The general jubilation that followed the Supremes’ “endeavor to bring some discipline to use of the jurisdictional label” in Boechler, P. C., was rather like the starting gun in a wide-open footrace. The scramble succeeded the jubilation, many figuring that if they were a couple days late (hi, Judge Holmes), just claim Boechler and all would be well.

Not quite. Just ask John Roberts Coggs, Docket No. 13772-21L, filed 6/27/23.

JR was twelve (count ’em, twelve) days late with his petition from a NOD. IRS so alleges in its answer, and moved for a Rule 37(c) undenied-is-deemed-admitted. JR stands mute.

Judge Nega: “The section 6330(d)(1) 30-day filing deadline is not jurisdictional, which means this Court has authority to consider late-filed petitions, and the Court may accept a tardy filing by applying the doctrine of equitable tolling. Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1496 (2022). A litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes that he or she has been pursuing his or her rights diligently and that some extraordinary circumstance prevented him or her from timely filing. Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255–57 (2016); Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020)(en banc). Petitioner has not asserted that he satisfies this test, so the Court may not accept his Petition by equitable tolling.” Order, at p. 2. (Footnote omitted).

Takeaway- Tell your story. If you’ve played straight so far, and you’re late only a couple days, maybe “extraordinary” needn’t be so extraordinary.