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High Court Asked to Review Jurisdictional Question in Tax Case

APR. 16, 2021

Boechler PC v. Commissioner

DATED APR. 16, 2021
DOCUMENT ATTRIBUTES

Boechler PC v. Commissioner

[Editor's Note:

The attachments can be viewed in the PDF version of the document.

]

BOECHLER, P.C.,
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 EIGHTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

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

The following proceedings are directly related to this petition:

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.


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

REASONS FOR GRANTING THE WRIT

I. The Eighth Circuit's Decision Deepens An Existing Circuit Split

A. There Is A Conflict Between The Eighth And Ninth Circuits And The D.C. Circuit

B. This Is A Square Split

C. Further Percolation Will Only Exacerbate The Confusion

II. The Eighth Circuit's Decision Conflicts With This Court's Precedents And Is Wrong

A. This Court's Precedents Establish A High Bar Before A Time Limit Will Be Treated As Jurisdictional

B. Section 6330(d)(1) Is Not The Rare Jurisdictional Time Limit

III. The Question Presented Is Important And This Case Is An Ideal Vehicle

CONCLUSION

APPENDIX

Opinion of the United States Court of Appeals for the Eighth Circuit, Boechler, P.C. v. Commissioner, 967 F.3d 760 (8th Cir. 2020)

Order of the United States Tax Court Granting Motion to Dismiss, Boechler, P.C. v. Commissioner, No. 18578-17L (T.C. Feb. 15, 2019)

Order of the United States Court of Appeals for the Eighth Circuit Denying Rehearing, Boechler, P.C. v. Commissioner, No. 19-2003 (8th Cir. Nov. 17, 2020)

26 U.S.C. § 6015

26 U.S.C. § 6330

26 U.S.C. § 7623

TABLE OF AUTHORITIES

CASES

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

Boyd v. Commissioner, 451 F.3d 8 (1st Cir. 2006)

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

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

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

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

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

Friedel v. Commissioner, No. 11239-19W, 2020 WL 5569697 (T.C. Sept. 17, 2020)

Golsen v. Commissioner, 54 T.C. 742 (1970)

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

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

Gray v. Commissioner, 723 F.3d 790 (7th Cir. 2013)

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

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

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

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

Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990)

Kaplan v. Commissioner, 552 F. App'x 77 (2d Cir. 2014)

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

Matuszak v. Commissioner, 862 F.3d 192 (2d Cir. 2017)

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

Nauflett v. Commissioner, 892 F.3d 649 (4th Cir. 2018)

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

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

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

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

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

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

Springer v. Commissioner, 416 F. App'x 681 (10th Cir. 2011)

Stern v. Marshall, 564 U.S. 462 (2011)

Tuka v. Commissioner, 348 F. App'x 819 (3d Cir. 2009)

Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers & Trainmen General Committee of Adjustment, Central Region, 558 U.S. 67 (2009)

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

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

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

STATUTES

26 U.S.C. § 6015

26 U.S.C. § 6015(e)(1)

26 U.S.C. § 6015(e)(1)(A)

26 U.S.C. § 6213(a)

26 U.S.C. § 6320(a)

26 U.S.C. § 6320(b)

26 U.S.C. § 6320(c)4

26 U.S.C. § 6321

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)

26 U.S.C. § 6330(c)(3)

26 U.S.C. § 6330(d)(1)

26 U.S.C. § 6330(e)

26 U.S.C. § 6331

26 U.S.C. § 7345

26 U.S.C. § 7482(b)(1)

26 U.S.C. § 7502

26 U.S.C. § 7502(e)

26 U.S.C. § 7503

26 U.S.C. § 7623(b)

26 U.S.C. § 7623(b)(1)

26 U.S.C. § 7623(b)(2)

26 U.S.C. § 7623(b)(3)

26 U.S.C. § 7623(b)(4)

28 U.S.C. § 1254(1)

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

OTHER AUTHORITIES

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

Bryan T. Camp, Tax Administration as Inquisitorial Process and the Partial Paradigm Shift in the IRS Restructuring and Reform Act of 1998, 56 Fla.L.Rev. 1 (2004)

Kristen A. Parillo, Whistleblower Deadline Isn't Jurisdictional, D.C. Circuit Holds, Tax Notes Federal (2019, online)

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 2020 (Dec. 31, 2020), https://www.taxpayeradvocate.irs.gov/wp-content/uploads/2021/01/ARC20_FullReport.pdf

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

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


PETITION FOR A WRIT OF CERTIORARI

Petitioner Boechler, P.C. respectfully petitions this Court for a writ of certiorari to review the judgment of the United States Court of Appeals for the Eighth Circuit in this case.

OPINIONS AND ORDERS BELOW

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

JURISDICTION

The court of appeals entered judgment on July 24, 2020. App. 1a. On November 17, 2020, the court of appeals denied petitioner's timely motion for rehearing and rehearing en banc. 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, inter alia, the order denying a timely petition for rehearing. This Court has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are set out in the petition appendix. App. 18a-42a.

INTRODUCTION

This Court has spent more than a decade trying to bring discipline to what legal rules are properly characterized as “jurisdictional.” The Court has repeatedly held that statutory time limits are

quintessential claim-processing rules — not limitations on a court's subject-matter jurisdiction — unless Congress has clearly indicated to the contrary. And this Court has articulated a “readily administrable bright line” rule to identify those rare circumstances where a time limit will be treated as jurisdictional: there must be a “clear[ ] state[ment]” in the statute. Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006). In recent years, the Court has granted certiorari nearly every Term to reaffirm those principles when lower courts have gone astray and, with only few exceptions, has declared a variety of legal rules nonjurisdictional.1

The Eighth Circuit went astray here. In a split decision, the court of appeals held that the 30-day deadline to file a petition for review in the Tax Court of a notice of determination from the Commissioner of Internal Revenue is the rare “jurisdictional” time limit that deprives the Tax Court of authority to equitably toll the filing deadline. That decision deepens an existing conflict between the Ninth and D.C. Circuits — a conflict the Commissioner himself has acknowledged. It cannot be reconciled with this Court's cases. And it incorrectly resolved an important and recurring issue that may disproportionately impact pro se and low-income taxpayers. This Court's review is warranted.

