Second Circuit: Sec. 6213(a) is nonjurisdictional; tolling applies

The Second Circuit reversed the Tax Court and held that the Sec. 6213(a) deadline for filing a petition with the Tax Court in response to a deficiency notice is nonjurisdictional and that equitable tolling applies to the deadline.

Background

In August 2022, the IRS sent a notice of deficiency to Mark Buller and Sarah Beatty (the Bullers) regarding their 2018 income tax returns. Under Sec. 6213(a), the couple had 90 days from the date the notice of deficiency was issued to file a petition with the Tax Court challenging it. The Bullers’ attorney filed a petition for the couple nine days late. Consequently, the IRS filed a motion in Tax Court to dismiss the petition for lack of jurisdiction.

The Bullers opposed the motion, arguing that the deadline in Sec. 6213(a) is nonjurisdictional and subject to equitable tolling. The Tax Court found that the IRS had properly mailed the notice to the Bullers and that they had failed to file their petition on time. Thus, the Tax Court concluded it lacked jurisdiction and dismissed the Bullers’ case (Buller, T.C. No. 25011–22, order of dismissal (3/8/24)). The Bullers appealed the Tax Court’s decision to the Second Circuit.

The Second Circuit’s decision

The Second Circuit held that Sec. 6213(a) is a nonjurisdictional claim–processing rule and subject to equitable tolling. The court accordingly reversed the Tax Court’s decision and remanded the case for consideration of whether the Bullers were entitled to equitable tolling.

Is Sec. 6213(a) jurisdictional?

The Second Circuit explained that it has long held Sec. 6213(a) is jurisdictional in nature, citing a string of cases going back to 1956. However, the court noted that the Supreme Court has recently sought to “bring some discipline” to the use of the word “jurisdiction” because judicial opinions have often stated that those courts were dismissing cases for lack of jurisdiction without explicitly considering whether the procedural rule actually applied (Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011); see also Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006)).

In the Second Circuit’s view, the question before it was whether its cases that described the filing deadline in Sec. 6213(a) as jurisdictional — but offered no explanation for that conclusion — remained good law after Arbaugh and the cases that followed it. In general, the court explained, a panel of the Second Circuit is bound by the decisions of prior panels of the court until they are overruled by either a panel of all the judges of the Second Circuit or the Supreme Court.

The Second Circuit noted that a narrow exception to this rule applies, however, where an intervening Supreme Court decision casts doubt on the circuit’s controlling precedent. Further, the Supreme Court has also held that a prior decision that simply states that the court is dismissing a case for lack of jurisdiction without explanation should have no precedential effect (Wilkins, 598 U.S. 152, 160 (2023)). Therefore, the Second Circuit determined that it was required to decide “with fresh eyes” whether the Sec. 6213(a) filing deadline limits the Tax Court’s jurisdiction.

The Supreme Court has explained that the bar to establish that a procedural rule is jurisdictional is high(Wong, 575 U.S. 402, 409 (2015)). However, while Congress does not need to “incant magic words” in the statute, “traditional tools of statutory construction must plainly show that Congress imbued a procedural bar with jurisdictional consequences” (id.at410). The Supreme Court further observed in Wong that “most time bars are nonjurisdictional” claim–processing rules that “seek to promote the orderly progress of litigation, but do not deprive a court of authority to hear a case” (id.).

With these principles in mind, the Second Circuit held that because Congress had not clearly imbued the Sec. 6213(a) filing deadline with jurisdictional consequences, it is a nonjurisdictional, claim–processing rule. The Second Circuit determined that Sec. 6213(a) speaks only to a claim’s timeliness, not to a court’s power, which the Supreme Court stated in Wong is “mundane statute–of–limitations language” (id.). Also, the Second Circuit noted that Sec. 6213(a) simply states that “the taxpayer may file a petition” (emphasis added), and the Supreme Court has held that similarly permissive language “does not speak in jurisdictional terms” (Sebelius v. Auburn Regional Medical Center, 568 U.S. 145, 154 (2013)). The fact that Sec. 6213(a) is directed at the taxpayer rather than the court also indicated to the Second Circuit that the filing deadline did not speak to the jurisdiction of the court but to the taxpayer’s procedural obligations.

