The third time was not a charm for the IRS and the Tax Court regarding the question of whether the 90-day deadline to file a Tax Court petition to dispute a Notice of Deficiency is a jurisdictional requirement. The United States Court of Appeals for the Sixth Circuit recently issued a significant decision in Naysha Y. Oquendo v. Commissioner of Internal Revenue, reversing the Tax Court’s dismissal of a petition for redetermination due to untimely filing.

This ruling, which departs from the Circuit’s long-held position regarding the jurisdictional nature of the 90-day filing deadline under Internal Revenue Code (I.R.C.) § 6213(a), means that all three Circuits to rule on this issue following the Supreme Court’s recent rulings on when equitable tolling of a filing deadline with a court is available have now agreed. Along with the Second and Third Circuits, the Sixth has agreed that the Tax Court must take into account equitable considerations when a taxpayer misses the 90-day deadline to challenge a Notice of Deficiency before dismissing the petition for being untimely. This article details the facts of the case, the taxpayer’s request for relief, the Sixth Circuit’s legal analysis, and its ultimate conclusions.

Factual Background of the Dispute

The case originated when Petitioner Naysha Y. Oquendo appealed an order from the United States Tax Court. The Internal Revenue Service (IRS) is charged with determining taxpayers’ tax liability. After auditing Oquendo’s 2022 tax returns, the IRS determined she was not entitled to head-of-household status, the Earned Income Tax Credit, or the Child Tax Credit. As a result, the IRS asserted tax deficiencies and penalties under I.R.C. §§ 6662(a) and 6676.

On May 30, 2023, the IRS mailed Oquendo a notice of deficiency concerning these determinations. A notice of deficiency is a crucial document, providing taxpayers with notice that the Commissioner intends to assess a deficiency and offering an opportunity for review by the Tax Court before the assessment becomes effective. The notice must identify the taxpayer, state the deficiency amount and taxable year, and indicate that a deficiency was determined. The notice issued to Oquendo listed the amounts purportedly owed and explicitly informed her that she could contest these determinations by filing a petition with the Tax Court by August 28, 2023. I.R.C. § 6213(a) provides taxpayers ninety days after the notice is mailed to petition the Tax Court for redetermination.

Oquendo ultimately filed her petition for redetermination with the Tax Court on November 1, 2023. This filing occurred approximately five months after the IRS mailed the notice of deficiency, specifically 155 days after the mailing date. In her petition, Oquendo disputed the denied credits, filing status, and penalties, asserting that she met the criteria for having three qualifying children, solely maintaining her home, and residing with the children for the required period.

The Taxpayer’s Request for Equitable Relief

Central to Oquendo’s petition was her argument that the Tax Court erred by treating the § 6213(a) 90-day petition-filing deadline as a jurisdictional requirement. She contended that the deadline should instead be subject to the court’s equitable authority to excuse her noncompliance.

Oquendo requested equitable tolling of the filing deadline, advancing several reasons:

She asserted she did not receive actual notice of the deficiency until after October 10, 2023, when her designated representative received a collection notice dated October 9, 2023. This was because the notice was sent to her former address.
She argued she lacked constructive knowledge of the filing requirement because the Commissioner did not send the notice of deficiency to her designated representative.
She demonstrated diligence, filing her petition for redetermination twenty days after learning of the notice of deficiency.
Oquendo contended that the Commissioner would not be prejudiced by the Tax Court considering her petition, as she was entitled to review the underlying proposed deficiency during a Collection Due Process (CDP) hearing, the decision of which could also be reviewed by the Tax Court.
Finally, she claimed to be reasonably unaware of the petition-filing requirement, stating that the only way to determine that the notice had been issued would have been for her or her representative to "blindly contact" the Commissioner.

The Tax Court’s Initial Ruling and the Appeal

The Tax Court granted the Commissioner’s motion to dismiss Oquendo’s petition for lack of jurisdiction. It held that its jurisdiction to review petitions for redetermination depends on the issuance of a valid notice of deficiency and the timely filing of a petition, which must generally be "within 90 days of the date on which the Commissioner mails a valid notice of deficiency". The Tax Court explicitly stated it had "no authority to extend this 90-day period". In rejecting Oquendo’s equitable tolling argument, the Tax Court reasoned that "The Sixth Circuit has held that the timely filing deadline in deficiency cases is jurisdictional" citing Patmon & Young Pro. Corp. v. Comm’r, 55 F.3d 216 (6th Cir. 1995). Oquendo subsequently filed a timely appeal to the Sixth Circuit.

The Sixth Circuit’s Legal Analysis

The Sixth Circuit reviewed the Tax Court’s determination of jurisdiction de novo, as it is a legal conclusion. Its analysis meticulously distinguished between jurisdictional and nonjurisdictional claims-processing rules, critically re-evaluating prior precedent in light of recent Supreme Court guidance.

Redefining Jurisdictional vs. Claims-Processing Rules

The court began by emphasizing the "high bar" set by the Supreme Court for labeling statutory requirements as jurisdictional.

Jurisdictional provisions describe a court’s fundamental authority—its subject-matter jurisdiction (classes of cases it can hear) or personal jurisdiction (persons over whom it can exercise authority). These provisions "mark the bounds" of a court’s power, cannot be waived or forfeited, and necessitate dismissal "no matter how far along the litigation has progressed".
Claims-processing rules, conversely, are procedural requirements designed to "promote the orderly progress of litigation". While rigid, they do not "eliminate or expand ‘the classes of cases a court may entertain’" and, importantly, "may be waived or forfeited".
The Supreme Court’s "clear statement" rule mandates that a procedural requirement is jurisdictional "only if Congress ’clearly states’ that it is". A presumption exists against a jurisdictional reading without clear congressional expression, and mere plausibility or a "better" interpretation is insufficient if other plausible, nonjurisdictional readings exist.

