Congressional Primacy, Equitable Tolling, and Tax Court Deficiency Litigation

Abstract

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.

I. Introduction

When a taxpayer wishes to contest Service determinations set out in a notice of deficiency without first paying the additional tax determined by the Service, the taxpayer must file a petition with the Tax Court within a statutorily prescribed period. The rules defining that period are many and are interrelated. For convenience, this Article will often call this complex timing regime the “90-day rule” because 90 days from the issuance of the notice of deficiency is the most common deadline, but the shorthand “90-day rule” should not obscure the full complexity of the rule. For nearly a century, it had been settled law that the statutorily prescribed 90-day filing period in deficiency cases is jurisdictional and is not amenable to tolling—except to the extent that Congress specifically authorizes tolling by statute.

However, recent events have raised the question whether this view should be reconsidered. In April 2022, in Boechler, P.C. v. Commissioner, the Supreme Court considered the nature of the statutory deadline for filing petitions to obtain Tax Court review in collection due process (“CDP”) cases. The Court held that the statutorily prescribed 30-day filing period is not jurisdictional and is subject to nonstatutory equitable tolling in “appropriate cases.”

Encouraged by Boechler, a number of taxpayers have urged the overthrow of the established view as to the 90-day deficiency action petition period. In December 2022, in the full-court reviewed Hallmark Research Collective case, the Tax Court unanimously reaffirmed the established view. However, Hallmark is likely the beginning of this road, not the end of it. Hallmark is likely to be appealed, as will be other cases recently decided by the Tax Court and to be decided by it in the future. Indeed, at the time of the publication of this Article, such an appeal already is before a federal circuit court. Review by the Supreme Court would be quite possible were a circuit conflict to arise. Indeed, Supreme Court review could occur even without a circuit conflict. The Court took and decided Boechler even in the absence of such conflict, and deficiency actions are far more important to the tax controversy resolution system than are CDP actions.

This Article does not discuss in detail the reasons why the 90-day period should continue to be held to be jurisdictional. Instead, it focuses on equitable tolling. This Article maintains that, even were the courts eventually to conclude that the 90-day period is a claims-processing rule rather than a jurisdictional one, they nonetheless should refrain from creating, by judicial fiat, a general, nonstatutory equitable tolling rule.

The distinction between “statutory equitable tolling” and “nonstatutory equitable tolling” is crucial. Statutory tolling is when Congress expressly writes an equitable tolling provision into the statute. Nonstatutory tolling is when Congress has written no such provision into the statute but a court adds one as a “gloss” upon the statute. This Article will show that Congress has already written many limited equitable tolling (and related) provisions into the 90-day filing period regime. The Article maintains that Congress’s choice to establish these mechanisms instead of creating a general, open-ended equitable tolling regime, bars the courts from rewriting the statute to provide for nonstatutory tolling.

The Article proceeds in five parts. Parts II and III are foundational. Part II describes Tax Court deficiency litigation and indexes the settled understanding that the 90-day petition period is jurisdictional and impervious to equitable tolling. Part III describes Boechler and the body of case law from which it arises. It also notes that Boechler itself indicates that some tax filing requirements are indeed jurisdictional and cannot be equitably tolled. Part IV draws attention to first principles. Congress, not the courts, is empowered to make the policy choices. Boechler and related Supreme Court cases acknowledge that jurisdiction and tolling decisions are up to Congress. The role of the courts is simply to faithfully interpret the relevant statutes to honor the choices Congress made. Part V establishes four points: (1) under traditional principles of statutory interpretation, when Congress has drafted an intricate, comprehensive statute, no room remains for courts to modify or supplement the statute by adding common law or equitable features that Congress did not include; (2) the Supreme Court followed this principle in the Brockamp case in holding—unanimously—that the statutory time period for seeking refunds of overpaid taxes is not amenable to equitable tolling; (3) Boechler confirmed that Brockamp remains good law; and (4) Congress’s consideration and design of the deficiency petition filing period has been even more careful, and the resulting statutory scheme is even more intricate, complex, and comprehensive than the statutory scheme at issue in Brockamp. Part VI concludes. For the stated reasons, the conclusion as to refund timing requirements that the Court reached in Brockamp and reaffirmed in Boechler—the conclusion that the courts should not “gloss” the statute by imposing onto it an equitable tolling rule that Congress did not enact—is also the conclusion the courts should reach as to the deficiency petition timing requirements, regardless of what they hold as to the jurisdictionality of those requirements.

II. Tax Court Deficiency Litigation

A. Description and Significance

The Tax Court began life in 1924 as an independent executive agency, the Board of Tax Appeals (“BTA”). In 1942, Congress renamed the Board the “Tax Court of the United States” although its jurisdiction, powers, and duties were unaltered, and it remained an independent agency within the Executive Branch. Finally, in 1969, Congress ended the tribunal’s status as an agency. It established the “United States Tax Court” as an Article I court of record, the jurisdiction of which is conferred by statute. As currently constituted, “[t]he Tax Court’s function and role in the federal judicial scheme closely resemble those of the federal district courts.”

The Supreme Court has taught that the Tax Court “is a court of limited jurisdiction and lacks general equitable powers.” However, Congress has conferred limited equitable powers on the Tax Court. In many respects, the case law as to the Tax Court’s equitable powers is far from clear. A court reviewing a Tax Court decision lacks jurisdiction to grant relief that the Tax Court itself lacked jurisdiction to grant.

The BTA’s jurisdiction was limited to deficiency cases. In such cases, the taxpayer is permitted to challenge, on a prepayment basis, additional tax liabilities determined by the Service as long as (1) the Service issued a notice of deficiency formally determining these additional liabilities, and (2) the taxpayer filed a petition contesting these determinations within the period prescribed by law.

Over the decades, Congress expanded the Tax Court’s jurisdiction to many other types of tax controversies. However, throughout the Tax Court’s various iterations and still today, deficiency cases have been far-and-away the bulk of the Tax Court’s workload, constituting in one recent year over 96% of the cases filed in the Tax Court.

B. Consensus that the 90-Day Petition Period Is Jurisdictional and Not Subject to Equitable Tolling

In 1924, the very first year of the BTA’s existence, the BTA held that the failure of a taxpayer to file, within the time period established by statute, a petition contesting a notice of deficiency issued by the Service deprived the BTA of jurisdiction to hear the case.