Additionally, the Second Circuit found that there is not a “clear tie” between the Code’s jurisdictional provisions and Sec. 6213(a)’s filing deadline. As the court stated, “the word ‘jurisdiction’ does not even appear in the relevant sentence of [Sec.] 6213(a).” Moreover, unlike other provisions of the Code that expressly condition the Tax Court’s jurisdiction on the timely filing of a petition, Sec. 6213(a)’s filing deadline contains no express link to the Tax Court’s jurisdiction. The court pointed to Sec. 6015(e)(1)(A), which deals with the filing of a Tax Court petition for relief for joint–and–several liability, as an example of a provision that specifically uses the term “jurisdiction” and makes such a link.

Is Sec. 6213(a) subject to equitable tolling?

Having concluded that Sec. 6213(a) is a nonjurisdictional claim–processing rule, the Second Circuit then addressed whether it is subject to equitable tolling. The court observed that the Supreme Court stated in Boechler, P.C., 596 U.S. 199, 208–09 (2022), that “[e]quitable tolling is a traditional feature of American jurisprudence and a background principle against which Congress drafts limitations periods.” Therefore, the Supreme Court found that nonjurisdictional limitation periods are presumptively subject to equitable tolling and held in Boechler that the deadline for filing a petition for review of a Collection Due Process determination in Sec. 6330(d)(1) was subject to it.

The Second Circuit determined that Sec. 6213(a) was also subject to equitable tolling, finding that the rationale underlying the Boechler decision regarding Sec. 6330(d)(1) applied with equal force to Sec. 6213(a). The court noted that like Sec. 6330(d)(1), Sec. 6213(a) does not expressly prohibit equitable tolling, and it has a short time period that is directed at the taxpayer, not at the court. Similarly, Sec. 6213(a)’s deadline falls in a part of the Code that is unusually protective of taxpayers and is a process where taxpayers, unaided by trained lawyers, often initiate the process.

The Second Circuit also determined that Sec. 6213(a)’s deadline is different from the Sec. 6511 deadline for claiming a credit or refund of an overpayment, which the Supreme Court held was not subject to equitable tolling in Brockamp, 519 U.S. 347 (1997). The Supreme Court found in Brockamp that Sec. 6511 “sets forth its time limitations in unusually emphatic form” and “in a highly detailed technical manner, that, linguistically speaking, cannot easily be read as containing implicit exceptions” (id. at 350). The Supreme Court also stated that Sec. 6511 “reiterates its limitations several times in several different ways” and sets forth six “explicit exceptions to its basic time limits” (id. at 351). The Second Circuit found that, unlike Sec. 6511, Sec. 6213(a) contains only three exceptions, which are not set out explicitly or in a highly technical manner and do not contain substantive limitations on the amount of recovery.

The Second Circuit further noted that Sec. 6213(a)’s deadline serves a “far more limited and ancillary role” than the Sec. 6511 deadline at issue in Brockamp. The IRS admitted in Boechler that only 1 million taxpayers received a deficiency notice and fewer than 21,000 deficiency petitions were filed in 2023, which the court said “pales in comparison” with the over 90 million tax refunds that were implicated in Brockamp. Therefore, the Second Circuit reasoned that allowing equitable tolling to the relatively small number of Tax Court petitions to which Sec. 6213(a) would apply would not appreciably add to the uncertainty already present in the filing process or “encourage more taxpayers to file untimely petitions in the (longshot) hopes of bringing a successful equitable tolling argument” (quoting Culp, 75 F.4th 196, 204 (3d Cir. 2023)).

Reflections

Less than two weeks after the Second Circuit decided the Bullers’ case, the Sixth Circuit also held that the deadline in Sec. 6213(a) was nonjurisdictional and subject to equitable tolling in Oquendo, No. 24–1205 (6th Cir. 8/25/25). The Third Circuit had held likewise in Culp in 2023.

However, a circuit split exists, with the Seventh Circuit in Tilden, 846 F.3d 882 (7th Cir. 2017), and the Ninth Circuit in Organic Cannabis Foundation, LLC, 962 F.3d 1082 (9th Cir. 2020), both having held that the Sec. 6213(a) deadline is jurisdictional. However, as the Sixth Circuit noted in Oquendo, the opinions in those cases were issued prior to the Supreme Court’s opinion in Boechler. Referring to Tilden and Organic Cannabis Foundation, the Sixth Circuit stated in Oquendo that “past cases interpreting [Sec.] 6213(a)’s petition–filing deadline as jurisdictional are better viewed as vestiges of a bygone era.”

Buller, No. 24–1557 (2d Cir. 8/14/25)

Contributor

James A. Beavers, CPA, CGMA, J.D., LL.M., is The Tax Adviser’s tax technical content manager. For more information about this column, contact thetaxadviser@aicpa.org.