STATEMENT OF THE CASE

1. This case concerns the timeline that governs Tax Court review of determinations made by the Commissioner of Internal Revenue in connection with “collection due process hearings.” One way the Internal Revenue Service (IRS) collects outstanding tax obligations is by filing a lien on the taxpayer's property or by seizing the property by levy. See 26 U.S.C. §§ 6321, 6331. In 1998, as a result of perceived IRS abuses during the collection process and to increase fairness to taxpayers, Congress established “collection due process hearings.” See IRS Restructuring and Reform Act of 1998, Pub. L. No. 105-206, § 3401, 112 Stat. 685, 746 (1998); S. Rep. No. 105-174, at 67 (1998) (purpose was to “afford taxpayers due process in collections” and “increase fairness to taxpayers”); Bryan T. Camp, Tax Administration as Inquisitorial Process and the Partial Paradigm Shift in the IRS Restructuring and Reform Act of 1998, 56 Fla. L. Rev. 1, 85-87 (2004) (recounting testimony before Congress that the IRS was abusing taxpayers during the collection process). The purpose of these collection due process hearings was to provide a procedural safeguard to taxpayers “before the IRS deprives them of their property.” S. Rep. No. 105-174, at 67; see also id. (“[T]he IRS should afford taxpayers adequate notice of collection activity and a meaningful hearing. . . .”).

The collection due process regime operates as follows. If the IRS determines that a taxpayer owes a tax debt and the taxpayer fails to pay it on time, the United States automatically receives a lien on the taxpayer's property and may collect the debt by levy. 26 U.S.C. §§ 6321, 6331. But before it can carry out the levy (or file a notice of its lien), the IRS must first give notice to the taxpayer and advise the taxpayer of her right to a hearing. Id. §§ 6320(a), 6330(a). The taxpayer may then request a hearing before the IRS Office of Appeals. Id. §§ 6320(b), 6330(b).

Section 6330(c) explains which “[m]atters” are to be “considered at [the] hearing.” Id. § 6330(c); see also id. § 6320(c) (cross-referencing Section 6330(c)). The IRS must prove that it fulfilled all the necessary procedural requirements to levy on the taxpayer's property. Id. § 6330(c)(1). The taxpayer, in turn, can raise “any relevant issue relating to the unpaid tax or the proposed levy.” Id. § 6330(c)(2)(A). Such matters may include the underlying tax liability (in certain circumstances); “offers of collection alternatives” (such as installment plans or offers in compromise); and any other “challenges to the appropriateness of [the IRS's] collection actions.” Id. § 6330(c)(2).

After the hearing, the IRS Office of Appeals issues a “determination.” Id. § 6330(c)(3). And that is when the Tax Court filing deadline at issue comes into play:

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 also id. § 6320(c) (cross-referencing Section 6330(d)). Until the taxpayer has exhausted all of her appeals, the IRS may not carry out the levy (subject to a good-cause exception). Id. §6330(e).

2. Petitioner is a small law firm in Fargo, North Dakota. Court of Appeals Joint Appendix (CAJA) 2, 5. On June 5, 2015, the IRS sent petitioner a letter noting a discrepancy in its 2012 tax filings. Id. at 6. Specifically, the IRS claimed that petitioner had failed to file copies of its employees' W-2s with the Social Security Administration, along with required IRS Form W-3. App. 2a; CAJA 6. Petitioner did not respond within 45 days, and the IRS imposed a 10% intentional disregard penalty in the amount of $19,250. App. 2a; CAJA 6.

On July 28, 2016, the IRS mailed petitioner a notice of intent to levy on its property to collect the penalty, plus interest. App. 2a; CAJA 10. On November 1, 2016, petitioner timely requested a collection due process hearing before the IRS Office of Appeals under Section 6330(b)(1). App. 2a; CAJA 5. Petitioner explained that it had in fact previously provided the missing forms. CAJA 5. Petitioner also argued that the penalty was excessive and would cause significant hardship. Id.

A collection due process hearing was held by telephone on May 19, 2017. Id. at 7. On July 28, 2017, the IRS Office of Appeals mailed petitioner a notice of determination sustaining the proposed levy. App. 2a. The notice of determination was not delivered until July 31, 2017. Id. Under Section 6330(d)(1), petitioner had 30 days from 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. 26 U.S.C. § 7503. Petitioner mailed its petition one day late, on August 29, 2017. App. 2a; see also 26 U.S.C. § 7502(e) (establishing “date of mailing” rule).

3. In the Tax Court, the Commissioner moved to dismiss for lack of jurisdiction based on petitioner's failure to meet the 30-day filing deadline. In response, petitioner argued that Section 6330(d)(1) is not jurisdictional, and requested an evidentiary hearing to establish its entitlement to equitable tolling. CAJA 32-43, 48-49. The Tax Court agreed with the Commissioner and dismissed the case. App. 13a, 15a. The court explained that it had “repeatedly” held that the filing deadline in Section 6330(d)(1) is jurisdictional. Id. at 15a (citing Gray v. Commissioner, 138 T.C. 295, 299 (2012)). And the court rejected petitioner's request for equitable tolling on that basis alone. Id. (citing Guralnik v. Commissioner, 146 T.C. 230, 237-38 (2016)).