Since then, the Tax Court has adhered to this position in an unbroken line of cases, involving thousands of reported decisions and unreported orders dismissing untimely petitions. With equal consistency, the Tax Court has held that, because the prescribed filing period is jurisdictional, that period cannot be suspended or extended except by Congress. The Tax Court reaffirms these views in multiple cases each year. For example, in 2016, in an en banc decision, the Tax Court unanimously (17 to 0) adhered to the court’s long settled view.

In holding this view, the Tax Court has a lot of company. The federal circuit courts of appeals concur. As the Ninth Circuit noted, “we have consistently adopted a jurisdictional reading of [the 90-day petition period] . . . for more than 80 years . . . . Other circuits are in accord, some of them for even longer periods of time.” Indeed, every federal circuit court to which Tax Court deficiency decisions may be appealed has held that the statutory deadline is jurisdictional.

III. Boechler and Related Cases

A. Boechler’s Antecedents

Timing rules in law are not all of the same ilk. For present purposes, a relevant distinction is between jurisdictional requirements on the one hand and nonjurisdictional claims-processing rules on the other hand.

Jurisdictional requirements address the authority of the particular court to hear the particular case. Three main consequences flow from this. First, the parties to the case cannot confer jurisdiction by agreement; they cannot waive a jurisdictional defect; and they cannot forfeit a jurisdictional argument by waiting too long before raising it. Second, should the court detect a substantial jurisdictional question that the parties have not noticed, the court is obliged to raise the question sua sponte. Third, a jurisdictional defect cannot be excused or cured through equitable principles, including equitable tolling.

In contrast, claims-processing rules do not speak to the court’s authority to hear and decide a matter. Instead, they exist to “promote the orderly progress of litigation.” Accordingly, an argument based on failure to satisfy a claims-processing rule may be lost by the choice or by the inadvertence of a party, a court is not compelled to raise the matter on its own, and equitable principles may operate to relax the rigor of the rule.

Judges, the Court believes, too often defaulted to treating statutory timing rules as jurisdictional, a tendency the Supreme Court has denigrated as “drive by” jurisdiction decision-making. This perception launched the Court on a campaign to “bring some discipline to the use of this term [jurisdiction].” Although there were earlier decisions along similar lines, the campaign intensified in the middle of the first decade of this millennium. There are now dozens of cases in this line. Boechler is among the most recent of these cases.

B. Boechler Itself

Boechler, P.C. is a law firm and employer. In 2015, the Service “notified Boechler . . . of a discrepancy in its tax filings.” Boechler did not respond until the Service finally got the law firm’s attention by assessing against it a penalty for intentional disregard of reporting requirements and by notifying the firm of the Service’s intention to seize and sell property of Boechler’s in order to satisfy the penalty.

Boechler requested and received a CDP hearing with the IRS Independent Office of Appeals, but that office upheld the intended levy. Under section 6330(d)(1), Boechler then had 30 days to file a petition to obtain Tax Court review of the Appeals Office’s determination. “But Boechler dropped the ball and filed its petition a day late.” The Tax Court dismissed the petition for lack of jurisdiction, and the Eighth Circuit affirmed. The Supreme Court granted certiorari.

Justice Barrett wrote the opinion for a unanimous Court. The opinion addressed two issues: (1) whether the 30-day CDP petition period is jurisdictional, and (2) whether that period is amenable to nonstatutory equitable tolling.

These issues are partly independent. A holding that a timing requirement is jurisdictional precludes equitable tolling. A court lacks power to grant any relief if it lacks authority to consider the case. However, a holding that the requirement is not jurisdictional does not automatically tow equitable tolling in its wake. Instead, only a presumption in favor of the availability of equitable tolling arises, and that presumption is rebuttable.

This Article concerns the second issue (nonstatutory equitable tolling) and whether it should be found to be available in deficiency cases. For context, however, we briefly rehearse Boechler’s treatment of the jurisdiction issue before discussing Boechler’s treatment of tolling.

1. CDP Jurisdiction

Boechler recounted the principal holdings of previous cases of its line. Given the Court’s desire “to bring some discipline” to the courts’ use of the term “jurisdiction,” the Court will treat a statutory or regulatory timing rule as being jurisdictional only if Congress “clearly states” its intention to treat the rule as jurisdictional.

Congress need not state that intention by reciting an incantation of “magic words.” Instead, that intention may be evinced by any of a number of indicators revealed by application of the “traditional tools of statutory construction.”

On that foundation, Boechler considered the parties’ arguments based on the language of section 6330(d)(1), the structure of the section, the broader statutory context, policy, and the Service’s analogizing CDP to the deficiency context. The Court acknowledged that the case was “hardly a slam dunk” for Boechler and that the Service offered “a plausible interpretation of the statute. Some might even think it better than Boechler’s.” However, said the Court, the Service’s “interpretation must be not only better, but also clear,” a threshold the Court concluded had not been crossed.

The Court’s approach in this regard is troubling on transparency and “rule of law” grounds. Where is the line between “better” and “clear”? Fifty-one percent of the case falls short of being clear, Boechler tells us, but what level of confidence must be reached before the government enters the Golden Chamber of “clear”? Sixty percent? Seventy percent?

As long as “clear” is undefined, an opinion that says “government, you had a good argument, maybe even the superior argument, but it not clear enough” is inherently unverifiable. It has an “eye of the beholder” character akin to Justice Potter Stewart’s much criticized “I could never succeed in [defining it] intelligibly . . . [b]ut I know it when I see it,” jurisprudence of pornography.

In any event, Boechler should not be read as a signal that the Court will treat all filing deadlines in tax as nonjurisdictional. To the contrary, Boechler gave two examples of tax timing rules that likely are jurisdictional: the Tax Court has jurisdiction to hear certain interest-abatement cases under section 6404(g)(1) and to review Service denials of equitable relief from joint-and-several liability under section 6015(e)(1)(A). Boechler stated that both of these provisions “much more clearly link their jurisdictional grants to a filing deadline” than does the CDP provision, section 6330(d).

2. CDP Equitable Tolling

Justice Barrett’s opinion for the Court correctly noted that “[o]f course, the nonjurisdictional nature of the [CDP petition] filing deadline does not help Boechler unless the deadline can be equitably tolled.” The opinion directed attention to the right inquiry: what was the intention of Congress? It explained the presumption in terms of Congress’s intent, as follows: “Equitable tolling is a traditional feature of American jurisprudence and a background principle against which Congress drafts limitations periods. Because we do not understand Congress to alter that backdrop lightly, nonjurisdictional limitations periods are presumptively subject to equitable tolling.”

