I was oversoon indeed back in April, 2022, when I predicted a deluge of Tax Court petitions in the wake of Boechler, P. C. In my blogpost “Ya Can’t Make This Stuff Up – Part Deux,” 4/29/22, I foresaw Boechler inspiring “petitioners who got tossed two, three, or even ten years ago, come running back, claiming they were wrongfully tossed, and demanding return of property seized and sold a decade ago, and demanding trillions in damages.”

It didn’t happen. And Judge Tamara Ashford tells us why, in Mark Leonard & Dawn Leonard, Docket No. 26819-22L, filed 2/16/24.

Mark & Dawn were a couple weeks late (hi, Judge Holmes) with the petition from the NOD affirming IRS’ collection action. Although the envelope containing their petition was postmarked only a day past the 30-day deadline, it was addressed to Appeals, not Tax Court. Appeals forwarded the petition to The Glasshouse.

IRS made a Rule 37(c) deemed-admitted motion confirming those facts, to which Mark & Dawn did not respond. So IRS moved for a Rule 120(a) judgment-on the -pleadings. Again, no response.

But was an equitable tolling argument available?

“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 circumstances prevented him or her from timely filing. Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255–77 (2016). Petitioners have not asserted that they satisfy this test, so the Court may not accept their Petition by equitable tolling.” Order, at p. 2.

Time for a Rule 161 motion to reconsider?

Self-representeds like Mark & Dawn may not be aware of Boechler, hence the non-deluge.