4. In a split decision, the Eighth Circuit affirmed. App. 1a-12a.

a. The majority acknowledged that this Court “has 'repeatedly held that filing deadlines ordinarily are not jurisdictional'” and instead should be considered 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 majority 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 majority believed that Section 6330(d)(1) met that standard. Relying on the Ninth Circuit's decision in Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018), the majority concluded that “[t]he parenthetical '(and the Tax Court shall have jurisdiction with respect to such matter)' is clearly jurisdictional and renders the remainder of the sentence jurisdictional.” App. 6a. The phrase “such matter” in that parenthetical, the majority reasoned, must necessarily refer to a petition that is filed within 30 days of the IRS's determination. Id. at 6a-7a.

The majority 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 as the one found in § 6330.” App. 5a. But the majority found the Ninth Circuit's analysis more “persuasive.” Id. at 6a. “While there might be alternative ways that Congress could have stated the jurisdictional nature of the statute more plainly,” the majority believed that Congress had “spoken clearly enough to establish that § 6330(d)(1)'s 30-day filing deadline is jurisdictional.” Id. at 7a-8a.

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

b. Judge Kelly concurred in part and concurred in the judgment. Id. at 10a. Judge Kelly believed the panel was bound by a prior circuit decision to treat the deadline in Section 6330(d)(1) as jurisdictional. Id. at 10a-11a. Although she felt bound to affirm the Tax Court's jurisdictional holding for that reason, Judge Kelly was “not convinced the statute contains a sufficiently clear statement to justify this result.” Id. at 12a. Judge Kelly explained that the court's decision represented “an unusual departure from the ordinary rule that filing deadlines are 'quintessential claim-processing rules.'” Id. (quoting Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011)). She emphasized that the court's ruling could have “'drastic' consequences for litigants.” Id. (quoting Henderson, 562 U.S. at 435). And she shared her “concern[ ]” that “the burden may fall disproportionately on low-income taxpayers.” Id.

5. Petitioner filed a petition for rehearing en banc. Rehearing was denied, but with three judges (Judges Loken, Colloton, and Kelly) voting to grant. App. 16a.

REASONS FOR GRANTING THE WRIT

This case presents the question whether a 30-day deadline to file a petition for review with the Tax Court is the rare “jurisdictional” time limit that deprives the Tax Court of authority to equitably toll the filing deadline. More than a decade of this Court's precedents plainly answer that question in the negative. Time and again, the Court has reaffirmed that — absent a clear statement to the contrary — statutory time limits are nonjurisdictional claim-processing rules presumptively subject to equitable tolling. Congress did nothing special in Section 6330(d)(1) to depart from that rule.

The Eighth Circuit's split decision nevertheless cloaks the 30-day filing deadline with jurisdictional significance. That decision deepens an existing divide between the Ninth and D.C. Circuits — giving rise to what even the Commissioner has characterized as a square conflict. On the merits, the D.C. Circuit got it right: nothing about the phrasing of Section 6330(d)(1)'s time limit clearly establishes the deadline's jurisdictional status. And because the issue recurs with some frequency, impacts low-income and pro se taxpayers, and results in harsh consequences, deciding whether the 30-day deadline is jurisdictional is of paramount importance. This Court's review is warranted.

I. The Eighth Circuit's Decision Deepens An Existing Circuit Split

The Eighth Circuit's decision deepens an existing conflict among the courts of appeals. The Eighth and Ninth Circuits have now held that Section 6330(d)(1) creates a jurisdictional filing deadline. The D.C. Circuit reached the opposite conclusion with respect to another Tax Court filing deadline with functionally identical language. And other courts of appeals have issued (or will issue) decisions that only further add to the confusion. The conflict is entrenched, ripe, and ready for the Court's review.

A. There Is A Conflict Between The Eighth And Ninth Circuits And The D.C. Circuit

In Duggan v. Commissioner, the Ninth Circuit held that Section 6330(d)(1)'s deadline is jurisdictional. 879 F.3d 1029, 1035 (9th Cir. 2018). The Ninth Circuit recognized that Section 6330(d)(1) does not provide “the clearest statement possible.” Id. at 1034. But the court deemed the text sufficiently clear because “the filing deadline is given in the same breath as the grant of jurisdiction.” Id.; see also id. (reading Section 6330(d)(1) to “confer[ ] jurisdiction on the Tax Court if (and only if) a petition for review is filed in that court within thirty days of the IRS's determination”).

The following year, the D.C. Circuit interpreted materially identical statutory language and disagreed. In Myers v. Commissioner, a majority of the D.C. Circuit held that 26 U.S.C. § 7623(b)(4) does not create a jurisdictional filing deadline. 928 F.3d 1025, 1034-36 (D.C. Cir. 2019). But see id. at 1038 (Henderson, J., concurring in part and dissenting in part). Section 7623(b) requires the IRS to pay awards to whistleblowers who bring tax violations to its attention. 26 U.S.C. § 7623(b). The IRS may authorize an award of 10-30% of the proceeds of any collection undertaken as a result of a whistleblower's involvement, id. § 7623(b)(1)-(2), but has discretion to reduce or deny awards for whistleblowers who “planned and initiated” the actions leading to underpayment, id. § 7623(b)(3). A whistleblower aggrieved by the award amount (or its denial) may then seek Tax Court review of the IRS's determination. And the provision governing that review, Section 7623(b)(4), states:

Any determination regarding an award under paragraph (1), (2), or (3) may, within 30 days of such determination, be appealed to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter).

Id. § 7623(b)(4).