For four principal reasons, the Boechler Court concluded that the presumption was not overcome in the CDP context. First, the statute did not expressly preclude equitable tolling. Second, section 6330 is “unusually protective of taxpayers and a scheme in which laymen, unassisted by trained lawyers, often initiate the process.” Third, the Service invoked the Court’s unanimous Brockamp decision holding nonstatutory equitable tolling to be inapplicable to the statutory deadlines for taxpayers to file refund claims. The Boechler Court did not deny that Brockamp remains good law, but it found Brokamp to be distinguishable in several respects. Fourth, the Service argued that the possibility of equitable tolling would create practical problems in collecting assessed taxes. The Court deemed this concern to be exaggerated.

In discussing the equitable tolling issue, the Boechler Court did not resort to the approach it had used as to the jurisdiction issue: the “good argument but not clear enough” approach. The government must rebut the presumption in favor of equitable tolling, but there is no heightened threshold of persuasion as to tolling as there is as to jurisdiction. A successful rebuttal must meet a “preponderance” standard but evidently need not rise to the higher (although no one knows how much higher) “clear” standard.

C. Boechler’s Discussion of the 90-Day Rule

Although Boechler concerned the CDP petition period, the opinion did briefly discuss the 90-day deficiency petition filing period. It did so because one of the Service’s arguments was that the CDP petition period “is jurisdictional because at the time that deadline was enacted, lower courts had held that an analogous tax provision [the 90-day rule] regarding IRS deficiency determinations is jurisdictional.” The Service’s argument continued: “According to the [Service], Congress was aware of these lower court cases and expected [the CDP timing rule] to have the same effect[, and this] statutory backdrop resolves any doubt that might linger in the text.”

The Boechler opinion described this as the Service’s “weakest argument” because the cases cited by the Service were lower court decisions “almost all [of which] predate this Court’s effort to ‘bring some discipline’ to the use of the term ‘jurisdictional’.”

This statement by the Court is dictum. It rejects the Service’s argument because the Service failed, in the Court’s estimation, to offer convincing proof, not because the argument is contrary to law. The dictum says merely “because they didn’t consider our recent decisions, your cases do not show that the 90-day rule is jurisdictional.” This is a far cry from saying “our recent decisions establish that the 90-day rule is nonjurisdictional.”

The dictum is dubious, both historically and doctrinally. Because this Article focuses on equitable tolling, not jurisdiction, these problems will be noted here only briefly, leaving their full development to future articles. First, historically, many of the recent cases reaffirming the long settled view do, in fact, discuss and distinguish cases involving the Supreme Court’s “more discipline please!” jurisprudence.

Second, doctrinally, any suggestion that only Supreme Court cases can fix the meaning of a statute would be inconsistent with numerous precedents of the Court holding that an unbroken line of lower court decisions—or even the unwavering positions of the relevant administrative agencies—can fix the meaning of the law (unless these decisions and positions are plainly inconsistent with the statute). Leading authorities on statutory interpretation—from both the dynamic–purposivist and textualist camps—read the case law as supporting these propositions. Moreover, in Bowles, one of the cases in the “more discipline please!” line, the Supreme Court held, for stare decisis reasons, that the challenged timing rule was indeed jurisdictional, a conclusion the Court reached on the strength of both Supreme Court and lower court decisions.

IV. Primacy of Congress

American lawyers sometimes are a bit too court-centric, especially Supreme Court-centric, in their outlook. In non-constitutional matters, Congress is the key decisionmaker, and the courts are the “faithful agents” of Congress. It is fundamental to our constitutional order that Congress and the President possess “will” (the authority to write policy choices into law) while the courts possess not will but only “judgment” (to interpret Congress’s decisions.).

Of particular relevance to this Article, congressional primacy exists in two dimensions: (1) establishing, empowering, and limiting courts and agencies, and (2) creating the rules of taxation and tax administration.

A. Congressional Primacy in Constituting Courts and Agencies

“The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Congressional discretion is vast. A Supreme Court there must be, says the Constitution, but its size and facilities are not specified. Beyond a few enumerated areas, it is up to Congress to define the Supreme Court’s jurisdiction.

Federal courts below the Supreme Court there may be. That is up to Congress. Congress may or may not create lower Article III courts and may empower them as it chooses. Congress also may create and vest judicial power in so called “legislative” or Article I courts. And Congress may create and invest adjudicatory powers in federal agencies, especially in “public rights” matters such as tax cases.

Accordingly, for the first 11 months of this country’s existence under the Constitution, there was no federal judiciary at all. There was none until the Judiciary Act of 1789, which fixed the number of Supreme Court justices at six, established one Article III district court in each state, and created circuit courts which were primarily trial courts. From 1789 to 1891, by statute, one of the primary responsibilities of the Supreme Court justices was to “ride circuit,” that is, “to serve as roving trial judges in the lower federal courts.” When in Washington, D.C., the Court had no building of its own but instead heard cases in space afforded it in the Capitol Building. The Court did not have fully independent space until 1935.

Congress has the power to make “Exceptions” and “Regulations” to the Supreme Court’s “appellate jurisdiction.” Not until 1891 did Congress create the federal circuit courts of appeals. For most of the Supreme Court’s history, the Court’s jurisdiction was principally mandatory. The shift to the contemporary, largely “all discretionary” certiorari jurisdiction of the Court came about under legislation in 1925 and 1988.

The point of this brief “walk through history” is that, subject to limited constitutional constraint, it is Congress that defines the jurisdiction and adjudicatory powers of Article III courts, Article I courts, and agencies. This includes, of course, the jurisdiction and adjudicatory powers of the former BTA (an independent agency), the former Tax Court of the United States (an independent agency), and the current United States Tax Court (an Article I court). In the controversy addressed by this Article, the Supreme Court’s role is not to decide what the jurisdiction and adjudicatory powers of the Tax Court should be, but instead to faithfully reflect what Congress has decreed that they are.

B. Congressional Primacy in Taxation

The foregoing is reinforced by the fact that the germane area of law is tax and the fact that the primacy of Congress in tax is undoubted. It is to Congress that the Constitution commits the “Power to lay and collect Taxes.” There is no “natural law” of taxation. The extent of a taxpayer’s liability for tax depends solely upon what the positive law provides, and judicial deference to congressional classifications is at its zenith in tax matters.

