Posted by: Robert Horwitz | July 26, 2018

Another Court Holds Time Period for Filing Innocent Spouse Claim in Tax Court Is Jurisdictional-But What about Petitions to Contest Deficiency Determinations by Robert S. Horwitz

For more than a decade, the Supreme Court has been chipping away at the notion that periods of limitation for filing suit are necessarily jurisdictional.  See Kontrick v. Ryan, 540 U.S. 443, 455 (2004).  The Supreme Court has held that a filing deadline is almost never jurisdictional unless Congress makes clear that it is.  United States v. Wong, 135 S. Ct. 1625 (2015).  In Nauflett v Commissioner, Docket No. 17-1986 (3d Cir. June 14, 2018), the Third Circuit joined the First and Second Circuits to hold that the ninety-day period for filing a petition for innocent spouse relief in Tax Court is jurisdictional.

Ms. Nauflett’s request for innocent spouse relief was denied by the IRS.  The deadline to file a petition with Tax Court was September 15, 2015. She filed on September 22 due to being misinformed by IRS employees as to the filing date.  The Tax Court dismissed her petition for lack of jurisdiction.  Ms. Nauflett appealed.

To decide the issue, the Third Circuit first looked at the statutory language, Internal Revenue Code §6015(e)(1)(A), which provides that an innocent person claiming innocent spouse relief may petition the Tax Court (and the Tax Court shall have jurisdiction) to determine the appropriate relief available to the individual under this section if such petition is filed—

(i) at any time after the earlier of—

(I) the date the Secretary mails, by certified or registered mail to the taxpayer’s last known address, notice of the Secretary’s final determination of relief available to the individual, or

(II) the date which is 6 months after the date such election is filed or request is made with the Secretary, and

(ii) not later than the close of the 90th day after the date described in clause (i)(I).

According to the Court, under the plain language of §6015(e)(1)(A), jurisdiction was granted the Tax Court only if the petition was filed within the 90-day period.  Thus, the filing period was jurisdictional.

The Court found further support for its understanding of Congressional intent from the context of the subsection.  Section 6015(e)(1)(B) prohibits the IRS from collection action until the end of the ninety-day period.  It also grants the Tax Court jurisdiction to enjoin collection activity if a timely petition is “filed under subparagraph (A).”  It rejected Ms. Nauflett’s arguments as “strained.”

In a previous blog, here, I commented on the Ninth Circuit’s decision in Duggan v Commissioner, and noted that based on the Supreme Court’s recent cases on filing limits, the 90-day period for filing a petition to challenge a deficiency may not be jurisdictional.  It turns out that there are two cases currently pending in the Ninth Circuit raising that issue, Organic Cannabis Foundation v Commissioner, Docket No. 17-72874, and Northern California Small Business Assistants v Commissioner, Docket No. 17-72877.

The argument advanced in support of the taxpayers is that §6213(a), which provides that a taxpayer may petition the Tax Court for redetermination of a deficiency within 90-days (or 150-days if the notice is addressed to a person outside the United States) after mailing of the deficiency notice, does not grant the Tax Court jurisdiction .  Jurisdiction over deficiency petitions is granted in §6214.   Thus, there is no clear indication that Congress intended to make the period for filing a petition jurisdictional.  The taxpayers and amicus note that the Ninth Circuit in Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2015), held that the time period for filing a wrongful levy action is not jurisdictional.  Additionally, they note that there are no Supreme Court cases holding that the period for filing in Tax Court is jurisdictional.  They also argue that equitable tolling applies to §6213(a).  The taxpayers in both cases are represented by Doug Youmans and Matthew Carlson of Wagner Kirkman Blaine Klomparens & Youmans, LLP, of Sacramento.  Amicus briefs on behalf of the taxpayers were filed by the Keith Fogg of the Harvard Law School Tax Clinic and Carlton Smith of New York.  These are important cases that could have major repercussions.  Keep an eye out for further developments.

ROBERT S. HORWITZ – For more information please contact Robert S. Horwitz – or 310.281.3200   Mr. Horwitz is a principal at Hochman, Salkin, Rettig, Toscher & Perez, P.C., a former Assistant United States Attorney of the Tax Division of the Office of the U.S. Attorney (C.D. Cal) and represents clients throughout the United States and elsewhere involving federal and state, administrative civil tax disputes and tax litigation as well as defending criminal tax investigations and prosecutions. Additional information is available at





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