The D.C. Circuit recognized that the Ninth Circuit had previously found the materially identical language in Section 6330(d)(1) to be jurisdictional. Myers, 928 F.3d at 1036. But the D.C. Circuit disagreed with the Ninth Circuit's conclusion that the deadline is jurisdictional simply because it appears in the same subsection as the jurisdiction-conferring language. Id. Carefully parsing the parenthetical's language in context, the D.C. Circuit reasoned that “the type of appeal to which 'such matter' refers is most naturally identified by the subject matter of the appeal — namely, 'any determination regarding an award under paragraph (1), (2), or (3)' — and not by the requirement that it be filed 'within 30 days of such determination.'” Id. at 1035. Recognizing that “the [Supreme] Court has demanded an unusually high degree of clarity to trigger the 'drastic' 'consequences that attach to the jurisdictional label,'” id. (quoting Henderson, 562 U.S. at 435), the D.C. Circuit held that the deadline in “'[t]his case is scarcely the exceptional one, '. . . in which a filing period ranks as a jurisdictional bar,” id. (alteration in original) (quoting Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 155 (2013)). Having found that Section 7623(b)(4) is not jurisdictional, the D.C. Circuit concluded — based on the presumption established in Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95-96 (1990) — that the statutory deadline was subject to equitable tolling. Myers, 928 F.3d at 1036-37.

In the split decision below, the Eighth Circuit disagreed with the D.C. Circuit and aligned itself with the Ninth Circuit. App. 5a-6a.

B. This Is A Square Split

The circuit conflict is well recognized. See, e.g., National Taxpayer Advocate, Annual Report to Congress 2020, at 171 (Dec. 31, 2020), https://www.taxpayeradvocate.irs.gov/wp-content/ uploads/2021/01/ARC20_FullReport.pdf (noting that the “split” “could prompt the Supreme Court to review the issue”); Bryan T. Camp, New Thinking about Jurisdictional Time Periods in the Tax Code, 73 Tax Law. 1, 36-40 & nn.146 & 149 (2019); Kristen A. Parillo, Whistleblower Deadline Isn't Jurisdictional, D.C. Circuit Holds, Tax Notes Federal (2019, online). And it cannot be explained by the different Internal Revenue Code provisions at issue. The Eighth Circuit acknowledged that the D.C. Circuit had come to a different conclusion about the “identically worded parenthetical,” but found the Ninth Circuit's analysis more “persuasive.” App. 5a-6a. The D.C. Circuit likewise observed that its decision in Myers was “in some tension” with Duggan. Myers, 928 F.3d at 1036.

The Commissioner himself sought rehearing en banc in Myers on the basis of the (then, more shallow) split between the Ninth and D.C. Circuits. As the Commissioner explained in his unsuccessful rehearing petition, “[i]t is simply not possible to reconcile the decision in [Myers] with Duggan.” Commissioner En Banc Pet'n 11, Myers v. Commissioner, 928 F.3d 1025 (D.C. Cir. 2019) (No. 18-1003); see also id. at 1 (stating that the “holding” in Myers “conflicts with the Ninth Circuit's decision in Duggan. . . which held that a virtually identical time limit in I.R.C. § 6330(d)(1). . . is jurisdictional”).

Petitioner fully agrees. The D.C. Circuit's statutory analysis cannot be reconciled with the Eighth and Ninth Circuit's reading of near identical language. The result being that a District of Columbia taxpayer appealing an IRS collection due process determination can receive the benefit of equitable tolling while taxpayers in the Eighth and Ninth Circuits cannot.2 That is a square split under any definition.

C. Further Percolation Will Only Exacerbate The Confusion

Further percolation on the question presented will do more harm than good. The three court of appeals' decisions have thoroughly aired both sides of this statutory interpretation issue. Yet this petition is the Court's first opportunity to address the conflict. See Commissioner v. Myers, No. 19A674 (U.S.) (Solicitor General received two extensions of time in which to file a petition for a writ of certiorari, but ultimately declined to seek review). And while another appeal raising the same question presented is currently pending before the Second Circuit, oral argument has not been scheduled. See Castillo v. Commissioner, No. 20-1635 (2d Cir.).

In the meantime, significant confusion persists. Five other courts of appeals have referred to Section 6330(d)(1)'s filing deadline as jurisdictional in passing or implied that the deadline might be jurisdictional.3 None of those cases actually presented the issue for decision. But that has not stopped the Commissioner from telling courts that these circuits have “consider[ed]” the question presented and “agreed” that the filing deadline is jurisdictional. Boechler Appellee's Opp. to En Banc Pet'n 13; see also, e.g., Castillo Appellee Br. 19-20, ECF No. 57.

This Court should intervene now to bring much-needed uniformity to this area of the law.

II. The Eighth Circuit's Decision Conflicts With This Court's Precedents And Is Wrong

Review is also warranted because the Eighth Circuit aligned itself with the wrong side of the split. This Court has made clear that statutory time limits are quintessential claim-processing rules presumptively subject to equitable tolling unless Congress has clearly indicated to the contrary. And Section 6330(d)(1) is not the “rare statute of limitations that can deprive a court of jurisdiction.” United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015).

A. This Court's Precedents Establish A High Bar Before A Time Limit Will Be Treated As Jurisdictional

It is well settled that statutory time limits are presumptively subject to equitable tolling. See Irwin, 498 U.S. at 95-96. That is true whether the defendant is a private party or the Government. See id.; Kwai Fun Wong, 575 U.S. at 407-08. But this presumption will not apply if the time limit is jurisdictional. Kwai Fun Wong, 575 U.S. at 408. As this Court has explained, “[b]randing a rule as going to a court's subject-matter jurisdiction alters the normal operation of our adversarial system.” Henderson, 562 U.S. at 434. A jurisdictional time limit is not subject to equitable tolling, must be considered sua sponte, and can be raised at any time — including on appeal — to get a case dismissed. See Auburn Reg'l, 568 U.S. at 153.