Of course, tax regulations promulgated by the Treasury Department are very important, but they have force of law only to the extent that Congress has delegated the power. And, there are a considerable number of common law rules in tax, but they are interstitial, not primary.

Congressional primacy in tax matters flows inevitably from the “will versus reason” premise of the Constitution noted above. Politics is the process by which conflicting interests and desires within the polity are weighted, balanced, compromised, and accommodated to make possible communal life without violence. Taxation—which declares how much each person will bear of the cost of operating the government—is about as political as things can get. Thus, tax decisions are matters of will, the natural domain of the democratically elected Congress.

C. Policies and Values Congress Must Balance

Congressional primacy in taxation not only is constitutionally required, but it also makes good sense. This is so for three reasons. First, taxation is central to the very enterprise of government, both by funding spending programs and by itself being an instrument of regulation. In a democracy, officials elected by, and directly responsible to, the people—not unelected judges—are expected to deal with fundamental matters.

Second, taxation is about deciding which persons and activities will bear which proportions of the cost of running the government. Unsurprisingly, various constituencies have rather different ideas on this score. Thus, taxation implicates the fundamentally political (that is, “will” based) process of reconciling, compromising, and accommodating divergent groups’ interests.

Third, taxation entails identifying and balancing policy priorities. There traditionally has been consensus on what the goals of our substantive tax laws should be—although not necessarily on how much priority each goal should have in particular contexts. These goals include: achieving an adequate and certain stream of revenue to fund government operations, minimizing adverse economic effects, providing fairness to (and among) taxpayers, and effective, efficient, and practical administration. In addition, the substantive provisions of the tax law have been used by both major political parties to support a wide range of nonrevenue objectives in housing, health, transportation, income redistribution, and numerous other areas.

Some of these policy goals also operate as to procedural tax law. In previous work, the author of this Article surveyed a dozen milestones in the development of our procedural tax statutes and from this history distilled the following four sets of animating procedural tax policies:

(1) providing remedies for taxpayers and third parties that are both meaningful and perceived to be fair; (2) protecting revenue collection from unreasonable interference; (3) achieving decisional accuracy; and (4) promoting process efficiency, reducing costs and delays.

Of these, providing fair and efficacious remedies has historically been most evident. However, solitary values typically are not absolute, and, depending on the situation, competing values often have predominated over taxpayer protection. Moreover, stability of the law matters. In Justice Brandeis’ often quoted words (written in a tax case), it frequently is more important that a legal rule “be settled than that it be settled right.”

Such are the values and policies out of which Congress writes the procedural provisions of the tax law. When, as often is the case, tension—or outright conflict—between these goals exists in a province of the procedural tax law, choice must be made as to which values to prefer, which to subordinate, and how to balance them. Such choice is primarily a matter of “will,” thus the domain of Congress.

D. Recognition of Congressional Primacy by the Boechler Line of Cases

Professor Bryan Camp wrote an important early article discussing “New Thinking” in the area of our concern. But, in at least one important respect, the line of cases of which Boechler is a part reaffirms “Old Thinking.” These cases accept the proposition that the will of Congress controls.

In Zipes, one of the seminal cases in this line, the Supreme Court looked to “[t]he structure of [the statute involved]” and “the congressional policy underlying it” before it turned to “the reasoning of [the Court’s] cases.”

Irwin, another of the foundational cases, stressed that the courts “must be careful not to assume the authority to narrow the waiver [of sovereign immunity] that Congress intended or to construe the waiver unduly restrictively.” Irwin recognized congressional primacy because the case sought “to produce a set of statutory interpretations that will more accurately reflect Congress’ likely meaning.” And Irwin and other cases reflect judicial assumptions “about the comparative weight Congress would likely have attached to competing legitimate interests.”

Indeed, the idea that the Court should correct ill-considered “drive by” holdings of jurisdictionality rests on the premise that “[o]nly Congress may determine a lower federal court’s subject matter jurisdiction.” Thus,

[b]ecause Congress decides whether federal courts can hear cases at all, it can also determine when, and under what conditions, federal courts can hear them . . . . [I]t is no less ‘jurisdictional’ when Congress prohibits federal courts from adjudicating an otherwise legitimate ‘class of claims’ after a certain period has elapsed.

The Supreme Court’s recognition of congressional primacy as to jurisdiction is mirrored by the Court’s recognition of congressional primacy as to the extent, if any, to which a statutory timing rule may be modified by equitable tolling. “[W]hether a tolling rule applies to a given statutory time bar is one of statutory intent.”

V. Nonstatutory Equitable Tolling Would Derogate Congressional Primacy

A. It Is Well Established that Courts May Not Modify or Supplement a Detailed, Carefully Crafted Statutory Regime

All federal judges realize that the will of Congress is primary in statutory matters. However, as judges grapple with concrete cases, this realization can be overshadowed by two tendencies of thought. First, the interplay of the substance of legislation and the procedure by which legislation is enacted is “at the heart of all judging.” Second, the degree of confidence one has in the decisionmaker heavily influences how one regards the decision.

We see these tendencies in constitutional law. The more careful Congress has been in designing the substantive law, the less likely it is that a court will invalidate the statute on constitutional grounds. We see these tendencies in administrative law as well. Courts are unlikely to overturn agency action when they are satisfied that the agency thought about the problem carefully and took a “hard look at it.”

These tendencies apply as well to our topic: judicial interpretation of statutory timing rules. When Congress writes a very general statute, judges often conclude that they have freedom to “gloss” the statute by creating sensible operative rules.

However, the more legislation moves away from high generalization and abstraction, the more detailed, specific, comprehensive, and reticulated it becomes, and the less room the courts feel they have to annotate or supplement the statute. A highly developed, nuanced, interrelated set of statutory commands gives the courts confidence that Congress has done its job and convinces judges that they should not tamper with the balanced scheme Congress wrought. A carefully structured statute precludes judicial supplementation, no matter how wise or beneficial the additional procedure might seem to the Court.

Cases to this effect are legion. For example, in an ERISA case, the Supreme Court refused to create a judicial remedy on top of remedies set out in the statute itself. The Court noted that “six carefully integrated civil enforcement provisions [in the statute] provide strong evidence that Congress did not intend to authorize other remedies . . . [especially given the statute’s] interlocking, interrelated, and interdependent remedial scheme, which is in turn part of a comprehensive and reticulated statute.”

