In a taxpayer-friendly ruling, the Second Circuit reversed the Tax Court’s dismissal of an untimely petition challenging an income tax deficiency. In Buller v. Commissioner, No. 25011-22 (2d Cir. 2025), the Second Circuit held that the 90-day deadline under I.R.C. § 6213(a) to file a challenge in Tax Court is not jurisdictional. Rather, section 6213(a) is a claim-processing rule subject to equitable tolling, which allows courts to retain authority to hear the case and may excuse a delay in filing for equitable reasons. In the end, the Second Circuit sent the case back to the Tax Court for a final determination on whether equitable tolling would apply to the taxpayer.
The Second Circuit has previously treated section 6213(a) as a jurisdictional statute. However, the Supreme Court’s decision in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) explained that dismissing cases for lack of jurisdiction without considering whether the procedural rule could be governed by the dismissing court was inadequate. While the Second Circuit is typically bound by prior decisions, Arbaugh cast doubt on controlling precedent where there has been an intervening Supreme Court decision. Thus, the Second Circuit decided to look at section 6213(a) with “fresh eyes” to determine whether its filing deadline is a limitation on the Tax Court’s jurisdiction. In doing so, the Second Circuit looked at United States v. Wong, 575 U.S. 402 (2015), where the Supreme Court stated that “the [g]overnment must clear a high bar to establish that a [procedural rule] is jurisdictional.” In other words, the statute must have a clear statement that is jurisdictional. Congress does not need to include any magic words, but there must be plain reading of the statute that shows jurisdictional consequences. Section 6213(a) did not contain a clear statement according to the Second Circuit. In fact, the Second Circuit found the words “may file” a petition in section 6213(a) to be “quite clearly,” a non-jurisdictional claim-processing rule with no strict requirement for filing.
The Second Circuit’s next task, with the guidance of the Supreme Court, was to determine whether section 6213(a) was subject to equitable tolling. The Supreme Court in Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), recently dubbed equitable tolling as a traditional feature of American jurisprudence. Furthermore, Boechler discussed another statute, I.R.C. § 6330(d)(1), which the Supreme Court decided did not expressly prohibit equitable tolling because there were no express prohibitions against it. Similarly, the Second Circuit came to the same conclusion regarding section 6213(a) due to the lack of express prohibitions against equitable tolling. If Congress wanted equitable tolling prohibited, the statute would mirror such intent.
After deciding section 6213(a) was subject to equitable tolling, the Second Circuit needed to clarify when a statute is not subject to equitable tolling. In United States v. Brockamp, 519 U.S. 347 (1997), a thorough review of a refund statute, I.R.C. § 6511, revealed it was not subject to equitable tolling because it includes clear time limitations laid out in a highly technical manner with explicit exceptions. In other words, section 6511 clearly explains all timing limitations and “requires” a taxpayer to file claim of refund. In comparing the two statutes, the Second Circuit held section 6213(a) is not written in the same technical manner and fails to include as many explicit exceptions. Specifically, the language in section 6213(a) states that a taxpayer “may file” a petition within 90 days, which is not the same as the highly technical language in 6511 where a taxpayer is “required” to file.
In all, taxpayers may have additional remedies when faced with late-filed petitions. The Second Circuit’s treatment of section 6213(a) as a claim-processing provides a possible avenue for taxpayers to challenge a missed deadline. However, Mark Buller and Sarah Beatty’s victory at the Second Circuit may be short lived if the Tax Court decides that they are not entitled to equitable tolling. Moving forward, failure to timely file a petition no longer results in death on arrival to the Tax Court – at least for cases appealable to the Second Circuit. While timely filing remains a critical aspect in Tax Court proceedings, Taxpayers now have a solid argument for equitable relief.
