Is the 90-Day Tax Court Petition Deadline Jurisdictional, Courts Split

Is the 90-Day Tax Court Petition Deadline Jurisdictional, Courts Split

Is the 90-Day Tax Court Petition Deadline Jurisdictional

The general rule is that the 90-day Tax Court petition deadline is set in stone. In other words, the US government has always taken the position that if a taxpayer misses the deadline to petition the Tax Court — even by a single day — then a taxpayer loses their right to petition the Tax Court. As you can imagine, this is an incredibly harsh rule, especially considering with tax court, many taxpayers represent themselves in these types of proceedings. The reason for the strict interpretation of this rule was that the government always claimed that the deadline was jurisdictional — and so equitable tolling would not apply. But, there have been some recent kinks in the Tax Courts armor, with at least one Court of Appeals (Third Circuit) ruling that the 90-day tax petition deadline is non-jurisdictional. This follows a recent ruling in Boechler in which the Supreme Court took the position that the 30-day deadline required to petition the Tax Court after a Collection Due Process Hearing ruling is non-jurisdictional so that feasibly, the petition could be brought after the 30-day deadline. Let’s take a look at what the courts say regarding the 90-day tax court petition deadline.

26 U.S.C. Sec 6213(a)

In pertinent part:

      • “Time for filing petition and restriction on assessment.

        • Within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.”

Culp (Tax Court)

In Culp, the Petitioner brought their claim to the Tax Court, where they lost because the Tax Court came to the determination that the matter is jurisdictional and that because it was not brought within 90 days, the taxpayers were untimely in their petition.

      • “Upset at the IRS for levying on their property, the Culps filed a petition in the Tax Court seeking, among other things, a “refund of all payments made under protest, or levied on, or executed on by the IRS.” A20. The Tax Court dismissed their petition for lack of jurisdiction, reasoning its “jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition.” A157 (citing 26 U.S.C. §§ 6212, 6213, 6214). It found the petition was untimely because the Culps did not file it within 90 days of the date the IRS sent them the second notice of deficiency. They timely appealed.”

Culp (Third Circuit Court of Appeals)

The key issue in this case is whether or not the petition is considered jurisdictional, because if it is jurisdictional and they missed the time to file the petition, then the court simply does not have jurisdiction to hear the case:

      • “Jurisdictional requirements mark the bounds of a ‘court’s adjudicatory authority.’” Boechler, P.C. v. Comm’r, 142 S. Ct. 1493, 1497 (2022) (quoting Kontrick v. Ryan, 540 U.S. 443, 455 (2004)). If a jurisdictional requirement is unmet, the court lacks power to hear the case. See Jaludi v. Citigroup 8 & Co., 57 F.4th 148, 151 (3d Cir. 2023) (“[V]iolating a jurisdictional procedural requirement locks the courthouse doors.”).

The opinion refers to the case of Boechler, which was a recent Supreme Court case in which the Supreme Court took the position that the 30-day time limit to petition after a Collection Due Process hearing is not jurisdictional, and thus a late-filed petition could still be considered by the Tax Court:

      • “Boechler represents the Supreme Court’s approach on whether a deadline is jurisdictional. The Court analyzed § 6330(d)(1)’s 30-day time limit to petition the Tax Court for review of collection due process determinations. That provision reads that “[t]he 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).” 26 U.S.C. § 6330(d)(1). The Supreme Court held the deadline is not jurisdictional.”

In Culp, the U.S. Court of Appeals for the Third Circuit agrees with Petitioners and rules that 90/150 time to petition is not jurisdictional:

      • “If the § 6330(d)(1) deadline in Boechler fell short of being jurisdictional, § 6213(a)’s limit must as well. For one, there is no “clear tie between the deadline and the jurisdictional grant.” Boechler, 142 S. Ct. at 1499. The most pertinent part of § 6213(a) provides that “[w]ithin 90 days . . . after the notice of deficiency . . . is mailed . . . the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.” Nothing in that language links the deadline to the Court’s jurisdiction. Yet, elsewhere in § 6213(a), Congress specified that “[t]he Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for a redetermination of the deficiency has been filed and then only in respect of the deficiency that is the subject of such petition.” 26 U.S.C. § 6213(a). So Congress knew how to limit the scope of the Tax Court’s jurisdiction. It expressly constrained the Tax Court from issuing injunctions or ordering refunds when a petition is untimely. But it did not similarly limit the Tax Court’s power to review untimely redetermination petitions.

      • For all these reasons, we hold that § 6213(a)’s deadline is subject to equitable tolling. We remand this case to the Tax Court to decide whether the Culps are entitled to that relief.”

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