Similarly, in an employment discrimination case, the Court stated that—

[I]n a statutory scheme in which Congress carefully prescribed a series of deadlines . . . we may not simply interject an additional . . . period into the procedural scheme. We must respect the compromise embodied in the words chosen by Congress. It is not our place simply to alter the balance struck by Congress in procedural statutes by favoring one side or the other in matters of statutory construction.

When tragic circumstances of a particular case tug at the heart strings, it is well to remember the concluding words of the Court in the same case: “Even if the interests of justice might be served in this particular case by [judicial activism], in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.”

This same principle—that a carefully drawn, detailed statute does not permit judicial supplementation—appeared early, and continues to appear often, in tax cases. A partial inventory of examples would include: a 1935 case denying an injunction remedy sought by the taxpayer, the landmark 1960 Flora decision as to tax refund jurisdiction, a 1963 “collapsible corporation” Supreme Court case, 1964 and 1972 cases determining that the statutory mitigation rules preempt equitable recoupment, a 1990 Supreme Court case barring equitable recoupment, and a string of cases in the 1990s and the 2000s refusing to allow Bivens damages actions against Service agents because “Congress has created an extensive scheme providing remedies.”

The Supreme Court’s 1997 Brockamp decision is particularly important. The Court unanimously held that courts cannot toll “for nonstatutory equitable reasons,” the statutory deadlines for filing tax refund claims. The Court so held for a number of reasons, including, as relevant here, the fact that the statute “sets forth its limitations in a highly detailed technical manner,” “reiterates its limitations several times in several different ways,” and “sets forth explicit exceptions to its basic time limits, and those very specific exceptions do not include ‘equitable tolling.’”

B. The Deficiency Petition Filing Period Is a Detailed, Carefully Crafted Statutory Regime

1. Overview

When a taxpayer and the Service disagree as to how much tax is owed, the taxpayer will have the opportunity to present her case to a neutral decisionmaker. The constitutional guarantee of due process requires it. But it is well established that due process does not require a prepayment opportunity. The availability of prompt post-payment hearing—such as in a district court or a Court of Federal Claims refund case—is constitutionally sufficient. Indeed, in tax, it is the norm. For this reason, “[l]ack of access to the Tax Court does not equate with a denial of Fifth Amendment due process.” Nor does due process require that the taxpayer have more than one opportunity to present her case.

Congress often has chosen to provide tax dispute resolution procedures that go beyond the constitutional minimum. For our purposes, the following four features of congressional choice are particularly significant.

First, Congress has not deemed it appropriate to allow prepayment judicial review of Service determinations in all contexts. In the main, Tax Court deficiency jurisdiction exists only as to income taxes, wealth transfer taxes, and certain kinds of excise taxes. And, even as to these taxes, such jurisdiction is lacking in defined situations. For instance, in the case of income taxes, the Service may summarily assess and collect liabilities reported on the taxpayer’s return, additional liabilities stemming from mathematical or clerical errors on the return, amounts paid by the taxpayer, amounts resulting from tentative carryback or refund adjustments, situations in which ultimate collection of the tax appears to be in jeopardy, and other instances.

Second, Congress has conditioned Tax Court prepayment review in deficiency cases on the taxpayer’s filing a petition within a statutorily prescribed period. Filing deadlines are ubiquitous—indeed indispensable—in law generally and in tax particularly. To provide the services voters have demanded at the polls, the federal government needs a lot of revenue consistently and predictably. This “imperious need” would be thwarted were taxpayers not compelled to present their claims within defined periods. As the Supreme Court long has known:

It probably would be all but intolerable, at least Congress has regarded it as ill-advised, to have an income tax system which . . . required both the taxpayer and the Government to stand ready forever and a day to produce vouchers, prove events, establish values and recall details of all that goes into an income tax contest.

Third, the statutory deadline for filing a petition in a Tax Court deficiency case has not always been the current 90 days, and both the current rule and its predecessors have been subject to many exceptions. For nearly a century, Congress has revisited and reworked the statutory petition period, producing an intricate, carefully tailored set of integrated rules.

Fourth, in this ongoing process of design and redesign, Congress has been guided by the policies and values identified in Part IV.B above: revenue needs, efficiency of process, decisional accuracy, and fairness—fairness to all: the government, the taxpayer in the particular case, taxpayers in other cases, and the taxpaying public at large. In each particular change, one or another value has been the principal inspiration, but all of them have been a part of the pageant. Thus, the current timing requirements represent Congress’s determination of the weight that should be accorded to each value in the situation at hand.

There often must be tradeoffs between conflicting policies, and it is to Congress that the Constitution commits the authority to make these choices. Generations ago, in a case involving tax timing rules, the Supreme Court articulated that “if there are to be exceptions to the [deadlines], it is for Congress rather than the courts to create and limit them.”

The wisdom and the constitutional imperative of this allocation of authority have not changed in the years since, nor has doctrine. In a recent nontax case, the Court noted that important policies clashed in the controversy at hand, and it reaffirmed that “[i]t is not [the Supreme Court’s] role to weigh such tradeoffs. In our system of government, that is the responsibility of those chosen by the people through democratic processes.”

2. Detailed History

We have seen that the courts treat a detailed, intricate statutory scheme as a signal from Congress that judicial supplementation is inappropriate. Is the 90-day timing rule such a detailed, intricate scheme? The answer clearly is “yes.” The Supreme Court has directed that both the structure of a rule and its history bear on answering questions of this sort. The structure and history of the 90-day rule are developed below.

We speak of the “90-day rule” as shorthand, for convenience. But the full rule is far more complex, and its provenance is long and rich. In its fullness, our current deficiency petition filing period is a tapestry woven by Congress over many generations, a tapestry of many hues (the key policies and values of tax administration) and many strands (the interrelated rules). Below, this Article chronicles Congress’s choices and the strands that embody them.

Strand 1: Congress crafted the original version of the deficiency petition filing deadline in 1924 when it authorized the BTA to hear cases in which the taxpayer filed a petition (then called an “appeal”) “[w]ithin 60 days after [the Service deficiency] notice is mailed.” All four of the key values animating federal tax procedure found expression in this rule. The provision of a prepayment forum independent of the Service was intended to promote fairness to taxpayers.

