4.3 Petition Timeliness

To contest a Notice of Deficiency or the determination of Innocent Spouse Relief, the Tax Court petition generally must be filed within 90 days of the mailing date of the Notice.1 The deadline is 150 days if the Notice of Deficiency is addressed to someone living outside of the United States. The Notice of Deficiency must tell the taxpayer the last date to file a petition with the Tax Court. That date will be deemed to be timely (even if it is wrong). This deadline is considered jurisdictional, meaning that the Tax Court cannot hear an untimely filed case, which can be dismissed by either party or by the court sua sponte.

Tax Court petitions to review collection due process appeal decisions must be filed within 30 days of the Notice of Determination.2 This deadline has always been considered jurisdictional, but the U.S. Supreme Court’s recent decision in Boechler, P.C v. Commissioner of Internal Revenue has upended that rule.3 In Boechler, the taxpayer’s petition was dismissed for missing the 30-day deadline following a decision from a collection due process appeal.4 The Tax Court dismissed the case sua sponte, reasoning that the missed deadline deprived the court of jurisdiction. The taxpayer (a law firm) appealed, and the Eighth Circuit affirmed.5  The Supreme Court, however, stated that Congress had not clearly mandated that this deadline be jurisdictional, and thus, it could not be treated as such.6 A motion to dismiss the untimely petition must be filed by the IRS, and the taxpayer must have an opportunity to respond. This opens the door for possible “equitable tolling” arguments, in which the taxpayer can argue that some “extraordinary circumstance” prevented the taxpayer from timely filing the petition.7  

The types of arguments that will be accepted for equitable tolling remain to be seen, as does the question of whether the 90-day deadline and other Tax Court deadlines are also nonjurisdictional. These questions are expected to generate much litigation in the future. 

A taxpayer who received the deficiency notice while a bankruptcy action was pending or who filed a bankruptcy petition during the 90-day delay for filing a petition in Tax Court may have additional time. In such cases, the time for filing the Tax Court petition is suspended until 60 days after the bankruptcy discharge.8 A bankruptcy debtor cannot file a Tax Court petition unless the bankruptcy stay is lifted by the bankruptcy court.9 In such cases, the bankruptcy may control whether a bankruptcy court or the Tax Court decides the tax liability issue. A Tax Court deadline may also be extended if the taxpayer was out of the country when the Notice of Deficiency was issued.

A Tax Court petition is considered timely if it is put in the mail within the appeal period. This means that you should use certified or registered mail and secure an official postmark if you are relying on a mailing date to meet the deadline. Make sure that the Post Office gives you a correct postmark date. The petition in a deficiency or innocent spouse relief case must be received within 90 days or mailed in a properly addressed envelope with an official U.S. Post Office postmark or by Federal Express or UPS10 within the 90-day window.11 If the IRS disputes the timeliness of the appeal, you must be able to prove the mailing date. Currently, the Tax Court does not allow electronic or fax filing of the initial petition.

Don’t use privately metered mail to file Tax Court petitions. The mailbox rule does not apply to this delivery method, and so to be timely, the petition must be actually received by the Tax Court by the deadline. If it is not received within that time, it will be difficult to prove that the petition was timely mailed.12

If a deadline for Tax Court review is missed, the IRS can begin collection actions that may include levies, liens, and seizures. The taxpayer’s only judicial remedy is to pay the tax and sue for refund—usually in federal district court. This is not a realistic option for most low-income clients.13 If the deadline has been missed, you may want to try an audit reconsideration14 or an Offer in Compromise to eliminate the taxpayer’s liability if there is “doubt as to liability.”15

• 1I.R.C. §§ 6213, 6015(e). The deadline is 90 days even if the taxpayer didn’t receive notice until many days after the notice date. A notice properly mailed to the taxpayer at the taxpayer’s “last known address” is valid even if not received. United States v. Ahrens, 530 F.2d 781, 785 (8th Cir. 1976). For judicial review of a denial of innocent spouse relief or separate liability election, a taxpayer may file a petition at any time after the first of (a) 6 months from filing the request for innocent spouse relief or filing a return with a separate liability election; or (b) 90 days from the date of a Notice of Deficiency. I.R.C. § 6015 (e)(1)(A).
• 2I.R.C. § 6330(d); McCune v. Comm’r, 115 T.C. 114 (2000).
• 3142 S. Ct. 1493 (2022).
• 4Id. at 1497.
• 5Id.
• 6Id. at 1498.
• 7See id. at 1500–01.
• 8I.R.C. § 6213 (f)(1); Zimmerman v. Comm’r, 105 T.C. 220 (1995).
• 911 U.S.C. § 362(a)(8); Halpern v. Comm’r, 96 T.C. 895 (1991).
• 10If you use these companies, make sure that you use the type of delivery recognized by the IRS. Gibson v. Comm’r, 264 F. App’x 760 (10th Cir. 2008) (holding that petition was untimely because UPS store sent the petition by US mail rather than by the approved UPS delivery service).
• 11I.R.C. § 7502(a).
• 12See 26 C.F.R. § 301.7502-1(c)(1)(iii)(b).
• 13Note, however, the possibility of paying the tax may be meaningful in Earned Income Credit cases because the taxpayer often does not owe any tax even without the EIC. Instead of demanding payment of an outstanding tax bill, the IRS has denied the EIC before ever paying it to the taxpayer.
• 14A taxpayer whose claim is disallowed in an audit reconsideration may appeal to an IRS appeals officer.
• 15See 26 C.F.R. § 301.7122.