Attorney-at-Law

FOR WHOM THE EQUITABLE TOLLS – PART DEUX

In Uncategorized on 12/13/2022 at 23:14

Until the hardlaboring Tax Court clericus unloads an opinion or order with a novel approach, I’m thrown back on the latest silt-stir: equitable tolling. As set forth in my blogpost “For Whom the Equitable Tolls,” 4/10/20, “‘It is hornbook law that limitations periods are subject to equitable tolling.’”

Except in Tax Court they aren’t, despite Supreme Court learning from this past April, and ex-Ch J Maurice B (“Mighty Mo”) Foley’s efforts along those lines. Ch J Kathleen (“TBS = The Big Shillelagh”) Kerrigan holds the line resolutely.

Sharif M. Giurgius, Docket No. 11263-20S, filed 12/13/22, is eight days late, taking in the suspension of the SOL caused by COVID; see my blogpost “Le Quinzième Juillet,” 4/10/20, wherein I explicated Treasury’s attempt to sidestep the supposedly iron gates of Section 6213. Interesting that the Supremes never mentioned that suspension in Boechler. How Treasury had the power to suspend a supposedly explicit act of Congress, upon which they were relying in Boechler, is nowhere explained.

Howbeit, “…in narrowly defined circumstances, scenarios involving disasters, related conditions, and concomitant closures can extend the deadline. As relevant here, the COVID-19 pandemic led to an extension of time for tax-related deadlines, including those for petitions to the Court. Specifically, Guralnik v. Commissioner, 146 T.C. 320 (2016), and IRS Notice 2020-23, 2020-18 I.R.B. 742 (April 27, 2020), in combination, extended the deadline for filing petitions due between March 19, 2020,  and July 15, 2020, to July 15, 2020.” Order, at pp. 1-2.

So Section 6213’s 90-150 day cut-offs aren’t ironclad. Maybe they can be tolled.

But Ch J TBS Kerrigan is adamant, notwithstanding Sharif’s claim that IRS is jerking him around.

“Hence, while the Court is sympathetic to petitioner’s situation and understands the unintentional character of the inadvertence here, as well as the challenges of the circumstances faced and the good faith efforts made, the fundamental nature of the filing deadline precludes the case from going forward. As a Court of limited jurisdiction, the Court is unable to offer any remedy or assistance when a petition is filed late. Rather, the Court is barred from considering in any way petitioner’s case or the correctness of petitioner’s claims. Unfortunately, governing law recognizes no reasonable cause or other applicable exception to the statutory deadline, and the allegation that the petition was sent eight days late remains unrebutted.” Order, at pp. 4-5.

Taishoff says “fundamental nature of the filing deadline”? The Supremes didn’t think so; DC Cir didn’t think so; and Treasury didn’t think so in April 2020, although they’ve changed their tune since.

I’m waiting for the LITCs, the pro bonos, or the calendar call commandos to take one of these quick-kick tosses up on appeal.

Lest I be misunderstood, I am not advocating for a completely fluid cut-off for petitions. I pointed out in my blogpost “Ya Can’t Make This Stuff Up – Part Deux,” 4/29/22, that an open-ended cut-off would result in chaos. But equity considers the rights of both parties, and can shut down gameplayers, wits, wags, and wiseacres. Honest petitioners with legitimate grievances should be protected when they make finger-fehler that do not prejudice proper collection of the revenue.

And Treasury has shown us we don’t need Congress to set this right.

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