Congress viewed the 60-day petition period as long enough to allow the taxpayer to evaluate the Service notice and construct a pleading challenging it, yet short enough that (1) the case could move towards resolution with reasonable dispatch, (2) potentially significant evidence would not become stale or unavailable, and (3) the government’s interest in protecting the revenue would not be unduly compromised.

Significantly, the statute provided that the date the Service notice was “mailed” was the trigger for the running of the 60-day period. Congress considered, but rejected, making the date the taxpayer receives the notice the trigger for the petition filing period. “Received” could be more fair to taxpayers because it is well established that a properly mailed notice which, without fault on the part of the taxpayer, is never received nonetheless starts the running of the petition period. However, balancing competing considerations, Congress concluded that the harms of a “received” trigger (uncertainty in factfinding, delay, and incentive for taxpayer dissembling) are greater than the harm of a “mailed” trigger (unfairness in a small percentage of the cases).

Strand 2: The current 90-day rule extends the filing period until the next business day if the 90th day falls on a Saturday, Sunday, or legal holiday in the District of Columbia. The original 1924 version was not so accommodating. For example, if the 60th day fell on a Sunday, a petition received by the BTA on the succeeding Monday would have been untimely.

Several strands were required to move the statutory rule from its original form to its current form: amendments Congress made in 1926 (Strand 2), 1934 (Strand 3), and 1945 (Strand 7). In the 1926 amendment, Congress provided some relief. It extended the petition period to Monday if the “60th day falls on a Sunday.”

Strand 3: The 1926 legislation applied only to “60th day falls on a Sunday” cases. Congress, in 1926, rejected a proposal to make a similar extension for “60th day falls on a legal holiday” cases. In 1934, however, Congress accepted a recommendation from the American Bar Association and amended the statute to provide extension in “legal holiday” situations.

Strand 4: Also in 1934, the petition period was expanded from 60 days to 90 days. Once again, Congress was motivated by more than one policy. It deemed the change fairer for taxpayers far from Washington, D.C. (and who therefore would face longer mailing times) and also more likely to reduce the number of trials because taxpayers and the Service would have more time to reach agreement.

Strand 5: World War II helped shape the Tax Court petition timing rule. In 1942, Congress extended the petition period to 150 days when the deficiency notice was addressed to a taxpayer outside the United States.

Strand 6: Also in 1942, Congress extended the filing period for those involved in the war effort outside the Americas. They were allowed 90 days from the date when they were no longer continuously outside the Americas.

Strand 7: In 1945, Congress extended the petition period when the 90th day falls on a Saturday, as it previously had done for Sunday and legal holiday situations.

Strand 8: Above, we saw changes to the deficiency petition filing period that reflected congressional solicitude for those in service in World War II. In addition, there is a provision of a more general nature that had roots in the Internal Revenue Code of 1939, carried over into the Internal Revenue Code of 1954, and is embodied in current Code section 7508. Eligible taxpayers include, among others, those in combat zones and similar areas, those hospitalized as a result of such service in such areas, and their spouses. Eligible taxpayers are entitled to postpone, for a time, performance of certain tax acts, including the filing of a Tax Court deficiency petition.

Strand 9: The BTA took the position that a petition was timely filed only if it was received by the close of business on the last day of the statutory period. If received later, the petition would be dismissed even if the taxpayer could show that the petition had been mailed in ample time to reach the BTA before expiration of the filing period.

In 1954, Congress ameliorated the harshness of this treatment. Congress created the “timely mailed is timely filed” rule, under which a petition is viewed as timely if the envelope containing it bears a U.S. postmark date within the 90-day time frame.

Strand 10: What, though, if the envelope had been lost in the mail, so that the stamped postmark is unavailable to be read? In 1958, Congress provided that the date on the registration or certification receipt issued to the taxpayer by the postal system is prima facie evidence of the mailing date.

Strand 11: Or what if the envelope were received but no postmark date was stamped on it? Again in 1958, Congress provided that, in such a case as well, the registration or certification date controls.

Strand 12: What if a federal court is unexpectedly closed on a given day because of major storm or other calamity? In 1985, the Federal Rules of Civil Procedure were amended to provide that, unless a court otherwise orders, “if the clerk’s office is inaccessible . . . on the last day for filing . . . then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday.” The Tax Court Rules give “particular weight to” the Federal Rules of Civil Procedure when there is no controlling Tax Court Rule. Moreover, Tax Court Rule 25(a), as to computation of time, was modeled on Civil Rule 6(a). Accordingly, the Tax Court follows the Civil Rule quoted above.

Strand 13: These days, shippers often choose a private delivery service over the U.S. Postal Service. In 1996, Congress created a procedure under which certain private delivery services are treated as equivalent to the Postal Service for “timely mailed is timely filed” purposes.

Strand 14: In 1997, Congress added section 7508A to the Code. Section 7508 relief is automatic if its elements are satisfied. In contrast, section 7508A conferred upon the Service discretion to postpone specified tax deadlines, including the deadline for filing a Tax Court deficiency petition. As originally enacted, the section applied with respect to taxpayers affected by federally declared disasters.

Strand 15: When a bankruptcy petition is filed, an automatic stay descends, prohibiting the debtor and creditors from taking designed kinds of actions without approval of the Bankruptcy Court. In 1998, Congress provided that the running of time for filing a Tax Court petition in a deficiency case is suspended while the taxpayer is prohibited by the automatic stay from filing the Tax Court petition, plus an additional 60 days thereafter.

Strand 16: Chapter 42 of the Code imposes a variety of excise taxes when certain tax-exempt and other organizations engage in prohibited actions. In defined situations, the Service has authority to refrain from imposing excise tax, or to abate excise tax already imposed, if the taxable event was due to reasonable cause and prompt corrective action was taken. In 1998, Congress provided that the running of the 90-day Tax Court filing period is suspended during any period the Service is allowed for making such correction.

Strand 17: The IRS Restructuring and Reform Act of 1998 (the “RRA”) also contained amendments of particular significance to our topic. As we have seen, in 1997 the Supreme Court held in Brockamp that the periods prescribed by section 6511 for filing tax refund claims is not subject to nonstatutory equitable tolling.

