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Atuke v. Comm’r: A Clearly Unfair Dismissal for Lack of Jurisdiction Where the Taxpayer Had No Time to Timely File

Posted on Apr. 19, 2016

We welcome back frequent guest blogger Carl Smith who writes today about an individual trying to become a Tax Court petitioner from Kenya. Because he sought to petition following a Collection Due Process (CDP) notice, the individual was unable to get the petition to the Court within the 30 day period provided by the statute. This is not the first, nor will it be the last, CDP case in which someone tries to get into the Tax Court and cannot do so because of insufficient time between receipt of the notice and the end of the 30 day period. Carl will talk about the problem in more detail from the perspective of the unfairness of the statute for those who will receive the notice only after significant built in delays. I want to use this case to also point out that to the extent that Congress put such tight time frames on the opportunity to request a CDP hearing and to petition following a determination in an apparent effort to speed up this process, Congress put no time frames on Appeals or the Tax Court. Carl and I did a pair of studies several years ago, linked here and here, showing that CDP cases took longer to work their way through Appeals and through the Tax Court than deficiency cases. Maybe this has changed marginally in the years since our articles, but I suspect the underlying issue remains that taxpayers seeking relief under CDP must act very quickly under the fiction that this process is designed for speed when the only speedy part is the swiftness with which they lose their rights to a CDP hearing and a Tax Court review. Keith

I am sure it gave Chief Judge Thornton no pleasure on April 15, 2016, to issue his unpublished order dismissing for lack of jurisdiction the CDP case brought by Jeremiah Atuke, Tax Court Docket No. 31680-15SL (order). The problem in the case: Section 6330(d)(1) provides that a taxpayer has only 30 days to file a CDP petition. Unlike section 6213(a), which gives an extra 60 days to file (on top of the normal 90 days) where a notice of deficiency is addressed to a taxpayer outside the United States, nothing extends the 30-day filing period for a CDP petition when the CDP notice of determination (NOD) is addressed to a person outside the United States. In Atuke, the CDP NOD was addressed to the taxpayer in Kenya. He apparently did not receive it until after the 30-day period to file had expired. So, the Tax Court dismissed the taxpayer’s belatedly-filed petition for lack of jurisdiction.

A legislative fix is needed – though the IRS could be more helpful, even without a legislative fix.

In Atuke, the IRS issued a CDP NOD by mailing it by registered U.S. mail on October 14, 2015 to an address in Nairobi, Kenya.  The taxpayer told the Tax Court that on November 23, 2015 he was notified that he had a letter waiting at the post office in Nairobi. That date was already beyond the 30-day period in section 6330(d)(1) in which he could timely file a Tax Court petition in response thereto. The taxpayer says he picked up the letter the next day, and he then mailed a petition to the Tax Court only 9 days later, on December 3, 2015.  The petition arrived at the Tax Court on December 21, 2015 – over 60 days after the date of the CDP NOD – bearing a December 3, 2015 postmark by the Kenyan postal service.

The Tax Court held that the time period in which to file in section 6330(d)(1) is jurisdictional, and since the petition did not arrive until December 21, 2015, it was late and had to be dismissed for lack of jurisdiction.


The taxpayer rightly complained that the IRS should know that registered mail to Kenya is going to take a long time, and suggested that the IRS should have sent the NOD by “a faster mail option such as DHL, FedEx, etc, which deliver mail/packages within 2 to 3 days.”

While I understand that the IRS feels that, even though the statute doesn’t say so, the IRS must send the NOD by certified or registered U.S. Mail, can’t the IRS also send a courtesy copy by the faster private delivery services (or a faster USPS service) in cases where the IRS knows that certified or registered mail is likely to take more than 10 days?

Interestingly, unlike for NODs, the statute does provide detailed rules for issuing notices of intention to levy (NOILs). Under section 6330(a)(2), an NOIL must be “(A) given in person, (B) left at the dwelling or usual place of business of such person, or (C) sent by certified or registered mail, return receipt requested, to such person’s last known address”. So, unlike for NOILs, the IRS is probably free to change the regulations about the services for mailing NODs to deal with the situation of taxpayers outside the United States.

And maybe it is time for Congress to amend the Code to add 60 days to any period to file in the Tax Court when the predicate notice is addressed to a taxpayer outside the United States.  (Such amendment should also add 60 days for the time to file for a CDP hearing in similar circumstance in response to an NOIL or notice of filing of a federal tax lien.)

Finally, although I am not going to jump in and volunteer on this case, readers probably know that I don’t think the Tax Court’s precedent is correct that the 30-day period to file a CDP petition is jurisdictional. I think the period is a non-jurisdictional statute of limitations that is subject to equitable tolling in appropriate cases.  See my most recent of many posts on this.  Mr. Atuke’s case may not be the best one for arguing for equitable tolling, since, even if he could be deemed to have received the NOD in time to file a Tax Court petition, arguably, he contributed to the delay in filing the petition by using the Kenyan mail service that took 18 days to get the petition to the Tax Court.  Foreign postmarks do not get the benefit of the timely mailing is timely filing rules of section 7502.  Sarrell v. Commissioner, 117 T.C. 122, 126 (2001) (involving a CDP petition).

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