Because of the “untoward consequences” that attach to the jurisdictional label, this Court has “'tried in recent cases to bring some discipline to the use' of the term 'jurisdiction.'” Id. (quoting Henderson, 562 U.S. at 435). “[C]laim-processing rules,” for example, “should not be described as jurisdictional.” Henderson, 562 U.S. at 435. “These are rules that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.” Id. And, “[t]ime and again,” this Court has “described filing deadlines as 'quintessential claim-processing rules,' which 'seek to promote the orderly progress of litigation,' but 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).

To be sure, Congress can decide to brand a time limit jurisdictional and impose all of the “[h]arsh consequences” that follow. Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1849 (2019). But Congress must do so in clear terms. Under this Court's “readily administrable bright line” rule, Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006), a “time bar[ ]” will be treated as jurisdictional “only if Congress has 'clearly state[d]' as much,” Kwai Fun Wong, 575 U.S. at 409 (alteration in original) (quoting Auburn Reg'l, 568 U.S. at 153); see also Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 20 n.9 (2017). “'[A]bsent such a clear statement,. . . “courts should treat the restriction as nonjurisdictional.”'” Kwai Fun Wong, 575 U.S. at 409-10 (alterations in original) (citations omitted). Although Congress does not have to use “'magic words,'” “traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences.” Id. at 410 (citation omitted); see also Fort Bend Cnty., 139 S. Ct. at 1850 (Congress must “'clearly state[ ] that a [prescription] count[s] as jurisdictional,'” so that courts and litigants “'will not be left to wrestle with the issue'” (first brackets added) (citation omitted)).

Applying that “clear statement rule,” this Court has “made plain that most time bars are nonjurisdictional.” Kwai Fun Wong, 575 U.S. at 410. Indeed, this Court has not found a single statutory filing deadline sufficiently clear to qualify as jurisdictional under that rule.

B. Section 6330(d)(1) Is Not The Rare Jurisdictional Time Limit

Section 6330(d)(1) states: “The person [who sought a due process hearing] 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). Nothing in the text, context, history, or purpose of Section 6330(d)(1) “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.

1. As an initial matter, the mere fact that the deadline and the jurisdictional grant are both located in Section 6330(d)(1) does not mean that the deadline is “jurisdictional.” This Court has repeatedly rejected such “proximity-based argument[s].” Auburn Reg'l, 568 U.S. at 155; see also Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975); Gonzalez v. Thaler, 565 U.S. 134, 143-47 (2012). As the Court has admonished, “[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.” Auburn Reg'l, 568 U.S. at 155.

So while there is no dispute that something in Section 6330(d)(1) has jurisdictional significance, it must be clear and unequivocal that this something is the 30-day time limit. It is not.

Section 6330(d)(1) does not expressly condition the Tax Court's “jurisdiction” on compliance with the 30-day filing deadline. As the D.C. Circuit held, nothing in the sentence's structure “'conditions the jurisdictional grant on the limitations period, or otherwise links' those separate clauses.” Myers, 928 F.3d at 1035 (quoting Kwai Fun Wong, 575 U.S. at 412).

The Ninth Circuit read Section 6330(d)(1)'s “plain language” to “confer[ ] jurisdiction on the Tax Court if (and only if) a petition for review is filed in that court within thirty days of the IRS's determination.” Duggan, 879 F.3d at 1034. But the provision's “plain language” does not say that — the word “if” does not appear at all. The Ninth Circuit relied heavily on an analogy to a different statute, 26 U.S.C. § 6015, governing a different deadline for appealing to the Tax Court. See Duggan, 879 F.3d at 1033. In contrast to the provision at issue here, Section 6015(e)(1)(A) — often referred to as the “innocent spouse” provision — states that an 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” by certain time deadlines. 26 U.S.C. § 6015(e)(1)(A) (emphasis added). That subparagraph expressly conditions the Tax Court's jurisdiction on whether (“if”) the petition is filed within a certain time frame. See Nauflett v. Commissioner, 892 F.3d 649, 652-53 (4th Cir. 2018) (holding Section 6015(e)(1)(A) time limit to be jurisdictional under clear-statement rule); Rubel v. Commissioner, 856 F.3d 301, 304-05 (3d Cir. 2017) (same); Matuszak v. Commissioner, 862 F.3d 192, 196 (2d Cir. 2017) (same). Section 6330(d)(1) does not.4

The Eighth Circuit, for its part, pointed to the parenthetical's use of the phrase “such matter,” reasoning that the antecedent must be “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.” App. 6a-7a (second emphasis added). But there is no reason to assume the second qualification. And read in context, the phrase “such matter” is best understood to refer to the subject matter of the petition. A near-identical phrase, “[s]uch [m]atters,” appears in the title to the prior subsection (c), which details what “[m]atters” are to be considered at the due process hearing itself. 26 U.S.C. §6330(c); see supra at 3-4. Subsection (d), in turn, refers both to the “determination” and the “petition” for review. Id. § 6330(d)(1). The Tax Court thus has jurisdiction to consider “such matter” — i.e., everything “considered at [the] hearing” (id. §6330(c)), and addressed in the determination or the petition for review (id. § 6330(d)(1)). Or as the D.C. Circuit explained it in analyzing the language of Section 7623(b)(4), “the type of appeal to which 'such matter' refers is most naturally identified by the subject matter of the appeal — namely, 'any determination regarding an award under paragraph (1), (2), or (3)' — and not by the requirement that it be filed 'within 30 days of such determination.'” Myers, 928 F.3d at 1035.

