As I have written about previously[1], if a Tax Court petition is not timely filed, the Tax Court will generally[2] lack jurisdiction to hear such petition.[3]
In the cases mentioned in my previous article, taxpayers’ petitions were dismissed for lack of jurisdiction despite the taxpayers having good excuses, such as (1) the taxpayers mailed their petition via FedEx Ground[4] (rather than another FedEx service which would have qualified for the “mailbox rule” under Section 2502(a)) [5], (2) taxpayers filed their petition at 11:05 Central, rather than Eastern time, on the due date of the filing[6], and (3) a taxpayer filed his petition eleven seconds after the 12:00 deadline on the due date of the filing due to technical issues.[7]
While all of the aforementioned cases dealt with the ninety (90) day statutory period from the issuance of a notice of deficiency in which a taxpayer must petition the Tax Court under Section 6213(a) for a redetermination of such deficiency, my previous article also referenced a favorable case to taxpayers, Boechler, P.C. v. Commissioner[8], in which the Supreme Court held that the thirty (30) day period to petition for review of an IRS Independent Office of Appeals Decision (“Appeals”) is not a jurisdictional deadline, and therefore, subject to equitable tolling. In a recent Memorandum Opinion[9], the Tax Court considered whether a taxpayer being victim of identity theft was grounds for such equitable tolling. Unfortunately for the taxpayers in this case, it was not, and the taxpayers’ petition was dismissed.
The Facts
The taxpayers had an unpaid federal income tax liability for the 2015 tax year. In April of 2018, the IRS levied on the taxpayers’ state tax refund to collect the same and concurrently advised the taxpayers of their right to a collection due process (“CDP”) hearing, which the taxpayers requested and were heard. During the CDP hearing, Appeals verified the wife-taxpayer being the victim of identity theft dating back to 2012 but were unable to verify identity theft occurring in 2015. Additionally, the taxpayers failed to provide their 2015 tax return, an Identity Theft Affidavit, various other substantiating documents, and failed to request a collection alternative. Appeals eventually, a year after the CDP hearing, sustained the levy imposed on the taxpayers and advised the taxpayers they had thirty (30) days to file a petition with the Tax Court.
The taxpayers filed their petition in June of 2023, missing the thirty (30) day deadline by approximately four years. The IRS subsequently motioned the Tax Court to dismiss for lack of jurisdiction. Arguing against dismissal, the taxpayers claimed their late filing was caused by IRS accounting errors derived from the wife-taxpayer’s identity theft. Also, the taxpayers provided the Court with a statement from the United States Department of Justice (“DOJ”) verifying that the wife-taxpayer was indeed a victim of identity theft from 2010 through 2015. While the evidence provided by the taxpayers perhaps substantiated their underlying claim, it did not, however, include anything explaining or excusing the taxpayers’ four-year tardy petition.
The Law
A taxpayer may petition the Tax Court to review a notice of determination concerning a collection action under Section 6320 or 6330 within thirty (30) days of such determination.[10] This thirty (30) day deadline is a procedural requirement that is not jurisdictional[11], and the Tax Court has the authority to consider a late filed petition in a CDP case where the IRS raised the issue of timeliness, provided that the taxpayers show they are entitled to equitable tolling.[12] To be entitled to equitable tolling (and thus excusing the tardy filing), taxpayers must establish that they pursued their rights diligently and that extraordinary circumstances outside their control prevented them from filing on time.[13]
The Outcome
The Tax Court articulated the pro-se taxpayers’ position that they were prevented from timely filing their petition because they were victims of identity theft but ultimately found that all critical facts that would support equitable tolling occurred well before Appeals issued the Notice of Determination following the CDP hearing. Quoting the Court, “In sum, [the taxpayers] failed to establish that the identity theft affected the 2015 taxable year or to establish a causal link to the untimeliness of their late-filed [p]etition. Given different facts, it may be that identity theft establishes a causal link to clear the high bar needed to establish equitable tolling. However, for [the taxpayers], these facts are simply not present.” The Tax Court summarily dismissed the taxpayers’ petition, finding the taxpayers did not establish grounds to toll the limitations period under Section 6330.
Conclusion
The procedural requirements associated with Tax Court filings are nuanced, and even the simplest honest mistake may prove fatal to a taxpayer’s case. While the facts present in the subject case were not favorable to the taxpayer, nor was the Court’s opinion even remotely controversial, taxpayers should be conscious and aware of the strict statutory requirements of filing with the Tax Court. Even with thirty (30) day pleadings where the Court may consider equitable tolling (as opposed to the ninety (90) day period under Section 2502, where no such tolling is available[14]), the bar to equitably toll, as stated by the Court here, is high, so taxpayers should be diligent and consult with a tax professional to ensure all the nuanced requirements are met.
[1] https://esapllc.com/nguyen-case-2023/
[2] As an exception, in Culp v. Commissioner, No. 22-1789 (3d Cir. 2023), the Third Circuit reversed a Tax Court order dismissing the case for lack of jurisdiction and remanded to the Tax Court to find whether the taxpayer deserves equitable tolling. In this significant case, the Third Circuit, citing to Boechler, went against established precedent, finding that the ninety-day period was not jurisdictional and was thus subject to equitable tolling.
[3] I.R.C. Section 6213(a) provides that a taxpayer has ninety (90) days from the issuance of a notice of deficiency to file a petition with the Tax Court for redetermination of the deficiency.
[4] Nguyen v. Comm’r, T.C. Memo 2023-151.
[5] As used hereunder, any reference to “Section” shall mean the applicable Section of the Internal Revenue Code.
[6] Nutt v. Comm’r, 160 T.C. No. 10 (2023).
[7] Sanders v. Comm’r, 160 T.C. No. 16 (2023).
[8] 142 S. Ct. 1493 (2022).
[9] Debra Reed and Timothy Reed v. Comm’r, T.C. Memo 2025-4.
[10] Section 6330(d)(1).
[11] Boechler at 1493.
[12] Id. at 1496.
[13] Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255 (2016).
[14] See footnote 2, providing for an exception in the Third Circuit following the Culp decision.