Reassessing Precedent on § 6213(a)

The Commissioner argued that established precedent, including prior Sixth Circuit cases and Supreme Court pronouncements, had consistently referred to § 6213(a)’s petition-filing deadline as a jurisdictional prerequisite. However, the Sixth Circuit noted that it had "yet to look at the question" with the clarity provided by the Supreme Court’s recent, more disciplined approach to identifying jurisdictional rules.

The court explained that previous "jurisdictional" labels were often "less than meticulous" and such "unrefined dispositions" should be accorded "no precedential effect" on the question of whether a court truly had the authority to adjudicate a claim. Consequently, the Sixth Circuit undertook to "re-assess[] the line between jurisdictional and claims-processing requirements" and decided not to treat its past "extraneous or passing references to jurisdiction with respect to § 6213(a)" as controlling weight.

Scrutiny of I.R.C. § 6213(a)’s Statutory Text

Applying the "clear statement" rule, the court meticulously examined the text of I.R.C. § 6213(a). The relevant portion states: "Within 90 days[] . . . after the notice of deficiency . . . is mailed . . . , the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency".

The Sixth Circuit found that this language "notably absent" were "directive[] to courts," any "reference to jurisdiction," or "language ’demarcat[ing] a court’s power’". Instead, the provision "speaks to what [taxpayers], not courts, must do".

The court drew a direct comparison to the Supreme Court’s decision in Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022). In Boechler, the Supreme Court held that the 30-day deadline in I.R.C. § 6330(d)(1) for petitioning the Tax Court for review of a Collection Due Process (CDP) determination was not jurisdictional, even though it explicitly mentioned jurisdiction within the same sentence. The Sixth Circuit observed that § 6213(a)’s text is even less indicative of a jurisdictional limit. While § 6213(a) does contain jurisdictional language (in a later sentence concerning the Tax Court’s power to enjoin IRS actions or order refunds), it is "separated by multiple sentences from its petition deadline language". The court emphasized the key distinction that the jurisdictional language pertains to "what the Tax Court shall do," while the petition-filing deadline "explains what the taxpayer may do". This "dichotomy" and resulting ambiguity led the court to conclude that "it is difficult to make the case that the jurisdictional reading" of § 6213(a) "is clear".

Rejection of Contextual Arguments and Circuit Alignment

The Commissioner also tried to establish jurisdictional intent through I.R.C. § 7459(d), which generally treats a dismissal of a redetermination proceeding as a decision for the Secretary’s determined deficiency amount, unless the dismissal is "for lack of jurisdiction". The Commissioner argued that a nonjurisdictional reading of § 6213(a) would create a "quagmire" for taxpayers seeking other relief avenues. The court, however, was "not convinced" that this outcome was unconsidered by Congress or incompatible with the statutory scheme, reiterating that such policy arguments do not equate to a "clear statement" of jurisdictional intent.

Notably, the Sixth Circuit aligned with the Second and Third Circuits, which also held that § 6213(a)’s petition-filing deadline is not jurisdictional (citing Buller v. Comm’r, 2025 WL 2348969, and Culp v. Comm’r, 75 F.4th 196). The court respectfully disagreed with the Seventh and Ninth Circuits, which had previously held the deadline to be jurisdictional, noting that those opinions predated the Supreme Court’s Boechler decision and relied on precedent now deemed to lack precedential weight on this specific issue.

The Presumptive Availability of Equitable Tolling

Having determined that the § 6213(a) deadline is not a jurisdictional rule, the Sixth Circuit concluded that it is therefore "presumptively subject to equitable tolling". Equitable tolling is a "traditional feature of American jurisprudence" that "allows courts to toll a statute of limitations when ’a litigant’s failure to meet a legally-mandated deadline unavoidably arose from circumstances beyond that litigant’s control’". The court underscored that if the deadline had been jurisdictional, equitable exceptions would be impermissible.

Conclusion and Remand for Further Proceedings

For the reasons outlined, the Sixth Circuit REVERSED the judgment of the Tax Court and REMANDED the case for consideration of Oquendo’s entitlement to equitable tolling.

The court clarified that equitable tolling is not automatically applicable and requires a "fact-intensive inquiry" conducted on a case-by-case basis by the lower court. Oquendo bears the affirmative duty to establish her entitlement to equitable tolling.

The Tax Court, on remand, is instructed to consider the Sixth Circuit’s traditional five-factor test for equitable tolling:

Oquendo’s lack of notice of the petition-filing requirement.
Her lack of constructive knowledge of the petition-filing requirement.
Her diligence in pursuing her rights under § 6213(a).
The absence of prejudice to the Commissioner.
Oquendo’s reasonableness in remaining ignorant of § 6213(a)’s petition-filing deadline.

The court emphasized that these factors are neither exclusive nor individually determinative in every equitable tolling analysis; rather, a "particularized inquiry" is necessary to assess eligibility.

With the Tax Court’s view of the matter having been reversed in three Circuit Courts of Appeals decisions, and with no other Circuit agreeing with the Tax Court on the matter in a decision issued after the Boechler case was decided by the U.S. Supreme Court, advisors should watch to see if the Tax Court decides to reverse its position that the 90-day deadline to file a petition in deficiency cases is an absolute one. If the Tax Court holds firm on its position, we can expect to see other Circuits being asked to rule on this matter.

Prepared with assistance from NotebookLM.