I find it hard to believe that all y’all were hanging, breathless, on the fate of equitable tolling in a Section 7436 employee status case. True, I did blog the earlier iteration of Belagio Fine Jewelry Inc., 164 T. C. 7, filed 4/15/25, last June; see my blogpost “Is It or Isn’t It?” 6/25/24.

It’s the usual day-late, dollar-short non-blessed PDS getting the petition to the Glasshouse on Day 91.

Judge Tag Greaves said last year that  the 90-day rule was a non-jurisdictional claim-processing rule, but left equitable tolling for another day.

The headline is the answer. IRS loses.

“Specifically, as to the 90-day deadline, section 7436(b)(2) provides: If the Secretary sends by certified or registered mail notice to the petitioner of a determination by the Secretary described in subsection (a), no proceeding may be initiated under this section with respect to such determination unless the pleading is filed before the 91st day after the date of such mailing.” 164 T. C. 7, at p. 5.

Jurisdiction and equitable tolling are two different matters. A court may have jurisdiction as a matter of law, but equitable tolling, though presumed, doesn’t automatically follow. A statute is not a suggestion to be tinkered with.

“As for the deadline in section 7436(b)(2), we see nothing in the statute’s text to rebut the presumption that equitable tolling applies. Section 7436 does not expressly prohibit equitable tolling. Nor does the wording strike us as ‘unusually emphatic,’ ‘highly detailed,’ or ‘technical.’ Although section 7436 uses emphatic wording—’no proceeding may be initiated’—it does not strike us as unusually emphatic. It seems no more emphatic than the wording of the Federal Tort Claims Act, 28 U.S.C. § 2401(b), which provides that a claim ‘shall be forever barred’ for failure to comply with the 6-month deadline that the Supreme Court held did not preclude equitable tolling.” 164 T. C. 7, at p. 7 (Citations omitted). (Emphasis by the Court).

Finally, don’t sweat the small stuff. “The number of petitions under section 7436 is even dwarfed by the number of collection due process cases, representing 5.06% of the cases filed with the Court. The increased administrative burden related to these collection due process cases was insufficient to rebut the presumption in favor of equitable tolling in Boechler, P.C. v. Commissioner, 142 S. Ct. at 1501.” 164 T. C. 7, at p. 9. (Citation omitted).

Two full-dress T. C.s for a tiny silt-stir.