that Congress did not consider Section 6330(d)(1) to be a hard-and-fast deadline categorically unsuited to exceptions. See Young, 535 U.S. at 53; Bowen v. City of New York, 476 U.S. 467, 480 (1986); cf. Holland, 560 U.S. at 647-48 (finding equitable tolling despite presence of express exception to deadline).

Nor does the 30-day deadline impose any “substantive limitations on the amount of recovery.” Brockamp, 519 U.S. at 352. Under Tax Court precedent, a taxpayer appealing a CDP determination cannot recover funds from the government. See McLane v. Commissioner, T.C. Memo. 2018-149, 2018 WL 4350097, at *5, *13 (Sept. 11, 2018), appeal pending, No. 20-1074 (4th Cir. docketed Jan. 23, 2020). And Section 6330 does not condition the ultimate non-monetary relief a taxpayer can receive on compliance with the deadline, either.¹⁰

The point of overlap, of course, is the fact that both provisions implicate tax collection. But there is no “tax collection exception” to Irwin's general rule. See Volpicelli v. United States, 777 F.3d 1042, 1046 (9th Cir. 2015) (holding that statutory deadline to file wrongful levy action against government in 26 U.S.C. § 6532(c) is subject to equitable tolling, notwithstanding Brockamp); cf. Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55 (2011) (refusing to “carve out an approach to administrative review good for tax law only”). And here there is no “linguistic point” for the tax-collection subject matter to “underscore[ ].” Brockamp, 519 U.S. at 352; see also Part II.B.4, infra (explaining why perceived administrative difficulties do not counsel against the availability of tolling).

b. The Court's decision in United States v. Beggerly, 524 U.S. 38 (1998), is even further afield. The Court there found the Irwin presumption overcome when the statute of limitations was an “'unusually generous'” 12 years, and the “underlying claim 'deal[t] with ownership of land,'” where the need for certainty was at its apex. Holland, 560 U.S. at 647-48 (alteration in original) (quoting Beggerly, 524 U.S. at 48-49). Neither describes Section 6330(d)(1)'s 30-day period to seek review of a CDP determination.

c. Which leaves this Court's decision in Nutraceutical Corp. v. Lambert, 139 S. Ct. 710 (2019), about the time limit for filing an interlocutory appeal from a class-certification decision under Federal Rule of Civil Procedure 23(f). There, the Court explained that Rule 23(f)'s filing deadline does not just stand on its own. It is reaffirmed in Federal Rule of Appellate Procedure 5(a)(2), which instructs that petitions for interlocutory review “must be filed within the time specified by . . . rule.” See Nutraceutical, 139 S. Ct. at 715. And the Federal Rules of Appellate Procedure “single out Civil Rule 23(f) for inflexible treatment” in other ways, too. Id. They generally allow courts to suspend the rules for “good cause” and to extend time limits — except when it comes to petitions for leave to appeal. Id. (quoting Fed. R. App. P. 2, 26(b)(1)). That “clear intent to compel rigorous enforcement” even when good cause might otherwise exist was enough to “overcome” any “background preference for flexibility.” Id. at 715, 716 n.5 (citing Young, 535 U.S. at 49). That “interlocutory appeal is an exception to the general rule that appellate review must await final judgment” only further reinforced that intent. Id. at 716.

The contextual factors that drove the outcome in Nutraceutical are absent here. Section 6330(d)(1)'s deadline is not reinforced elsewhere in the Internal Revenue Code. And no other provision singles out the 30-day time limit for inflexible treatment. The text, context, and remedial scheme at issue make this case far more like Bowen, Irwin, Young, and Holland, where this Court held that the presumption had not been rebutted and that the limitations periods were subject to equitable tolling.

4. Any Administrability Concerns Are Misplaced And Overstated

Concerns about administrability, standing alone, cannot overcome the Irwin presumption. The Commissioner has nevertheless argued that allowing equitable tolling might delay tax collection, and deprive the IRS of a “clear end date” for when the suspension period is lifted and it can begin levying the taxpayer's property. BIO 27. These concerns are overblown — and do not provide an “affirmative indication” that Congress precluded tolling. Kwai Fun Wong, 575 U.S. at 420.

To start, the potential administrative burdens the Commissioner alludes to are not remotely comparable to those raised in Brockamp. Unlike a refund claim, a taxpayer's success on a CDP petition does not take money out of the government's coffers. See supra at 42; Brockamp, 519 U.S. at 353 (referring to congressional objective of avoiding “stale demands” against the government). And while CDP proceedings are undoubtedly important to many taxpayers, the number of CDP hearings and subsequent Tax Court petitions are a tiny fraction of the number of tax returns and refund claims filed with the IRS each year.¹¹

The Commissioner's argument that the mere possibility of tolling could create undue delay and uncertainty is no more convincing. BIO 27. As noted, Section 6330(d)(2) already tolls the limitations period when the taxpayer is in bankruptcy proceedings and for 30 days thereafter. 26 U.S.C. § 6330(d)(2). The Internal Revenue Code sets forth other exceptions to statutory limitations periods, which the Commissioner has chosen to extend to Section 6330(d)(1) by regulation. See id. § 7508(a), (c) (exceptions for taxpayers who are members of the armed forces serving or injured in a combat zone or contingency operation, or their spouses); id. § 7508A(a), (d) (exceptions for taxpayers affected by a federally declared disaster, terrorism, or military action or who are providing disaster relief); 26 C.F.R. §§ 301.7508-1, 301.7508A-1(c)(iv); Rev. Proc. 2018-58 §§ 1.01-1.03, 4.02-4.03, 14.3, 2018 WL 6113260. And a petition is considered timely filed if postmarked by the filing deadline, even if it is delayed in transit and arrives late. 26 U.S.C. § 7502.

In all of these situations, a taxpayer would be eligible to seek relief from an IRS collection action after the 30-day period has expired — sometimes well after. Those exceptions and other means of calculating time (some of which the IRS has voluntarily put in place) create the same possibility of delay and uncertainty that the IRS warns about here. The mere availability of equitable tolling in compelling cases would not be a sea change.

The idea that equitable tolling would plague the CDP regime with administrative difficulties is also undercut by the views of another IRS official. Beginning in 2017, the National Taxpayer Advocate — an official within the IRS with expertise in tax law and procedure, see 26 U.S.C. § 7803(c) — has consistently recommended that Congress amend the Internal Revenue Code to expressly clarify that Tax Court deadlines, including the CDP appeal deadline, are subject to equitable tolling.¹² The National Taxpayer Advocate's judgment further weakens any claim that making tolling available in CDP appeals would result in significant disruption to tax administration.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

MELISSA ARBUS SHERRY
Counsel of Record
CAROLINE A. FLYNN
AMY FEINBERG
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2200
melissa.sherry@lw.com

Counsel for Petitioner

November 15, 2021