Brockamp prompted Congress to consider whether to amend section 6511 to allow equitable tolling. That occasion would have been the obvious opportunity to provide a general tolling rule had Congress deemed such a rule to be desirable. Congress rejected that option, however. Instead, Congress deemed tolling to be appropriate only “in case of severe disability.” Accordingly, it inserted into the statute new section 6511(h), which provided only a very limited tolling provision involving situations in which the taxpayer “is unable to manage his financial affairs by reason of a medically determinable physical or mental impairment . . . which can be expected to result in death or which . . . can be expected to last for a continuous period of not less than 12 months.”

That same legislative moment also would have been the natural time for Congress to have provided a general equitable tolling rule for Tax Court deficiency cases if Congress had deemed that to be desirable. Yet, once again, Congress chose a “rifle shot” over a “scattergun” approach. In the RRA, Congress wrote a very narrow statutory tolling provision into the 90-day rule. Congress directed the Service to include in its notices of deficiency a calculation of “the last day on which the taxpayer may file a petition with the Tax Court.”

At the same time, Congress added the following sentence to section 6213(a), the statute that sets out the 90-day petition period: “Any petition filed with the Tax Court on or before the last date specified for filing such petition by the [IRS] in the notice of deficiency shall be treated as timely filed.” For example, assume that, in a particular situation, (1) under an accurate calculation, the last day of the 90-day period is September 1; (2) the notice of deficiency incorrectly states that the last date is September 5; and (3) the taxpayer’s petition is filed on September 5. In that situation, the RRA rule would treat the petition as having been timely filed.

Both congressional committees described the reason for this limited tolling rule thusly: “The Committee believes that taxpayers should receive assistance in determining the time period within which they must file a petition . . . and that taxpayers should be able to rely on the computation of that period by the IRS.”

The legislative reports accompanying this change are significant. Both the House Ways and Means Committee report and the Senate Finance Committee report describe the “Present Law” as follows:

Taxpayers must file a petition with the Tax Court within 90 days after the deficiency notice is mailed (150 days if the person is outside the United States) (sec. 6213). If the petition is not filed within that time period, the Tax Court does not have jurisdiction to consider the petition.

Strand 18: As seen previously, section 7508A relief originally was limited to presidentially declared disasters. In 2002, Congress expanded the provision to also cover taxpayers affected by terrorist or military action.

Strand 19: As seen, section 7508A relief usually is discretionary. However, in 2019, Congress added subsection (d) to the statute. This provision provides mandatory relief in a number of situations, but the relationship between these situations and the situations otherwise covered by section 7508A is not always clear.

Strand 20: In 2021, Congress again expanded the reach of section 7508A. Congress added “a significant fire” to the events triggering possible section 7508A relief.

C. The Deficiency Petition Period Rules Are No Less Carefully Considered and Detailed than the Refund Period Rules Brockamp Held to Be Beyond Nonstatutory Equitable Tolling

1. Preliminary Considerations

Strictly speaking, equitable tolling involves suspending a time period after it has begun to run. The doctrine is used “sparingly” and only in “rare instances,” situations in which a party has been diligently pursuing its rights and “some extraordinary circumstances [often the bad acts of the other party] . . . prevented timely filing.”

In light of these definitions, the detailed history of Congress’s design of (and changes to) the 90-day rule shows that Congress already has provided limited equitable tolling. For example, the change made by Congress in 1998—extending the 90-day period when the Service notice of deficiency misleads the taxpayer into thinking the petition period is longer than it actually is—is an equitable tolling provision. Other changes described in the strands above arguably also are equitable tolling rules. Those that are not nonetheless are important because Congress chose them in preference to other mechanisms it might have crafted.

When Congress chooses limited statutory equitable tolling over general, comprehensive tolling, or when it chooses—balancing the competing considerations—to protect taxpayers by way of an alternative mechanism not involving equitable tolling, Congress’s choice should be respected by the courts.

The Supreme Court’s 2014 Lozano decision is important in this regard. In Lozano, a party sought equitable tolling of a one-year petition period under an international treaty with respect to abducted children. The Supreme Court unanimously rejected this attempt. In so doing, the Court drew heavily on the equitable tolling principles that apply to federal statutes. Thus, what the Court said about the drafters and signatories of the treaty applies as well to Congress as the creator of U.S. domestic law.

Consider four aspects of the Supreme Court’s teaching in Lozano. First, the Court held that equitable tolling did not apply there in part because the treaty was not the only remedy available to the parent seeking return of the allegedly abducted child.

Second, the drafters did not adopt an “obvious alternative” to the provision that was included in the treaty. “[T]he natural implication,” the Court stated, “is that [the drafters] did not intend” that alternative to be the operative rule. The Court added: “We cannot revisit that choice.”

Third, it is hard to imagine a situation in which the demands of justice and humanity exceed an aggrieved parent’s desire for the return of an abducted child. The Court, of course, recognized this as basic to the purpose and design of the treaty. Yet the Court also recognized the fundamental principle of interpretation that a text “does not pursue [its primary] goal at any cost.” Treaties and statutes have both direction and stopping points, the later dictated by where countervailing considerations predominate over continued pursuit of the primary objective. The drafting body’s judgment prevails in setting the stopping point.

Fourth, the parent seeking tolling argued that the treaty “leaves room for United States courts to apply their own common law doctrine of equitable tolling.” The Lozano Court pointed out, however, that—

[t]hat contention mistakes the nature of equitable tolling as this Court has applied it. We do not apply equitable tolling as a matter of some independent authority to reconsider the fairness of legislative judgments balancing the needs for relief and repose. To the contrary, we may apply equitable tolling to the [treaty] only if we determine that the treaty drafters so intended.

2. Application to Brockamp and Boechler

These principles illuminate how Brockamp and Boechler should apply to equitable tolling in the deficiency litigation context. Brockamp involved statutory timing rules for seeking tax refunds. Brockamp noted the Court’s holding in the Irwin case that there is a presumption that equitable tolling is available for statutory deadlines. Thus, Brockamp framed the question as: “Is there good reason to believe that Congress did not want the equitable tolling doctrine to apply [in the tax refund context]?”

The Brockamp Court unanimously concluded that there was, in fact, good reason to so believe because the applicable statute, section 6511, set forth the time limitations repeatedly, with unusual emphasis, “in a highly detailed technical manner,” and with an “explicit listing of exceptions” that balanced a number of competing considerations, including efficient tax administration and the government’s “strong statutory [interest in] protection against stale [claims].”

