Second Circuit Reverses Tax Court, Holds Petition Deadline Is Nonjurisdictional

(Parker Tax Publishing September 2025)

The Second Circuit reversed the Tax Court and held that the 90-day deadline for filing a petition with the Tax Court in Code Sec. 6213(a) is a nonjurisdictional claim-processing rule because the language of the statute does not clearly speak in jurisdictional terms. The court also held that the deadline is subject to equitable tolling and remanded to the Tax Court to determine whether the taxpayers were entitled to equitable tolling. Buller v. Comm'r, 2025 PTC 278 (2d Cir. 2025).

Background

On August 22, 2022, the IRS sent a notice of deficiency to Mark Buller and Sarah Beatty (the taxpayers) regarding their 2018 income-tax returns. Under Code Sec. 6213(a), a petition to the United States Tax Court challenging a notice of deficiency must be filed within 90 days from the date the notice was issued. As it turned out, the taxpayers' counsel missed that deadline and filed the petition nine days late.

On January 27, 2023, the IRS filed a motion in the Tax Court to dismiss the petition for lack of jurisdiction. The taxpayers opposed that motion, arguing that Code Sec. 6213(a) is nonjurisdictional and subject to equitable tolling. The Tax Court found that the IRS properly mailed the notice of deficiency to the taxpayers and that the taxpayers failed to file their petition by the deadline. The Tax Court therefore concluded that it lacked jurisdiction and dismissed the taxpayers' case. The taxpayers appealed to the Second Circuit.

The Second Circuit has long described Code Sec. 6213(a) as jurisdictional in nature. However, in recent years, the Supreme Court has sought (for example, in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006)) to "bring some discipline" to the use of the word "jurisdiction." In Boechler, P.C. v. Comm'r, 2022 PTC 112 (S. Ct. 2022), the Supreme Court noted that imprecision in the determination of whether a statute is jurisdictional can have significant consequences because jurisdictional provisions cannot be waived or forfeited and do not allow for equitable exceptions. Thus, the question for the Second Circuit to decide was whether its cases that described the filing deadline in Code Sec. 6213(a) - but offered no explanation for that conclusion - remained good law after Arbaugh and its progeny.

In U.S. v. Wong, 575 U.S. 402 (2015), the Supreme Court explained that "the government must clear a high bar to establish that a [procedural rule] is jurisdictional." The Court held that, while Congress does not need to "incant magic words," traditional tools of statutory construction must "plainly show that Congress imbued a procedural bar with jurisdictional consequences." In other words, the jurisdictional nature of the procedural requirement must be "clear" rather than merely a "plausible" or even or "better" reading of the statute. The Court observed in Wong that most time bars are nonjurisdictional claim-processing rules that are intended to promote the orderly progress of litigation and do not deprive a court of its authority to hear a case.

The IRS acknowledged that the text of Code Sec. 6213(a) speaks to jurisdiction "implicitly" at best. But the IRS pointed to a later sentence in the statute that states: "The Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for a redetermination of the deficiency has been filed an then only in respect of the deficiency that is the subject of such petition." The IRS also emphasized that before 2023, every federal appellate court to reach the question had held that the Code Sec. 6213(a) deadline is jurisdictional. Finally, the IRS contended that treating Code Sec. 6213(a) as nonjurisdictional cannot be reconciled with Code Sec. 7459(d), which states that "a decision of the Tax Court dismissing the proceeding shall be considered as its decision that the deficiency is the amount determined by [the IRS] ... unless the dismissal is for lack of jurisdiction." The IRS reasoned that treating Code Sec. 6213(a) as nonjurisdictional would harm taxpayers who file late petitions because a nonjurisdictional dismissal would lock in the deficiency amount for such taxpayers.

Analysis

The Second Circuit held that Code Sec. 6213(a) is "quite clearly" a nonjurisdictional, claim-processing rule because Congress has not clearly imbued the 90-day filing deadline with jurisdictional consequences. The court noted that the language used in Code Sec. 6213(a) simply states that a taxpayer "may" file a petition. The court observed that in Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (2013), the Supreme Court held that similarly permissive statutory language does not speak in jurisdictional terms. The Second Circuit also noted that Code Sec. 6213(a) is directed at the taxpayer, rather than the court, which indicates that the filing deadline does not speak to the Tax Court's authority but rather to the taxpayer's procedural obligations.

Additionally, the Second Circuit found that there is no "clear tie" between the Code's jurisdictional provisions and the Code Sec. 6213(a) filing deadline. The court noted that the word "jurisdiction" does not even appear in the relevant sentence of Code Sec. 6213(a). The court also found that, unlike other Code provisions such as Code Sec. 6015(e)(1)(A), which expressly conditions the Tax Court's jurisdiction on the timely filing of a petition, the filing deadline in Code Sec. 6213(a) contains no express link to the Tax Court's jurisdiction.

The Second Circuit found all of the IRS's arguments unavailing. The court found that the later sentence in Code Sec. 6213(a) that conditions the Tax Court's jurisdiction on the timely filing of a petition for taxpayers seeking injunctive relief does not make the 90-day filing deadline jurisdictional. In fact, the court noted that in Boechler, the Supreme Court rejected an analogous argument. The Second Circuit reasoned that if anything, the clear statement of jurisdiction with respect to injunctive relief highlights the lack of such clarity earlier in the statutory provision. The court found that, while a requirement may be treated as jurisdictional when a long line of Supreme Court decisions left undisturbed by Congress attached a jurisdictional label to statute, no such link of Supreme Court decisions exist here and a handful of circuit court opinions containing only fleeting references to jurisdiction could not stand in for a ruling of the Supreme Court. Finally, the court found that apparent contradiction between Code Sec. 6213(a) and Code Sec. 7459(d) did not change the result of the court's analysis. In Culp v. Comm'r, 2023 PTC 198 (3d Cir. 2023), the Third Circuit addressed this very argument and concluded that it would only arise where a taxpayer files a late petition, the Tax Court dismisses the petition, and the taxpayer then pays the disputed deficiency, files for a refund, gets denied, and then sues in federal court challenging the denial.. The Third Circuit viewed this as a "theoretical possibility" that is "seldom, if ever, to occur."

Next, the court held that the 90-day deadline in Code Sec. 6213(a) is subject to equitable tolling. Under Boechler, nonjurisdictional limitations periods are presumptively subject to equitable tolling unless the statute expressly prohibits such tolling or the deadline is written "emphatic form" or with 'detailed and technical language." The court found that none of these exceptions applied to Code Sec. 6213(a) and therefore remanded to the Tax Court decide whether the taxpayers were entitled to equitable tolling.

For a discussion of filing a petition with the Tax Court, see Parker Tax ¶263,510.

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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