United States Court of Appeals
For the First Circuit
No. 25-1429
KYICK HOLDINGS, LLC, Transferee,
Petitioner, Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE SERVICE,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES TAX COURT
[Hon. Christian N. Weiler, U.S. Tax Court Judge]
Before
Gelpí, Lynch, and Howard,
Circuit Judges.
William F. Campbell, with whom John W. Geismar, Daniel L.
Cummings, Lucy P. Weaver, and Norman, Hanson & DeTroy, LLC, were
on brief, for appellant.
Audrey Patten and The Legal Services Center of Harvard Law
School on brief for the Center for Taxpayer Rights, amicus curiae
for appellant.
Matthew Steven Johnshoy, with whom Ellen Page DelSole and
Sherra Wong, Attorneys, Tax Division, Department of Justice, were
on brief, for appellee.
August 17, 2026
GELPÍ, Circuit Judge. In August 2022, the Internal
Revenue Service ("IRS") mailed a notice of transferee liability
for unpaid taxes to Petitioner-Appellant Kyick Holdings, LLC
("Appellant") at the address on its most recent tax return.
Appellant did not initially receive the notice, and the United
States Postal Service returned it to the IRS as unable to be
delivered or forwarded. Appellant eventually learned of the notice
and filed a petition in Tax Court to contest the liability, 143
days after the IRS mailed the notice. Then, because the Tax Court
concluded that the statutory deadline to file a petition -- here,
ninety days -- was jurisdictional, it dismissed the petition. We
now hold (1) that the IRS exercised reasonable diligence in
determining Appellant's mailing address, (2) that the filing
deadline in 26 U.S.C. § 6213(a) is nonjurisdictional, and (3) that
§ 6213(a)'s filing deadline is nonetheless mandatory and not
subject to equitable tolling. We thus affirm the Tax Court's
dismissal of Appellant's petition, albeit on different grounds.
I.
A. Legal Background
Under the Internal Revenue Code (the "I.R.C." or the
"Tax Code"), codified at Title 26 of the U.S. Code, the Secretary
of the Treasury, through the IRS, "is authorized and required to
make the inquiries, determinations, and assessments of all
taxes . . . which have not been duly paid . . . at the time and in
- 2 -the manner provided by law." I.R.C. § 6201(a). Before assessing
a tax "deficiency," generally an underpayment as computed under
the Tax Code, the IRS must notify the taxpayer. Id. § 6212(a)
("If the Secretary determines that there is a deficiency in respect
of any tax . . . he is authorized to send notice of such deficiency
to the taxpayer by certified mail or registered mail.").
In general, taxpayers to whom the IRS mails a notice of
deficiency have ninety days from the date of mailing to file a
petition in the Tax Court if they wish to contest the deficiency.
Id. § 6213(a). During that period, the IRS generally may not
assess the deficiency or begin levy or court proceedings to collect
it, and if the taxpayer files a petition, those restrictions
generally remain in place until the Tax Court's decision is final.
Id. But if a taxpayer does not file a petition "within the time
prescribed," then the deficiency "shall be assessed, and shall be
paid upon notice and demand from the Secretary." Id. § 6213(c).
B. Factual Background1
In January 2018, Dwight Raymond and several of his
business entities transferred numerous assets2 to Appellant and
The parties do not dispute the underlying facts for purposes
1
of this appeal.
2To be specific: a twenty-eight-slip marina, a boatyard with
a travel lift, an eighty-foot whale watch vessel, a sixty-five-foot
scenic cruise vessel, and a seafood restaurant with an attendant
parking lot.
- 3 -nonparty Kyick Charters, LLC (together, the "LLCs"). His children,
Kylie Raymond and Nicholas Raymond, are the sole members of the
LLCs. After an investigation, the IRS concluded that the
transactions were fraudulent, undertaken to avoid federal income
tax and to transfer the assets for less than their fair market
value. Accordingly, on August 30, 2022, the IRS sent notices of
transferee liability for the deficiency (and related attachments)
to the LLCs for $696,269.77 in unpaid income tax, plus interest,
via certified mail.
Here, the paths of the LLCs diverge. The IRS mailed the
Kyick Charters notice to Post Office Box 2664, Kennebunkport,
Maine, which was the address listed on its most recent IRS filing
(a Form 941 Quarterly Tax Return). Kyick Charters received the
notice and timely filed a petition in the Tax Court challenging
its tax liability. As of briefing, that case remained pending and
is not the subject of this appeal.3 The IRS mailed Appellant's
notice to a different address, 4 Western Avenue, Kennebunk, Maine,
as listed on its then most recent tax filing, a 2021 federal tax
return. In early October 2022, the postal service returned the
notice to the IRS stamped "Return to Sender/Unclaimed/Unable to
3 See Kyick Charters, LLC v. Comm'r, No. 25548-22 (Tax Ct.
filed Nov. 17, 2022).
- 4 -Forward." Appellant did not receive a copy of the notice until
January 9, 2023.4
C. Procedural History
Shortly thereafter, on January 20, 2023, Appellant filed
a form petition in the Tax Court, and primarily argued that the
IRS's determination of a fraudulent transfer was error. In the
facts section of the petition, the final point asserted that
"delivery" of the notice "was defective and not timely," and thus
that the "[s]tatute of [l]imitations bars assertion of transferee
liability."