2. The nonjurisdictional reading of the filing deadline is reinforced by the structure of Section 6330(d)(1). The jurisdictional grant is separated from the rest of the provision by parentheses and is introduced by the word “and,” signifying a new independent clause. See William Strunk Jr. & E.B. White, The Elements of Style 5-7, 90 (4th ed. 2000) (independent clauses are “grammatically complete” sentences and may be “joined by a coordinating conjunction”). And the filing deadline is separated from the rest of the sentence by commas. That is, the jurisdictional grant and the time limit appear in distinct clauses, and the provision does not expressly condition jurisdiction on the time limit or otherwise link the two.5

3. There are good reasons why Congress would not have wanted to attach such “drastic” jurisdictional consequences to the 30-day filing deadline in Section 6330(d)(1). App. 12a (Kelly, J., concurring in part and concurring in the judgment). Section 6330 is an important procedural safeguard for taxpayers: it is the taxpayer's only opportunity to challenge the IRS's actions before collection, which could entail the loss of a home, a car, or a savings account. See supra at 4. Thirty days is also a relatively short period of time to file a petition for review compared to other Tax Court filing deadlines. Cf. 26 U.S.C. § 6213(a) (90 days for U.S. addressees and 150 days for foreign addressees to petition the Tax Court for redetermination of a deficiency); id. §6015(e)(1) (90 days for taxpayers denied “innocent spouse” treatment to seek Tax Court review); id. §7345 (no deadline at all to petition for review of an IRS certification of a “seriously delinquent tax debt,” in either the Tax Court or district court).

4. The Eighth Circuit accordingly erred in branding the 30-day deadline as jurisdictional. As this Court has repeatedly held, the “general rule” is that nonjurisdictional time limits are subject to equitable tolling. Kwai Fun Wong, 575 U.S. at 412; see also Irwin, 498 U.S. at 95-96 (time requirements “are customarily subject to 'equitable tolling'”). The Eighth Circuit did not separately consider whether that presumption can be overcome here. And the only court of appeals to have considered that question has concluded that it cannot. See Myers, 928 F.3d at 1036-37 (holding that Section 7623(b)(4) is subject to equitable tolling). Although this Court would not need to reach this secondary issue (see infra at 28), the D.C. Circuit was correct.

The presumption in favor of equitable tolling is especially strong here because the provision at issue was enacted in 1998 — eight years after this Court's decision in Irwin. See Holland v. Florida, 560 U.S. 631, 646 (2010) (explaining that the presumption in favor of equitable tolling is “reinforced” for post-Irwin statutes). Nothing in the Internal Revenue Code suggests that Section 6330(d)(1)'s time limit is completely inflexible or that equitable tolling is otherwise unavailable. See 26 U.S.C. § 6330(d)(1) (taxpayer “may” petition the Tax Court “within 30 days” (emphasis added)); cf. Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 715 (2019) (finding “clear intent to compel rigorous enforcement” where federal rules “single[d] out” time limit “for inflexible treatment”). Indeed, the whole purpose of the collection due process regime was to provide more process to taxpayers before the IRS can seize their property by levy. See supra at 3-4. Taxpayers navigating this petition for review procedure are often not “sophisticated,” “repeat players”; rather, the majority are “laymen” representing themselves pro se. See Myers, 928 F.3d at 1036-37. And any suggestion that equitable tolling is incompatible with the collection due process regime is belied by the recommendation of the National Taxpayer Advocate — an official within the IRS — that Congress adopt an express equitable tolling provision applicable to the deadline at issue. See infra at 24-25; cf. United States v. Brockamp, 519 U.S. 347, 352-53 (1997).

III. The Question Presented Is Important And This Case Is An Ideal Vehicle

The question presented is an important and recurring issue, that may disproportionately impact low-income and pro se taxpayers, and that leads to unfair and inequitable outcomes. And this case presents an ideal vehicle for the Court's review.

1. This is an important and recurring issue. The National Taxpayer Advocate has found that appeals from collection due process hearings were the single most litigated issue in the Tax Court in 2020. See Annual Report to Congress 2020, supra at 162, 183. In fact, appeals from such hearings “have been one of the federal tax issues most frequently litigated in the federal courts since 2001.” Id. at 184. Of the 27,844 collection due process hearings requested in 2020, 1,185 resulted in petitions to the Tax Court. Id. at 185.

As for the specific jurisdictional question presented, five courts of appeals have been presented with that issue in just the last three years. See App. 3a-10a; Duggan, 879 F.3d at 1031-35; Myers, 928 F.3d at 1033-36; Cunningham v. Commissioner, 716 F. App'x 182, 183-84 (4th Cir. 2018) (affirming on other grounds without deciding whether Section 6330(d)(1) is jurisdictional); Castillo, No. 20-1635 (2d Cir.) (oral argument not yet scheduled). The Tax Court itself has “repeatedly held” that the 30-day time limit in Section 6330(d)(1) is jurisdictional, further reinforcing how often this specific issue arises. Guralnik v. Commissioner, 146 T.C. 230, 235 & n.6 (2016) (citing cases).6

And because of the two provisions' close similarity, resolving the statutory interpretation issue in this case would also decide the status of the Section 7623(b)(4) filing deadline for review of IRS whistleblower decisions. As the Commissioner emphasized in asking the D.C. Circuit to grant en banc review in Myers, because Tax Court decisions reviewing whistleblower determinations can only be appealed to the D.C. Circuit, that court's holding created binding precedent for all IRS whistleblower cases nationwide. Myers Commissioner En Banc Pet'n 2, 19; see also 26 U.S.C. § 7482(b)(1). The Commissioner also characterized the issue as one of “exceptional importance.” Myers Commissioner En Banc Pet'n 1. Again, petitioner agrees.

