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Third Circuit Offers a Potential Path to Jurisdiction Using Boechler

Posted on June 6, 2023

In a non-precedential, per curiam opinion in the case of Robinson v. Commissioner, No. 22-3120 (3d Cir. 2023) the court reversed the decision of the Tax Court to dismiss Ms. Robinson’s Collection Due Process (CDP) case and remanded the case to the Tax Court for it to consider whether her response to the motion to dismiss filed by the IRS could qualify as a petition.  The facts are important here but so is the Third Circuit’s interesting use of the Supreme Court’s Boechler opinion to find a possible path to jurisdiction for Ms. Robinson.

Ms. Robinson owes money to the IRS. She requested a CDP hearing but filed her Tax Court petition before the IRS issued a notice of determination regarding her hearing. It’s not clear why she jumped the gun, but she did not jump it by too much because the IRS did issue a CDP determination letter about three weeks after she filed her petition. Because no CDP determination letter existed at the time of her petition, the IRS moved to dismiss her case for lack of jurisdiction. She responded to the motion objecting to dismissal and attaching a copy of the then issued notice of determination. Although her response addressed venue rather than jurisdiction, the Third Circuit gave her a hand.

The Tax Court dismissed her case citing the lack of a notice of determination at the time of the petition.

The Third Circuit began by noting that the Tax Court properly determined that it lacked jurisdiction without a notice of determination.  It then stated:

The Tax Court dismissed the action for lack of jurisdiction without addressing whether Robinson’s objection could be construed as a petition for review of the notice of determination.

That statement opens the door to jurisdiction wider than most might have thought possible.  After making this statement, the Third Circuit then reached back to a number of Tax Court opinions over the past five decades talking about how much the Tax Court tried to assist petitioners coming to its doors.

The Tax Court, in its discretion, has generally “leaned over backwards” to “acquire jurisdiction by virtue of documents filed by taxpayers and intended as petitions even though the documents do not comply with the form and content of petitions prescribed in the Rules of the Tax Court.” Castaldo v. Comm’r, 63 T.C. 285, 287 (1974).

It generally prefers to hold that it “has jurisdiction whenever possible so as to provide taxpayers with an opportunity to obtain judicial redetermination of their tax liability prior to the payment thereof.” Eiges v. Comm’r, 101 T.C. 61, 67–68 (1993); see also Gray v. Comm’r, 138 T.C. 295, 298 (2012) (explaining that claims in a petition “should be broadly construed so as to do substantial justice, and a petition filed by a pro se litigant should be liberally construed”). Because the Tax Court here did not address whether Robinson’s objection could be liberally construed as a second petition for review, we will vacate and remand so that it can make that determination. See, e.g., Goosby v. Comm’r, 117 T.C.M. (CCH) 1258 (2019) (treating the petitioner’s objection to a motion to dismiss a premature petition for review as a new petition seeking review of a notice of determination).

As I have discussed previously with regard to imperfect petitions, the Tax Court does make a concerted effort to assist taxpayers in getting in its doors; however, that effort has not extended to assisting taxpayers who were late or who were early.  The Vu case is a great example of the Tax Court not opening its doors to someone who was early.

Having pointed out the Tax Court generosity regarding jurisdictional determinations which regular readers of this blog will find interesting, the Third Circuit then goes on to determine that Boechler might create a path for the Tax Court to be generous to Ms. Robinson. The objection she filed to the IRS motion to dismiss was filed more than 30 days after the notice of determination was issued; however, the Third Circuit notes that after Boechler taxpayers need not meet the 30-day time period if they have a good reason for missing it. So, the Tax Court could use precedent such as Goosby to find that it has jurisdiction here.

The Third Circuit carefully states that the determination regarding equitable tolling is for the Tax Court, and it is not making a determination that Ms. Robinson had a good excuse for filing late. Still, the decision shows an inventive way that Boechler could assist a taxpayer in getting their day in court. It will be interesting to see how this case plays out on its return to the Tax Court.

Here’s to you Ms. Robinson.

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