“Bringing Some Discipline”

Boechler, P.C., 142 S. Ct. 1493 (2022), you’ll remember, grafted equitable tolling onto CDP petitions. Now Hallmark Research Collective, 159 T. C. 6, filed 11/29/22, whose motion to vacate the one-day-late based toss of their petition from a SNOD then-Ch J Maurice B (“Mighty Mo”) Foley bucked over to Judge David Gustafson, get their 57 (count ’em, 57) page response.

And it’s a beauty.

The Supremes said equitable tolling was non-jurisdictional in Section 6330 cases, as there was no long line of settled law on CDP petitions. Quite right, says Judge Gustafson; Congress first added CDP petitions to Tax Court jurisprudence in 1998; only 24 (count ’em, 24) years ago. By Tax Court standards, that’s last week.

But the petitioning a SNOD goes back to 1924. For a blow-by-blow enumeration, see 159 T. C. 6, at pp.43-57. Judges Gustafson catalogues every amendment and enactment of Section 6213 and its ancestors. Nowhere was it ever suggested that the 90-day cutoff was anything but jurisdictional.

Section 7459(d) gets a play. Barring Tax Court from entering decision in the amount sought by IRS when a petition is tossed for want of jurisdiction prevents both an IRS walkover for one day late petition, and a petitioner from withdrawing a timely petition, thus preventing Tax Court from entering decision in the amount sought.

The Hallmarks try claiming that Section 6214, and not Section 6213 confers jurisdiction. Judge Gustafson says no,. all Section 6214 does is prevent a multiplicity of proceedings, by letting IRS assert a greater deficiency than stated in the SNOD, rather than serving a second SNOD.

You have to read this opinion. If you want someone to dam the silt, buck the case over to Judge David Gustafson.