So does the IRS National Taxpayer Advocate. Citing the uncertainty created by conflicting lower court decisions, the National Taxpayer Advocate has recommended that Congress amend the Internal Revenue Code to provide much needed clarity on the jurisdictional status of certain Tax Court deadlines, including Section 6330(d)(1). See National Taxpayer Advocate, 2021 Purple Book 100-02 (Dec. 31, 2020), https://www.taxpayeradvocate.irs.gov/wp-content/ uploads/2021/01/ARC20_PurpleBook.pdf; (citing the decision below, Duggan, and Myers); National Taxpayer Advocate, 2020 Purple Book 85-87 (Dec. 31, 2019), https://www.taxpayeradvocate.irs.gov/ wp-content/uploads/2020/08/ARC19_PurpleBook.pdf (citing Duggan and Myers); National Taxpayer Advocate, 2019 Purple Book 88-90 (Dec. 31, 2018), https://www.taxpayeradvocate.irs.gov/wp-content/ uploads/2020/07/ARC18_PurpleBook.pdf. As noted above, the Advocate's recommendation sides with the D.C. Circuit and asks Congress to expressly provide that the deadlines are not jurisdictional and that equitable tolling is available. 2021 Purple Book, supra, at 101-02; see also 2020 Annual Report to Congress, supra, at 170 (noting that while Myers “addresses the problem for whistleblowers, it does not solve the problem for taxpayers in other contexts”).7

2. As Judge Kelly highlighted in her concurrence, the issue appears to arise most often for low-income and pro se taxpayers. App. 12a. A majority of the taxpayers who file petitions seeking review of collection due process hearings are proceeding pro se. Annual Report to Congress 2020, supra, at 188. In 2020, nearly two-thirds (61%) of taxpayers who litigated their collection due process petitions were unrepresented, and the vast majority were individuals rather than businesses (over 90%). Id.; see also id. at 166 (“The dollars at issue, along with the taxpayer's income level, are two key determinants of whether a taxpayer obtains representation to navigate the litigation process.”). And the National Taxpayer Advocate has emphasized that “[u]nrepresented taxpayers, in particular, may be less likely to anticipate the severe consequences of filing a Tax Court petition even one day late.” 2021 Purple Book, supra, at 101.

3. The repercussions are indeed severe. For taxpayers facing levy who have not prevailed in their due process hearing, the Tax Court is the only judicial forum in which they may challenge the IRS's actions before having their property taken to cover the taxes or penalties they allegedly owe. Id. (“The sanction for failing to commence suit in the Tax Court” within the prescribed deadline “is severe: taxpayers lose their day in that court, which may be the only prepayment forum.”).

There is also no doubt that “[t]reating the [Internal Revenue Code] time limits for bringing suit as jurisdictional, and not subject to equitable doctrines, leads to unfair outcomes.” Id. Take the facts of the Castillo case currently before the Second Circuit. During Josefa Castillo's collection due process hearing, she argued that the IRS mistakenly placed a lien on her property for over $80,000 of unpaid tax debt she did not owe, due to an administrative error. Castillo Appellant Br. 6-9, ECF No. 41. After the hearing, the IRS mailed a notice of determination to Ms. Castillo's former attorney, whose authorization to receive documents she had revoked months earlier. Id. And while the IRS also attempted to mail the notice to Ms. Castillo, it was never delivered, and USPS records showed that it remained “in transit.” Id. at 9. Ms. Castillo and her actual attorney did not discover that the determination had issued until months after the 30-day deadline had lapsed. Id. at 8-10. But even though Ms. Castillo indisputably never received the determination, the Tax Court dismissed her untimely petition for lack of jurisdiction. Id. at 9-11.

Ms. Castillo's case — though appalling — is far from unique. Certain aspects of Section 6330(d)(1)'s deadline (which is already short) and past IRS practice can set traps for unwary taxpayers. For example, the 30-day deadline starts from the date the IRS mails the notice of determination, regardless of when the taxpayer receives it. And the Internal Revenue Code's “timely mail[ed]” rule — which considers a petition to be filed on the date it is postmarked — does not apply to all forms of mailing. See 26 U.S.C. § 7502; Guralnik, 146 T.C. at 238-41; see also, e.g., Sarrell v. Commissioner, 117 T.C. 122, 123-26 (2001) (IRS mailed notice of determination to taxpayer in Israel; it arrived on Day 25; petition was mailed on Day 30 because of intervening Israeli holidays, but was not considered “timely mailed” due to the foreign postmark).

The phrasing of the notice of determination itself can also confuse taxpayers. See Annual Report to Congress 2020, supra, at 186 (raising concern about whether the IRS mailings “provide adequate notice to identify when the 30-day period to petition the court following receipt of a Notice of Determination begins”). Indeed, “[t]he IRS itself occasionally provides inaccurate information regarding the filing deadline to a taxpayer, and taxpayers have been harmed by relying on that erroneous information.” 2021 Purple Book, supra, at 101 (emphasis added); cf. Nauflett, 892 F.3d at 652-54 (equitable tolling did not apply to innocent-spouse case despite spouse's reliance on erroneous IRS advice regarding the filing deadline); Rubel, 856 F.3d at 306 (same).

4. Finally, this case is a clean vehicle for the Court's review. The court of appeals' answer to the jurisdictional question was dispositive of petitioner's attempt to seek review in the Tax Court. The Eighth Circuit affirmed the Tax Court's dismissal of the petition for review as untimely based entirely on its determination that Section 6330(d)(1) is jurisdictional. See App. 8a n.3. The issue is thus squarely presented for the Court's review.

The Eighth Circuit did not separately decide whether, if Section 6330(d)(1) is nonjurisdictional, equitable tolling would be available. Before the panel, the Commissioner argued that equitable tolling was not available regardless, but he did not press that argument in opposing rehearing. See Boechler Appellee's Opp. to En Banc Pet'n. And the only court of appeals to address that secondary issue has concluded that equitable tolling is available (with respect to materially identical language). See Myers, 928 F.3d at 1036-37.