The Court did not assert that all of these considerations, or any one of them individually, must be present in order to rebut the presumption. Instead, these considerations “taken together” suggested to the Court that—

Congress decided to pay the price of occasional unfairness in individual cases (penalizing a taxpayer whose claim is unavoidably delayed) in order to maintain a more workable tax enforcement system. At the least it tells us that Congress would likely have wanted to decide explicitly whether, or just where and when, to expand the statute’s limitations periods, rather than delegate to the courts a generalized power to do so wherever a court concludes that equity so requires.

As we have seen, Boechler accepted the continued validity of Brockamp but rejected the Service’s attempt to apply it to the CDP area. However, the case for applying Brockamp to the deficiency litigation context is far stronger. Indeed, taking everything together, the case against nonstatutory equitable tolling in the deficiency context is even stronger than the case was in Brockamp’s tax refund context.

This is so for four reasons. First, one reason Boechler found the Service’s argument unpersuasive was that the statutory regime at issue in Brockamp contained six statutory exceptions while the CDP regime contains only one. On its face, the Court’s point is somewhat puzzling. If the presence of only one CDP exception suggests that Congress did not provide careful consideration and a comprehensive statutory framework, the Court’s point would have force. But an alternative hypothesis might be that Congress seriously and carefully constructed the statute and it decided that only one exception was appropriate. Were that so, the number of exceptions—one, six, or a dozen—would be irrelevant.

Nonetheless, accepting the numerosity metric Boechler offered, the case against nonstatutory equitable tolling in the deficiency context is powerful. The detailed history in Part V.B.2 supra reveals that the deficiency petition timing rule, forged and reforged by Congress in repeated statutory amendments, includes far more than six exceptions to the usual 90-day period.

Second, as shown in Part V.C.1 supra, those exceptions already contain both limited statutory equitable tolling and alternatives to equitable tolling as devices Congress chose to implement its choice as to how to balance the multiple goals of tax procedure. Given the substantial and sustained congressional attention to the deficiency petition timing requirements, it is hard to argue that Congress intended to leave room for common law supplementation. Congress could have written only a general rule, preserving space for judicial gloss. It didn’t. Congress shouldered the burden of choice itself—and repeatedly so. Or Congress could have written a liberal statutory tolling rule. Again, it didn’t. Each time it revisited the rules, Congress chose a tailored, situationally specific approach. The courts should respect congressional primacy when Congress has made these choices and eschewed on each occasion the “obvious alternative” of general, comprehensive tolling.

Third, the absence of equitable tolling—or rather, its absence beyond the extent to which Congress has written it into the statute—may be less problematic for taxpayers in the deficiency context than it was in Brockamp’s tax refund context. As seen in Part V.C.1 supra, the Lozano Court noted the relevance of the existence of an alternative remedy. In the tax refund context, there is no alternative remedy. Once the Brockamp Court denied the possibility of equitable tolling, a taxpayer who overpaid but failed timely to seek refund has no other way to get the overpayment back. In contrast, a taxpayer barred from challenging the deficiency notice on a prepayment basis in the Tax Court does have an alternative remedy: bringing a refund suit in federal district court or the Court of Federal Claims.

Fourth, Boechler remarked that the 30-day CDP filing rule “appears in a section of the Tax Code that is unusually protective of taxpayers and a scheme in which laymen, unassisted by trained lawyers often initiate the process.” Of course, many Tax Court deficiency petitions are filed by laypersons acting pro se.

However, as noted in Part V.C.1 supra, Lozano involved a context in which natural human sympathy is engaged no less than it is in pro se litigation. Yet the Lozano Court noted the treaty’s stopping point as well as its direction, reflecting the drafters’ balancing of policies. As we’ve seen, fairness to individual litigants is one major goal—but not the only goal—of tax procedure. As Brockamp acknowledged, it is the province of Congress, not judges, to weigh and balance the competing considerations.

Moreover, in the deficiency context, Congress already has taken into account the fact that many Tax Court petitions are filed pro se, and Congress prescribed the remedy it deems appropriate. In its 1998 changes to the 90-day rule, Congress directed the Service to include in its notice of deficiency a statement of the last date on which the taxpayer could file her Tax Court petition, and it suspended the running of the petition period if the date stated by the Service is beyond the actual 90th day. Congress made this change because it believed that “taxpayers should receive assistance in determining the time period within which they must file a petition.” Each taxpayer receiving a notice of deficiency gets that measure of help from the Service that Congress deemed appropriate.

VI. Conclusion

This Article has argued that the 90-day petition period in Tax Court deficiency actions should not be amenable to equitable tolling. If tolling there should be, constitutional legitimacy demands that it should be provided by Congress, not by the courts, and only to the extent that Congress chooses.

This Article has focused on one reason why nonstatutory equitable tolling should not be permitted. Congress preempts nonstatutory equitable tolling when its careful consideration produces an intricate, articulated, interrelated, and comprehensive set of governing rules. The Supreme Court has held to that effect repeatedly. In the area of tax timing rules, the Court held to that effect in Brockamp, and Boechler acknowledged the continuing vitality of Brockamp. The detailed history of the deficiency petition filing period reveals careful and sustained congressional consideration and an intricate, interrelated statutory scheme.

In 1997, the Brockamp Court unanimously refused to “gloss” the detailed statutory timing rules as to tax refunds by overlaying them with nonstatutory equitable tolling. One year later, Congress amended the statute to provide tolling in refund cases under very limited circumstances. This is precisely how our system should work. The Supreme Court applied the law as it stood, leaving it to Congress to change the law if, and to the extent that, Congress chose to do so after balancing and weighing the relevant values.

Notably, the same 1998 legislation that created limited statutory tolling in tax refund cases also created another limited statutory tolling provision for deficiency cases. Had Congress wished to create a general, full-bore tolling rule for deficiency cases, the 1998 legislation would have been the natural vehicle for doing so. But Congress chose instead a limited, targeted change, and, through the pertinent committee reports, stated its understanding that the 90-day filing deadline for Tax Court petitions is jurisdictional.

Current litigants ask—and future litigants will undoubtedly ask—the courts to modify, on common law or equitable grounds, the carefully considered and structured statutory timing requirements for deficiency cases that Congress has elaborated over nearly a century. The courts should decline invitations to do so. Whether they conclude that the deficiency petition filing period is jurisdictional or nonjurisdictional, the courts should adhere to the approach the Supreme Court took in Brockamp. They should hold that Congress, not the courts, is the legitimate actor to determine whether and when the running of that period may be tolled.