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June 13, 2023 The Tax Lawyer

Congressional Primacy, Equitable Tolling, and Tax Court Deficiency Litigation

Vol. 76, No. 3 - Spring 2023

by Steve R. Johnson


To obtain prepayment judicial review of deficiencies determined by the Internal Revenue Service, a taxpayer must file a Tax Court petition within 90 days of the issuance of the notice of deficiency. It has long and universally been held that the statutory petition period is jurisdictional and is not subject to equitable tolling.

In recent decades, however, the United States Supreme Court has considered in a variety of contexts whether filing rules thought to be jurisdictional are instead merely claims-processing rules potentially subject to equitable tolling. The Court’s decisions in these cases have not always been easy to reconcile, but they prompted commentators and litigants to urge reversal of the long-established view as to the 90-day filing requirement in Tax Court deficiency actions. This effort gained steam when the Supreme Court held in 2022 that the 30-day filing period for Tax Court collection due process petitions is not jurisdictional and may be tolled in appropriate cases.

This Article maintains that the courts should reaffirm that the 90-day deficiency action petition period is not subject to equitable tolling. It argues that such a result is mandated by congressional primacy and by fundamental principles of statutory interpretation. The Article also maintains that such reaffirmation is consistent with the Supreme Court’s teaching.

During the editing of this Article, the Tax Court confirmed the established rule in a full-court reviewed decision. It did so on grounds similar to those developed in this Article. Nonetheless, the controversy is far from over. The Tax Court’s decision is likely to be appealed; one federal circuit court is hearing appeal in another case on the same issue; appeals to other federal circuits are likely; and Supreme Court consideration is quite possible, especially if conflicts arise among the circuits.

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