Tax professionals frequently grapple with the intricacies of statutory deadlines, particularly when challenging Internal Revenue Service (IRS) determinations. A recent decision by the United States Court of Appeals for the Second Circuit in Buller v. Commissioner, No. 24-1557 (2d Cir. 2025), has provided crucial clarity regarding the nature of the filing deadline under I.R.C. § 6213(a) for petitions to the U.S. Tax Court. This decision represents a significant shift from previous understandings and has direct implications for how practitioners advise clients facing deficiency notices.

Case Background

Mark Buller and Sarah Beatty ("Petitioners") challenged an income-tax deficiency determination for their 2018 tax year. The IRS mailed a notice of deficiency to the Petitioners on August 22, 2022. Under I.R.C. § 6213(a), taxpayers are generally required to file a petition with the Tax Court within ninety days of the mailing of a deficiency notice. In this instance, the Petitioners’ counsel filed their petition nine days after this ninety-day deadline.

On January 27, 2023, the IRS moved the Tax Court to dismiss the petition, asserting a lack of jurisdiction due to the untimely filing. The Tax Court, presided over by Chief Judge Kathleen Kerrigan, agreed with the IRS, concluding that it lacked jurisdiction because the petition was not filed by the I.R.C. § 6213(a) deadline, and subsequently dismissed the petition. The Petitioners timely appealed this judgment to the Second Circuit.

Taxpayer’s Argument and Requested Relief

The Petitioners contended before the Tax Court and on appeal that I.R.C. § 6213(a) is not a jurisdictional rule but rather a nonjurisdictional, claim-processing rule. Crucially, they argued that as a nonjurisdictional rule, it should be subject to equitable tolling. Their request for relief sought the reversal of the Tax Court’s dismissal and a remand for the Tax Court to consider whether they were entitled to equitable tolling.

The Second Circuit’s Legal Analysis

The Second Circuit reviewed the Tax Court’s dismissal for lack of jurisdiction and the question of equitable tolling de novo.

Section 6213(a) as a Nonjurisdictional, Claim-Processing Rule

Historically, the Second Circuit, like many other federal appellate courts, had described I.R.C. § 6213(a) as jurisdictional. However, the court highlighted that recent Supreme Court decisions have urged greater precision in the use of the term "jurisdiction," emphasizing that true jurisdictional provisions cannot be waived or forfeited, must be raised sua sponte by courts, and do not allow for equitable exceptions (Boechler, P.C. v. Comm’r, 596 U.S. 199, 203 (2022); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011); Arbaugh v. Y&H Corp., 546 U.S. 500, 511 (2006)). The Supreme Court has also clarified that prior decisions merely stating dismissal for "lack of jurisdiction" without explicit consideration of a court’s adjudicatory capacity should receive "no precedential effect" (Wilkins v. United States, 598 U.S. 152, 160 (2023)). This allowed the Second Circuit to revisit its prior precedents with "fresh eyes".

The court noted that for a procedural rule to be deemed jurisdictional, Congress must "plainly show that Congress imbued a procedural bar with jurisdictional consequences" (United States v. Wong, 575 U.S. 402, 410 (2015)). A jurisdictional reading must be "clear," not merely "plausible" (MOAC Mall Holdings LLC v. Transform Holdco LLC, 598 U.S. 288, 298 (2023); Boechler, 596 U.S. at 205). Furthermore, "most time bars are nonjurisdictional" claim-processing rules.

Analyzing the language of I.R.C. § 6213(a) itself, the Second Circuit found that it "speaks only to a claim’s timeliness, not to a court’s power," resembling "mundane statute-of-limitations language" (Wong, 575 U.S. at 410). The phrase "the taxpayer may file a petition" is permissive and, as the Supreme Court has held, does not speak in jurisdictional terms (Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013)). The court also observed that the provision is directed at the taxpayer’s procedural obligations rather than a court’s authority (Fort Bend County v. Davis, 587 U.S. 541, 551 (2019)). Significantly, the word "jurisdiction" does not appear in the relevant sentence of § 6213(a). Unlike other Tax Code provisions, such as I.R.C. § 6015(e)(1)(A), which expressly condition the Tax Court’s jurisdiction on timely filing, § 6213(a) contains no such explicit link. The court also pointed out that despite multiple amendments to § 6213 since 1924, Congress has never specified that the filing deadline imposes a jurisdictional bar (Wong, 575 U.S. at 412).

The Commissioner’s arguments to uphold the jurisdictional nature of § 6213(a) were rejected. The Commissioner cited a later sentence in § 6213(a) that grants the Tax Court "no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition . . . has been filed". The court countered that a requirement does not become jurisdictional simply by being placed in a section that also contains jurisdictional provisions (Auburn, 568 U.S. at 155). This express statement of jurisdiction regarding injunctive relief, if anything, "highlights the lack of such clarity" elsewhere in the provision (Boechler, 596 U.S. at 208).

