Deadline to File Petition for Review with Tax Court is Jurisdictional says the 9th Circuit

Summary written by Pardis Akhavan, associate at Resnik Hayes Moradi LLP

Duggan v. Commissioner of IRS, 879 F.3d 1029 (9th Cir 2018)      

Issue: Is the thirty-day deadline to file a petition for review of IRS’s determination with the Tax Court jurisdictional or can the deadline be tolled equitably?

Holding: No, § 6330(d)(1) conditions the Tax Court’s jurisdiction on timely filing of a petition for review.

The IRS mailed two Notices of Determination to taxpayer which proposed collection of unpaid income taxes.  Both notices informed the taxpayer that he could dispute the IRS’s determination by “fil[ing] a petition with the United States Tax Court within a 30-day period beginning the day after the date of this letter.”  Thirty one days after receipt of the Notice of Determinations the taxpayer mailed a petition for review to the Tax Court.  The IRS Commissioner moved to dismiss the petition for lack of jurisdiction.  The Tax Court agreed and granted the motion dismissing the petition on jurisdictional grounds.

The 9th Circuit affirmed.   It first commented that “before the court may consider whether 6330(d)(1)’s thirty-day deadline may be equitably tolled, the taxpayer must first establish that the deadline is not jurisdictional because if the deadline is jurisdictional then the taxpayer’s failure to comply with the deadline places the case beyond the powers of the court. United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015).”  In order to determine whether a deadline is jurisdictional, the 9th Circuit stated that “because the ramifications of missing a jurisdictional deadline are severe, the Supreme Court has emphasized that filing deadlines are jurisdictional only if Congress “Clearly state[d]” them to be so.  Sebelius v. Auburn Reg’l Med.Ctr., 568 U.S. 145, 153(2013).  Therefore, “Congress must do something special, beyond setting an exception-free deadline, to tag a [filing deadline] as jurisdictional and so prohibit a court from tolling it.” Kwai Fun Wong, 135 S. Ct. at 1632.”

The court reasoned that the test as to Congress’s intent is whether Congress made a clear statement.  The statute does not expressly state that “the 30-day deadline to file for a review is jurisdictional” however the 9th Circuit concluded that when reading the statute, “the plain language of §6330(d)(1) confers jurisdiction on the Tax Court if and only if a petition for review is filed within thirty days of the IRS’s determination.”  It held that “the statute at issue expressly contemplates the Tax Court’s jurisdiction and the filing deadline is given in the same sentence as the grant of jurisdiction.”  The 9th Circuit further emphasized the clear language of the statute declaring the deadline jurisdictional by stating that “’mere proximity will not turn a rule that speaks non-jurisdictional terms into a jurisdictional hurdle,’ but the context and language of §6330(d)(1) unambiguously makes timely filing of the petition a condition of the Tax Court’s jurisdiction.”

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