LATE PETITION DOES NOT BAR TAX COURT CASE
July 24, 2022 - Douglas Myser
Late petition does not bar Tax Court case. In our ongoing coverage of cases related to Tax Court, we analyze an Eighth Circuit case. The U.S. supreme Court found that the time limit to file a petition with the Tax Court was not a condition of the Tax Court's jurisdiction but rather a non-jurisdictional rule relating to litigation procedure for which equitable tolling is available. The IRS issued a letter to a law firm, Boechler P.C., in 2015, indicating a discrepancy between the amount of wages it reported on Forms W-2 and the amount shown on Form 941 for its 2012 tax year. When Boechler did not respond to the letter, the IRS assessed a penalty of $19,250 under Section 6721 (e) for intentional disregard of the reporting requirements. The penalty was assessed in September 2015, and a notice of intent to levy was issued to Boechler in October 2016. Boechler made a timely request for a Collection Due Process Hearing. Late petition does not bar Tax Court case. Lat petition does not bar Tax Court case.
The Tax Court dismissed the case for lack of jurisdiction, and Boechler appealed to the Eighth Circuit, which had no clear precedent on this issue. The Ninth Circuit had previously held in Duggan that the 30 day time limit in Section 6330 (d)(1) is jurisdictional. In Myers, the D.C. Circuit in 2019 found that Section 7623(b)(4), which allows whistleblowers to petition the Tax Court for review of an award determination, is not jurisdictional. Citing Duggan, the Eighth Circuit affirmed the Tax Court. Boechler appealed the case to the Supreme Court which agreed to hear it. In a unanimous decision, the Supreme Court held Section 6330(d)(1)s 30 day time limit to file a petition for review of a CDP determination is a non-jurisdictional deadline subject to equitable tolling.
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