Turns out that maybe Judge Travis A. (“Tag”) Greaves and your reporter spoke too soon. Maybe my account of the Section 7436 worker classification 90-day cutoff isn’t the whole story. See Belagio Fine Jewelry, Inc., Docket No. 35762-21, filed 2/24/26.

For the backstory, see my blogposts “Is It or Isn’t it?” 6/25/24, and “It Is!” 4/15/25.

IRS moves to toss Belagio’s petition for failure to state a claim (maybe because Belagio is Golsenized to 11 Cir and maybe Pugsley isn’t the last word) and asks for a decision “determining the proper employment status of the worker at issue, and the proper amount of employment taxes, additions to tax, and penalties due from petitioner.” Order, at p. 1.

Belagio’s representative is present at the motion hearing and doesn’t object. Sounds to Taishoff like a stiped decision. So maybe equitable tolling is available in Section 7436 reclassifications. 

Except.

Judge Tag Greaves orders “respondent’s Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted…is granted, and this case is dismissed because the Petition was not filed within the period prescribed by I.R.C. section 7436(b)(2).” Order, at p. 2.

Taishoff says huh? If petition not timely filed, Court has no jurisdiction, unless equitable tolling applies, which is never discussed. If Court rules petition fails to state a claim, Court must have or assert jurisdiction to do so, and Court only gets jurisdiction with a timely filed (or equitably tolled) petition. Which is it, Judge?

Anyway, Benny the employee gets a two page W-2. And Belagio will get a bill for the Section 6651(a)(2) failure to pay timely add-on when the parties figure it out.