This splitless issue is not independently worthy of the Court's review. But it is included within the question presented and could either be briefed on the merits or remanded for the Eighth Circuit to decide in the first instance. Compare Hamer, 138 S. Ct. at 22 (declining to decide whether claim-processing rule was subject to equitable considerations after deeming it nonjurisdictional), with Kwai Fun Wong, 575 U.S. at 412 (deciding that statute allowed for equitable tolling after deeming it nonjurisdictional). Either way, the ultimate question whether petitioner is entitled to equitable tolling would be left for the Tax Court on remand.

CONCLUSION

The petition for a writ of certiorari should be granted.

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

April 16, 2021

FOOTNOTES

1See Fort Bend Cnty. v. Davis, 139 S. Ct. 1843, 1846 (2019) (Title VII's charge-filing requirement nonjurisdictional); Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16-17, 22 (2017) (limit on extensions of time to file a notice of appeal in Federal Rule of Appellate Procedure 4(a)(5)(C) nonjurisdictional); United States v. Kwai Fun Wong, 575 U.S. 402, 409-10 (2015) (Federal Tort Claims Act time limits nonjurisdictional); Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 148-49 (2013) (Medicare time limit for appeal to Provider Reimbursement Review Board nonjurisdictional); Gonzalez v. Thaler, 565 U.S. 134, 137 (2012) (requirement that a certificate of appealability indicate the specific issue to be challenged nonjurisdictional); Stern v. Marshall, 564 U.S. 462, 479 (2011) (carve-out for “personal injury” claims in bankruptcy statute nonjurisdictional); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 438-41 (2011) (time limit to file appeal to Veterans Court nonjurisdictional); Holland v. Florida, 560 U.S. 631, 645 (2010) (Antiterrorism and Effective Death Penalty Act statute of limitations nonjurisdictional); Dolan v. United States, 560 U.S. 605, 610-11 (2010) (statutory deadline for ordering restitution nonjurisdictional); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010) (requirement that copyright be registered before filing suit nonjurisdictional); Union Pac. R.R. Co. v. Brotherhood of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 71-72 (2009) (proof of conferencing requirement before National Railroad Adjustment Board arbitration nonjurisdictional); Arbaugh v. Y&H Corp., 546 U.S. 500, 504-05, 516 (2006) (Title VII provision exempting employers with fewer than 15 employees nonjurisdictional); Eberhart v. United States, 546 U.S. 12, 15-16 (2005) (per curiam) (federal criminal rules setting forth time limits for new trial nonjurisdictional); Scarborough v. Principi, 541 U.S. 401, 411-12 (2004) (filing deadlines for fee applications under Equal Access to Justice Act nonjurisdictional); Kontrick v. Ryan, 540 U.S. 443, 452-54 (2004) (filing deadlines for objecting to debtor's discharge in bankruptcy nonjurisdictional).

2Petitioner is not aware of any post-Myers collection due process case in the Tax Court presenting the jurisdictional issue where appellate venue would lie in the D.C. Circuit (and no such case has been appealed to the D.C. Circuit). But when the Tax Court does confront such a case, it would be obliged to follow Myers, not its own precedent holding Section 6330(d)(1) jurisdictional. See Friedel v. Commissioner, No. 11239-19W, 2020 WL 5569697, at *2 (T.C. Sept. 17, 2020) (following D.C. Circuit precedent where that court “is the appellate venue for this case”); Golsen v. Commissioner, 54 T.C. 742, 756-57 (1970).

3See Kaplan v. Commissioner, 552 F. App'x 77, 78 (2d Cir. 2014) (affirming Tax Court's dismissal of petition for lack of jurisdiction and holding that actual notice of the determination is not required under Section 6330(d)(1) when the determination is sent by certified mail to taxpayer's last known address); Gray v. Commissioner, 723 F.3d 790, 792-94 (7th Cir. 2013) (affirming Tax Court's dismissal of petitions for lack of jurisdiction and holding that the 30-day deadline in Section 6330(d)(1) applied, rather than different statutory deadlines); Boyd v. Commissioner, 451 F.3d 8, 10-11 (1st Cir. 2006) (affirming Tax Court dismissal of petition for lack of jurisdiction and holding that a determination must issue before taxpayer may petition the Tax Court); Springer v. Commissioner, 416 F. App'x 681, 682-83 (10th Cir. 2011) (same); Tuka v. Commissioner, 348 F. App'x 819, 820-21 (3d Cir. 2009) (per curiam) (same).

4Whether Section 6015(e)(1)(A)'s filing deadline is jurisdictional is not at issue here. But it certainly does not follow that the filing deadline in Section 6330(d)(1) should be read in kind. The grammatical structures of the two provisions are entirely different, and a plain reading of one does not control the other.

5The Eighth Circuit majority cited Section 6330(e)(1) in passing (App. 7a), but the Commissioner did not rely on that subsection in making its statutory interpretation argument on appeal. For good reason. Although Section 6330(e)(1) limits the Tax Court's jurisdiction to grant certain injunctive relief to “timely” appeals, it defines the court's jurisdiction only “under this paragraph” (meaning, paragraph (e)(1)), and does not define what “timely filed” means — leaving open the possibility that a petition deemed timely by way of equitable tolling could qualify.

6The Tax Court's longstanding position that it lacks jurisdiction to review untimely Section 6330(d) petitions also surely deters many taxpayers from filing petitions for review that are untimely, even if there are compelling reasons for the delay.

7Given the split in the circuits, Congress's failure to act thus far cannot be understood as ratification of any particular judicial interpretation of Section 6330(d)(1). The D.C. Circuit has interpreted materially identical language to be nonjurisdictional, and a rational Congress would not intend the same language to carry two different meanings.

END FOOTNOTES

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