It had to happen, and of course my colleague Lyle (“Full-Court”) Press, Esq., is onboard with the defense. We get four (count ’em, four) opinions for the price of one in this exagmination round the factification of a statute repealed effective as of seven (count ’em, seven) years ago.

At least part of the Ornstein-Schuler crew are at bat in North Wall Holdings, LLC, Schuler Investments, LLC, A Partner Other Than the Tax Matters Partner, 165 T. C. 9, filed 10/21/25. Pitching for the USTC is Judge Ronald L. (“Ingenuity”) Buch, joined by JJ. Kerrigan, Nega, Pugh, Ashford, Copeland, Greaves, Way, Arbeit, Guider, and Jenkins in full: Ch J Urda, and JJ Jones, Marshall and Judge Emin (“Eminent”) Toro join as to Part VI (spoiler alert: Part VI is why Congress didn’t want equitable tolling in TEFRA latecomer cases). Judge Emin (“Eminent”) Toro does concur as to result and writes a concurrence in which Ch J. Urda and Judge Pugh join. Next up, Judge Weiler writes to concur in result. Judge Alina I. (“AIM”) Marshall concurs in part and dissents in part, while Judges Landy and Fung wisely concur in result and stand mute.

Clear? Thought not.

Anyway, Schuler, a notice partner, comes 18 (count ’em, 18) days late to the 60-day TMP afterparty, apparently tipped off to the FPAA by the TMP in time to file timely. IRS moves to toss for want of jurisdiction, Schuler responding that the 150-day cutoff to petition a FPAA is nonjurisdictional (while not claiming equitable tolling, thus ducking the extraordinary blockage and prompt follow-up issues, which ultimately costs them).

Judge Buch does a historical walk through TEFRA’s attempt to bring all partnership issues into a single case. Neither TMP nor a notice partner nor 5-percenter can jump the queue, but an early notice partner petition gets held in abeyance until the TMP is timed out or qualifies as a notice partner. The whole thrust is one single proceeding, not tag-teaming petitions.

Issue is subject-matter jurisdiction (can the Court hear anything?) vs. claim processing (orderly disposition of the case). Only Congress can set those boundaries, and old Section 6226 with its interlocking timeframes is clear enough for Judge Ingenuity Buch and the majority, especially since Congress amended the first version of Section 6226 to allow a premature notice partner’s petition to await the TMP, rather than to be tossed as premature. If the premature petition was simply claim processing, why amend the statute?

And both 5 Cir and 9 Cir have held it jurisdictional (pre-Boechler).

Treating Section 6226 as nonjurisdictional would create chaos, with overlapping claims, late petitions in Tax Court, and cases in USDC or USCFC (concurrent jurisdiction for FPAAs, but Tax Court goes first) subject to stays.

And like a deficiency case, while a FPAA case is pending, no assessment or collection of tax from partners; IRS could start collecting after time ran out, only to be stayed by an equitably-tolled petition. Section 6229(d) only allows a year to enter assessments against partners after a Rule 155 beancount or expiry of time to petition a deficiency if noncomputational. Equitable tolling collides with all time limits, and allows for gamesmanship; one partner’s equitable tolling tolls every other partner, whether the others have a meritorious claim or not.

The presumption in favor of equitable tolling is just that – a presumption. Judge Ingenuity Buch demolishes the presumption in this case. History is on his side.

Judge Emin (“Eminent”) Toro says, sure toss the Schulers, but why the jurisdictional argy-bargy? Say they’re late, and walk away. Let 11 Cir deal with this.

Judge Christian N. (“Speedy”) Weiler, says he’s cool with tossing the Schulers, but three (count ’em, three) USCCAs going for equitable tolling in Section 6213(a) cases is a pattern, not a coincidence. There’s a compelling case for equitable tolling, but the Schuler’s attempted sashay around the prerequisites for equitable tolling (extraordinary circumstances delaying filing and prompt follow-up when able) by claiming nonjurisdictional without producing evidence in support of equitable tolling rules them out.

Judge Alina I. (“AIM”) Marshall says she’s down with the toss, but should be for failure to state a claim, not want of jurisdiction. There is jurisdiction, but got to plead and prove equitable tolling. The Schulers didnl’t.