United States: Third Circuit holds Tax Court's 90-day petition deadline is not jurisdictional

Tax news and developments August 2023

In brief

In Culp v. Commissioner, the Third Circuit recently held that section 6213(a)'s 90-day period for filing a Tax Court petition for redetermination of a deficiency is not jurisdictional and is subject to equitable tolling. Relaxing strict compliance with the often draconian filing rule would allow taxpayers to have their day in court even if they fail to meet the 90-day deadline. Under the Golsen rule, however, the holding in Culp is currently binding on only those Tax Court cases appealable to the Third Circuit. 


Because of the Supreme Court’s similar 2022 holding in Boechler, P.C. v. Commissioner regarding Tax Court petitions filed under section 6330(d)(1), other circuits are likely to follow suit, expanding access to the court and consistent with Congress’s intent.

The facts of the case and proceedings in Tax Court

The appellants are husband and wife. In 2015, each received a little less than USD 9,000 from a lawsuit, which the couple claimed to have reported as prizes or awards on their 2015 income-tax returns. The IRS determined that the couple failed to report those awards and in 2017 issued a notice of deficiency reflecting an underpayment of tax and a penalty. The notice of deficiency stated that Culps had 90 days to petition the Tax Court to re-determine the amounts reflected on the notice. The Culps did not file a petition within that 90-day period, prescribed by section 6213(a), which expired in May 2018.

On 22 April 2021, the Culps petitioned the Tax Court to re-determine the 2015 deficiency. In September 2021, the IRS filed a motion to dismiss for lack of jurisdiction. Without citing any law, the Commissioner argued that the Tax Court lacked jurisdiction over the case because it was filed outside the 90-day period prescribed by section 6213(a). Section 6213(a) provides:

Within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.

The Commissioner's motion implicitly argued section 6213(a) 's deadline was jurisdictional, which was consistent with well-established Tax Court precedent at the time, such as Monge v. Commissioner, 93 T.C. 4 (1989), and Pietanza v. Commissioner, 92 T.C. 41 (1989). Special Trial Judge Choi granted the Commissioner's motion and dismissed the case in February 2022. The Culps timely appealed the dismissal to the Third Circuit.

The Third Circuit's opinion

As circuit courts often do when they review Tax Court decisions, the unanimous panel of Judges Ambro, Schwartz, and Bibas analyzed section 6213(a) 's time limitation with fresh eyes and reversed and remanded. The Culps advanced two arguments on appeal: that the IRS never mailed the notice of deficiency and that section 6213(a) 's deadline is not jurisdictional and is subject to equitable tolling. Writing for the court, Judge Ambro quickly dispensed with the Culps' first argument—the Commissioner proffered a US Postal Service Form 3877 that showed the IRS had sent the notice.

Judge Ambro framed the Culps' second argument as whether "§ 6213(a) 's 90-day requirement is jurisdictional or . . . a claims-processing rule." Judge Ambro began his analysis by first citing Boechler to explain what was at stake. In the context of statutes with timing requirements, such as section 6213(a) 's 90- or 150-day deadline, if those statutes are jurisdictional, then absent strict compliance with the filing deadline, a court lacks power to decide the merits of the case. Henderson v. Shinseki, 562 U.S. 428, 436-38 (2011). Deeming a statute jurisdictional is drastic given that its strict compliance can foreclose parties from having their day in court. By contrast, a claims processing rule "promote[s] the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Id. Failure to strictly comply with a claims processing rule does not deprive the court of jurisdiction if the rule is subject to equitable tolling and the party proves that it satisfies the test for equitable tolling. To avail itself of equitable tolling, a party must prove "(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Pace v. DiGuglielmo, 544 U.S. 408 (2005). In short, if section 6213(a) 's 90-day deadline were jurisdictional, or non-jurisdictional but not subject to equitable tolling, the Culps could never see their day in Tax Court.

There is a presumption against procedural requirements' being jurisdictional. Drawing from Boechler, Judge Ambro wrote that the Third Circuit would treat section 6213(a) as jurisdictional "only if Congress' clearly states' that it is . . . ." Boechler held that section 6330(d)(1) was not jurisdictional. That section reads "[t]he person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction for such matter)." In Boechler, the Supreme Court reasoned that even though section 6330(d)(1) explicitly refers to the Tax Court's jurisdiction, the majority of section 6330(d)(1) refers to what the taxpayer must do (not what the Tax Court may do). Moreover, when compared to other Code sections passed contemporaneously, section 6330(d)(1) has no explicit grant of jurisdiction. Turning to section 6213(a)'s 90-day deadline, the Third Circuit observed that there was no use of the word "jurisdiction" in reference to that filing requirement. By contrast, other portions of section 6213(a) refer explicitly to the Tax Court's lack of "jurisdiction to enjoin any action or proceeding," meaning that Congress had demonstrated its capacity to limit the Tax Court's jurisdiction. Judge Ambro dismissed the Commissioner's arguments that section 6213(a) 's filing deadline was jurisdictional because it had historically been treated as such (as in the unpublished Allen v. Commissioner, 22-12537 (11th Cir. Dec. 21, 2022), which was issued in late 2022), and held that section 6213(a)'s filing deadline was not jurisdictional.

The court then addressed whether the 90-day deadline is subject to equitable tolling, starting from Boechler's premise that "nonjurisdictional periods of limitation are presumptively subject to equitable tolling." Given that presumption, the inquiry was whether there is "good reason to believe that Congress did not want the equitable tolling doctrine to apply." The Supreme Court has held that a statute that sets "forth its time limitations in unusually emphatic form" and in a "highly detailed technical manner" shows that Congress did not intend for equitable tolling to apply. See United States v. Brockamp, 519 U.S. 347, 350 (1997). The Third Circuit held that section 6213(a) was subject to equitable tolling, in spite of the equitable exceptions to the 90-day deadline, as provided by section 6213(e).

Although Judge Ambro's analysis was primarily rooted in statutory construction (noting that there were only a few equitable exceptions in section 6213(e)), the holding was also supported by functional or normative considerations about taxpayers' access to the Tax Court. Culp expressed two main concerns about rejecting equitable tolling: the 90-day deadline is very short, and many Tax Court petitioners file pro se. Without equitable tolling, it would be very easy for an unrepresented taxpayer to unintentionally forego any pre-payment relief. In a footnote, Judge Ambro noted that about 600 petitions per year are dismissed as untimely, which he suggested would cause minimal burden for the IRS and the Tax Court while providing many people with access to the court. The Third Circuit reversed the Tax Court's decision and remanded to determine whether the Culps satisfied the test for equitable tolling. 

Conclusions and takeaways

Culp is an exciting taxpayer victory, which may extend beyond the Third Circuit and beyond section 6213(a). Though other Circuits have commented on whether section 6213(a) 's filing deadline is jurisdictional, Courts of Appeals confronting the question of jurisdictionality in the future may look to Culp and adopt the same or similar holding, especially in light of the Supreme Court's decision in Boechler. Further, in the same way Culp translated Boechler's analysis of section 6330(d)(1) to section 6213(a), taxpayers should monitor whether the holdings in Boechler and Culp are extended to other Code sections.

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