Firm Says Ninth Circuit Decision Not Relevant in Case

June 23, 2020

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

Re: Boechler, P.C. v. Commissioner of Internal Revenue, No. 19-2003 (argued June 17, 2020) Response to Letter of Supplemental Authority Filed Under Federal Rule of Appellate Procedure 28(j)

Dear Mr. Gans:

The Government advised this Court of the Ninth Circuit's decision in Organic Cannabis Foundation, LLC, DBA Organicann Health Center v. Commissioner, 2020 WL 3278718 (June 18, 2020), holding I.R.C. § 6213(a)'s filing deadline jurisdictional. It has no bearing on this case.

Section 6213(a) states: “Within 90 days . . . the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.” Several sentences then describe circumstances under which collections actions may begin before resolution of the case, before continuing: “The Tax Court shall have no jurisdiction to [enjoin any action] under this subsection unless a timely petition . . . has been filed. . . .” Organic Cannabis held that the word “jurisdiction” in the injunction sentence rendered the time deadlines in the entire subsection jurisdictional.

Unlike § 6213(a), § 6330(d)(1) does not condition jurisdiction to grant an injunction on a timely-filed petition; it does not speak to injunctions at all. And while the following subsection (§ 6330(e)(1)) does, that subsection is distinguishable. Section 6330(e)(1) limits Tax Court jurisdiction only “under this paragraph.” And, unlike the final sentence in § 6213(a), § 6330(e)(1) does not define “timely filed” in reference to the mailbox rule — or otherwise. A “timely appeal” under § 6330(e)(1) could therefore include one deemed timely by a counting rule or equitable tolling. That Congress separated the petition and injunction rights into different subsections in § 6330 strongly suggests that the Ninth Circuit's analysis is inapplicable.

In any event, the Ninth Circuit has already (wrongly) decided the question presented here, in Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018). Duggan demonstrates that the Ninth Circuit has not always adhered to the Supreme Court's clear statement rule. But, notably, even in Duggan, the Ninth Circuit did not reference the injunctive provision in § 6330(e) (and the Government does not rely on that subsection here.) Instead, the Ninth Circuit referenced the innocent spouse provisions at § 6015, but, as Boechler, P.C. previously explained, § 6015(e)(1)(A) uses expressly conditional language: “if such petition is filed.” Section 6330(d)(1) does not.

Respectfully submitted,

Amy Feinberg
of LATHAM & WATKINS LLP
Attorney for Appellant Boechler, P.C.
Washington, DC