Three appellate decisions on whether deadlines to file Tax Court petitions challenging administrative denials are jurisdictional requirements create enough of a circuit split to justify Supreme Court review, according to a law firm’s certiorari petition.
“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,” the April 16 petition in Boechler PC v. Commissioner argued.
Boechler is appealing its loss in the Eighth Circuit in July 2020, where it claimed that the 30-day time limit for asking the Tax Court to review adverse IRS collection review rulings, found in section 6330(d)(1), isn’t a jurisdictional requirement but a mere claims processing rule. The Fargo, North Dakota, law firm acknowledged that the Ninth Circuit reached the same conclusion in Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018).
The claimed split is between the Eighth and Ninth circuits’ rulings on section 6330 and the D.C. Circuit’s ruling that a similar 30-day deadline for whistleblower claims in section 7623 isn’t a jurisdictional requirement. Boechler’s petition acknowledged that five more circuit courts have discussed the deadline in section 6330(d)(1) in dicta — that is, discussions not necessary for the ultimate conclusions in the cases — and all implied that it is a jurisdictional requirement.
Whither Equity
The IRS asserted that Boechler failed to send copies of its employees’ Forms W-2 to the Social Security Administration when it made its tax return filings. To collect a resulting penalty, the IRS filed a notice of intent to levy, on which Boechler made a timely request for a collection due process hearing.
Boechler mailed its Tax Court petition protesting the IRS’s decision to sustain the levy 32 days after the notice of that decision. (The law firm actually had 31 days to timely petition the Tax Court because the 30th day was a Sunday.) The cert petition doesn’t present any argument about why equitable tolling in its situation would be justified.
Instead, the petition states that Boechler could address that issue in arguments on the merits or that it would be a good issue preserved for either the Eighth Circuit or the Tax Court. The law firm presents the facts of another case before the Second Circuit — Castillo v. Commissioner — in which the IRS sent a notice of determination to the taxpayer’s former attorney and the taxpayer and the new attorney didn’t get it until after the deadline passed.
Courts haven’t always been willing to address the jurisdictionality question when they find taxpayers don’t have good cases for the otherwise foreclosed remedies, like equitable tolling, that they request. For example, the Fourth Circuit declined to reach the statutory issue and decided a taxpayer wouldn’t qualify for equitable remedies even if they were available, in Cunningham v. Commissioner, 716 Fed. Appx. 182 (4th Cir. 2018).
Big Little Words
Boechler’s textual argument involves some careful parsing of the language used in section 6330(d)(1) combined with contrast from other statutes granting the Tax Court jurisdiction.
After noting the Supreme Court’s disfavor for jurisdictional filing deadlines, the cert petition noted that section 6330(d)(1)’s 1998 enactment came after the beginning of that line of cases. Presumably Congress would have been aware of that precedent when drafting that statute, the argument goes.
Unlike section 6213(a), which sets the deadline for petitions on notices of deficiency also before the Supreme Court, section 6330 was created anew by the Internal Revenue Service Restructuring and Reform Act of 1998.
Section 6015 contains the jurisdictional grant for Tax Court petitions regarding relief from liability for a jointly filed tax return. Unlike section 6330(d)(1), the jurisdiction provision in section 6015(e)(1)(A) uses the word “if,” Boechler noted. The use of that conditional word should be what courts look to for the plain language that the Court’s case law calls for in statutes that make filing deadlines jurisdictional, the petition argued.
Further, by using the conjunctive “and” in section 6330(d)(1) between the jurisdictional grant and the filing deadline, Congress separated the clauses enough that courts shouldn’t read the grant as dependent on the timing, Boechler argued.
T. Keith Fogg, director of the Harvard Law School Federal Tax Clinic, told Tax Notes that the clinic will be filing an amicus brief in support of the cert petition, something he did in the section 6213(a) jurisdictionality case.
The petitioner in Boechler PC v. Commissioner, No. _ (U.S. 2021), is represented by Melissa Arbus Sherry, Caroline A. Flynn, and Amy Feinberg of Latham & Watkins LLP.