Excuses, Excuses: Which Ones Will Work
![handle is hein.journals/jtaxpp24 and id is 39 raw text is: Excuses, Excuses: Which Ones
Will Work
By Keith Fogg*
KEITH FOGG is a Clinical Professor of
Law at Harvard Law School and the
Director of the Federal Tax Clinic.
n Boeehlcr the petitioner has asked the Supreme Court to determine that the
statute authoriing the Ix Court to hear Collection DLue Process (CDP) cases,
Code Sec. 0330, does not create an immutable deadline, aka jurisdictional
deadline, for filing the petition but rather a claims processing rule. If the statute
creates a claims processing rule rather than a jurisdictional time frame, then the
Supreme Court ni also determine that the time period for fling the petition is
one which the `I ax Court can waive through the application of the principles of
equitable tolling. Two of the bases for Iax Conut jurisdiction have already been
determined to impose claims processing rules rather than jurisdictional deadlines.
Depending on vhe ther the Supreme Court holds the CDP provision to create
a claims processing rule subject to equitabe rolleng and whether that decision
ultimately extends to the time period for filing defciency cases, the subject of
equitable tolling could become a hot topic in the Tax Court in the near future.
This article seeks to set out the rules that govern equitable tolling by providing
a uide to which excuses could work to allow a late-filed petition in the door of
the Iix Court.
Even if Boee/er does not result in a change in ix Court practice, there are
other situations in tax practice in which equitable tolling might make a difference.
1. General Rule Regarding When Equitable Tolling
Applies to a Statutory Time Period
It is hornbook law that limitations periods are customarily subject to equitable
tolling' unless tolling would he 'inconsistent xwih the text of the relevant statute.
This rebuttable presumption applies in suits agai nst the United States as wel as
against private parties.'IThis Court presumels] that Congress drafts limitations
periods in light of (the] background principle that rolling is generally available.
Congress can rebut /riins prestumption of equitable tolling in one of the two
waxas. 1est, when Congress makes a time bar jurisdictional, a court must enforce
that bar even ifequitable considerations would support extending the prescribed
time period. iSecon' even when a time har is not jurisdictional, a stattte's text
0 2022 K. FOGG 37
SPRING 2022](ViewImageLocal?handle=hein.journals/jtaxpp24&div=14&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Excuses, Excuses: Which Ones Will Work
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most