The Commissioner also emphasized that, prior to 2023, every federal appellate court had considered § 6213(a)’s deadline jurisdictional. However, the court reiterated that this does not constitute a "long line of Supreme Court decisions" necessary to maintain a jurisdictional label where it is not clear from the statute’s text (Davis, 587 U.S. at 548). Lower court opinions with "fleeting references to jurisdiction" are insufficient.

Finally, the Commissioner argued that a non-jurisdictional dismissal would harm taxpayers by locking in the deficiency amount under I.R.C. § 7459(d), which states that a Tax Court dismissal is considered a decision for the determined deficiency unless the dismissal is for lack of jurisdiction. The Second Circuit dismissed this as a "theoretical possibility" that is "seldom, if ever, to occur," aligning with the Third Circuit’s reasoning in Culp v. Comm’r, 75 F.4th 196, 202 (3d Cir. 2023).

Section 6213(a) is Subject to Equitable Tolling

Having determined that I.R.C. § 6213(a) is a nonjurisdictional, claim-processing rule, the court proceeded to assess its susceptibility to equitable tolling. The Supreme Court has established a presumption that "nonjurisdictional limitations periods are presumptively subject to equitable tolling" (Boechler, 596 U.S. at 209). Equitable tolling is considered a "traditional feature of American jurisprudence".

The Second Circuit found that the rationale applied by the Supreme Court in Boechler, which held I.R.C. § 6330(d)(1) subject to equitable tolling, applies with equal force to § 6213(a). Both statutes "do[] not expressly prohibit equitable tolling, and [their] short . . . time limit is directed at the taxpayer, not the court" (Boechler, 596 U.S. at 209). Furthermore, § 6213(a)’s deadline is found in a part of the Tax Code "unusually protective of taxpayers" and within a scheme where "laymen, unassisted by trained lawyers, often initiate the process" (Boechler, 596 U.S. at 209).

The court distinguished § 6213(a) from I.R.C. § 6511, which governs claims for credit or refund of overpayments and was held not subject to equitable tolling in United States v. Brockamp, 519 U.S. 347 (1997). Unlike § 6511, § 6213(a) does not present its time limitations in an "unusually emphatic form," "highly detailed technical manner," or with numerous explicit exceptions. The court cited Culp v. Comm’r, 75 F.4th at 203–04, noting that § 6213(a)’s exceptions are fewer and less explicit than those in Brockamp.

Finally, the court highlighted that § 6213(a)’s deadline plays a "far more limited and ancillary role in the tax collection system" compared to the scope of § 6511. Citing the Commissioner’s own data, the court noted the significantly smaller number of deficiency notices and petitions (less than 21,000 in 2023) compared to the over 90 million tax refunds implicated in Brockamp. The court concluded that equitable tolling for § 6213(a) is unlikely to "appreciably add to the uncertainty" or encourage a wave of untimely filings (Boechler, 596 U.S. at 211; Culp, 75 F.4th at 204).

Application to the Facts and Conclusion

Based on its legal analysis, the Second Circuit concluded that the Tax Court erred in dismissing the Petitioners’ case for lack of jurisdiction. Since I.R.C. § 6213(a) is a nonjurisdictional, claim-processing rule that is subject to equitable tolling, the Tax Court did, in fact, have the authority to review the petition.

Consequently, the Second Circuit REVERSED the judgment of the Tax Court and REMANDED the case. The Tax Court is now directed to consider, in the first instance, whether Mark Buller and Sarah Beatty are entitled to equitable tolling for their untimely filing.

Takeaways for Tax Professionals

This decision by the Second Circuit marks a significant development for tax practice. It clearly establishes that the 90-day (or 150-day for non-U.S. residents) deadline for filing a Tax Court petition is not an immutable jurisdictional bar, but rather a procedural rule that can be subject to equitable exceptions.

For CPAs and EAs, this means:

While timely filing remains paramount, an untimely petition may no longer automatically result in dismissal.
Understanding the principles of equitable tolling is now critical. Practitioners may need to argue for its application in cases of late filing where extraordinary circumstances prevented timely action.
This ruling aligns the Second Circuit with the Third Circuit’s position on this issue, as evidenced by the explicit citations to Culp v. Commissioner. This growing consensus among circuit courts, influenced by recent Supreme Court guidance, provides more consistent groundwork for taxpayer representation.

This ruling underscores the importance of staying abreast of evolving interpretations of procedural rules in tax litigation, which can profoundly impact taxpayer rights and the strategic options available to practitioners.

Prepared with assistance from NotebookLM.