It takes Judge Goeke 31 (count ’em, 31) pages to decide that Organic Cannabis Foundation, LLC,, 161 T. C. 4, filed  9/27/23, is entitled to equitable tolling on its Letter 12153 for Year Three of the Section 6320 NFTLs it got.

For the backstory, see my blogpost “Roll On, Silt, Roll On,” 11/14/22.

Section 6320(a)(3)(B) doesn’t bar Appeals from hearing a late-filed Letter 12153 request for a CDP. Legislative history, the intent, purpose, and language of the statute are gone over in depth, and Boechler, P. C., gets a real workout.

But at close of play, “Taxpayers must pursue a CDP hearing before they can seek judicial review. A categorical prohibition of equitable tolling of the filing deadline for Appeals’ review of collection actions would be contrary to Congressional intent. It would mean that we would protect a taxpayer’s ability to seek judicial review through equitable tolling of the section 6330(d) deadline for filing a petition while denying taxpayers the possibility of equitable tolling to obtain Appeals’ review and a determination for this Court to review. Although the Supreme Court did not address the 30-day period for requesting a CDP hearing in Boechler, we will not apply a stricter standard to the administrative filing deadline. Congress allowed for equitable tolling of the judicial filing deadline in section 6330(d)(1). Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500–01. It would not have intended to place a separate procedural obstacle to access this Court by precluding tolling of the 30-day period for requesting a CDP hearing.” 161 T. C. 4, at p. 30.

Judges Kerrigan, Gale, Paris, Morrison, Nega, Pugh, Ashford, Urda, Copeland, Toro, Greaves, Marshall, and Weiler, are OK with this.

Judge Courtney D (“CD”) Jones agrees that Appeals can hold the CDP on a late Letter 12153 if equitable considerations so dictate, but dissents as to Reg. Section § 301.6320-1. The majority says the Reg doesn’t bar equitable tolling of the thirty-day period to petition from a NOD. Judge CD Jones says the statute is ambiguous, so she wants a Chevron part two analysis whether the Reg falls foul of the statute. The majority breezes past the Reg.

Judges Foley and Buch agree.

Time for a trip to 9 Cir, and beyond?