Deadlines are important, particularly in federal tax law.  Many taxpayers are aware, for example, of the significant penalties that the IRS may impose upon them for failure to timely file an income tax return or timely pay all taxes owed.  But fewer taxpayers have an understanding or appreciation for the deadline rules associated with filing a timely petition with the United States Tax Court. 

Under section 6213 of the Code, a taxpayer generally has 90 days from the date the IRS issues a notice of deficiency to file a petition with the Tax Court.  Since at least 1928, federal courts have universally concluded that section 6213 is a jurisdictional bar—in other words, if the taxpayer files late, even a day late, the Tax Court lacks the statutory authority to rule on the merits of the taxpayer’s claims.[1]  Indeed, only last month, a taxpayer discovered the harshness of this rule when the Tax Court held that it lacked jurisdiction to review his case because he had electronically filed a petition only eleven seconds after the 90-day window.[2]  Missing the 90-day deadline is more than academic:  taxpayers who do not meet the deadline must full pay the proposed tax and penalties prior to seeking alternative judicial review in the federal district courts or the U.S. Court of Federal Claims.   

More recently, taxpayers have started to challenge the status quo and have raised novel arguments to various statutory deadlines under the Code.  On April 21, 2022, the United States Supreme Court heard one such challenge in Boechler, which held that the 30-day period to file a Tax Court petition under section 6330—a provision relating to IRS collection matters—was not a jurisdictional provision.[3]  Because section 6330 was not jurisdictional, the Supreme Court further held that the taxpayers could raise the defense of equitable tolling. 

Of course, after Boechler, taxpayers speculated whether that decision could apply to other statutory deadline provisions in the Code, including section 6213.  On November 29, 2022, the Tax Court held in Hallmark Research Collective that Boechler did not disturb the long line of federal court decisions holding that section 6213 was jurisdictional in nature.[4]  However, on July 19, 2023, the Third Circuit Court of Appeals disagreed in Culp, finding that section 6213 was not a jurisdictional bar in light of Boechler.[5] 

Significantly, the Culp decision applies only to taxpayers in the Third Circuit, i.e., Delaware, New Jersey, Pennsylvania, and the Virgin Islands.  Under the Tax Court’s Golson rule, the Tax Court is not bound to apply Culp unless a taxpayer resides in these areas.  Nevertheless, taxpayers with late-filed petitions in other areas of the country should raise Culp in the event the IRS challenges the Tax Court’s jurisdiction to hear their claims under section 6213.   

[1] Organic Cannabis Found., LLC v. Comm’r, 962 F.3d 1082 (9th Cir. 2020). 

[2] Sanders v. Comm’r, 160 T.C. No. 16 (June 20, 2023). 

[3] Boechler, P.C. v. Comm’r, 142 S.Ct. 1493 (2022). 

[4] Hallmark Research Collective v. Comm’r, 159 T.C. No. 6 (Nov. 29, 2022). 

[5] Culp v. Comm’r, 2023 US App. Lexis 18287 (3d Cir. July 19, 2023). 

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