In September 2023, the IRS moved to dismiss the petition
for lack of jurisdiction. The IRS argued the Tax Court did not
have jurisdiction because Appellant filed the petition 143 days
after the IRS mailed the notice of transferee liability. Appellant
objected to the motion. In its view, the motion to dismiss was
"predicated on the notion that [Appellant] is challenging the
substantive assessment . . . regarding transferee liability" for
income tax. But according to Appellant, it sought "a declaratory
4 At a Tax Court hearing held in October 2024, counsel for
both LLCs explained how Appellant found out about its notice of
transferee liability. When counsel received the notice of
transferee liability for Kyick Charters, he reached out to the IRS
representative listed on that notice. After playing phone tag,
counsel spoke with the IRS representative in January of 2023, at
which point the representative mentioned Appellant's notice had
not been "picked up." Counsel requested a copy, and the IRS resent
it to him at an address he provided.
- 5 -judgment that the IRS assessment [was] invalid because it failed
to send the assessment notice to [Appellant] at its last known
address." Appellant maintained that the Tax Court "clearly [had]
jurisdiction to make that determination." And, in a footnote,
Appellant further asserted that "even if" it was "challenging the
substance of the assessment, the [Tax] Court would have
jurisdiction over the Petition." In support of that assertion,
Appellant cited Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023),
in which the Third Circuit held that § 6213(a) is a
nonjurisdictional filing deadline which may be equitably tolled.
The Tax Court held a remote proceeding in October 2024,
during which it heard arguments and received evidence. On
January 31, 2025, it granted the IRS's motion. Because there was
"no dispute that the Petition in this case was not filed within
the [ninety]-day period prescribed in [§] 6213(a)," it was
"evident" to the Tax Court that it lacked jurisdiction. Still,
the Tax Court considered whether dismissal "should be premised on
petitioner's failure to file a timely petition . . . or on [the
IRS's] failure to issue a valid notice of transferee liability[.]"
If the former, then the Tax Code mandates that "the
deficiency . . . shall be assessed, and shall be paid upon notice
and demand from the IRS." I.R.C. § 6213(c). If the latter, then
the IRS could not assess the deficiency because notice is required
and the statute of limitations for such notice would have run.
- 6 -See id. § 6213(a) ("[N]o assessment of a deficiency . . . shall be
made . . . until such notice has been mailed to the
taxpayer . . . ."); id. § 6501(a) (providing, as a general rule,
for a three-year statute of limitations to assess tax).
The Tax Court concluded that the IRS properly determined
the "last known address" for Appellant and that its actions did
not show a lack of "reasonable diligence." Given this decision,
because Appellant did not "file a petition with the Tax Court
within the time prescribed" by § 6213(a), the deficiency "shall be
assessed" and "paid upon notice and demand." Id. § 6213(c). (In
other words, Appellant must pay the tax liability.) Seeking to
avoid this outcome, Appellant timely filed this appeal.
II.
We have jurisdiction to review Tax Court decisions "in
the same manner and to the same extent as decisions of the district
courts in civil actions tried without a jury." Id. § 7482(a)(1).
That is, we review factual findings for clear error and legal
rulings de novo. Schussel v. Werfel, 758 F.3d 82, 87 (1st Cir.
2014) (quoting Drake v. Comm'r, 511 F.3d 65, 68 (1st Cir. 2007)).
Further, we may affirm the Tax Court's decision on any grounds
within the record. See Helvering v. Pfeiffer, 302 U.S. 247, 250-51
(1937) ("[A] decision below may be sustained . . . although it was
rested upon a wrong ground . . . . The same rule applies to a
decision of the Board of Tax Appeals."); Ross v. Comm'r, 169 F.2d
- 7 -483, 490 (1st Cir. 1948) ("[W]e have the right to
consider . . . other grounds which might justify the decision
below regardless of the erroneous theory advanced by the Tax
Court.").
Appellant presents two claims of error on appeal, but
because of a nested issue, the argument proceeds in three parts.
First, Appellant argues the Tax Court erred when it concluded that
the IRS exercised "reasonable diligence" in determining
Appellant's mailing address. Next, Appellant argues that the
filing deadline in I.R.C. § 6213(a) is nonjurisdictional. And
finally, Appellant asserts that if the deadline is
nonjurisdictional, then it may be equitably tolled on remand to
the Tax Court. We consider each issue seriatim.
A. Reasonable Diligence
Appellant first claims the Tax Court erred when it
concluded that the IRS exercised "reasonable diligence" in
determining Appellant's mailing address. The IRS counters that it
complied with statutory and regulatory authority and used
reasonable diligence in determining the last known address, as
listed on Appellant's 2021 federal tax return and confirmed by the
IRS's internal database. Because Appellant had an affirmative
duty to keep the IRS informed of its preferred mailing address and
failed to do so, we conclude that the Tax Court correctly
determined this issue.
- 8 -Before assessing a tax deficiency, the IRS "is
authorized to send notice of such deficiency to the taxpayer by
certified mail or registered mail," I.R.C. § 6212(a), at their
"last known address," id. § 6212(b). With respect to transferred
assets, the I.R.C. also provides (in relevant part) that "any
notice of liability enforceable under this section required to be
mailed to such person, shall, if mailed to the person subject to
the liability at his last known address, be sufficient for purposes
of this title." Id. § 6901(g).
Treasury regulations define "last known address" as "the
address that appears on the taxpayer's most recently filed and
properly processed Federal tax return, unless the [IRS] is given
clear and concise notification of a different address." Treas.
Reg. § 301.6212-2(a). The regulations also state that change of
address information provided to a third party, except for the
United States Postal Service, is not "clear and concise
notification of a different address for purposes of determining a
last known address under this section." Id. § 301.6212-2(b)(1),
(2).
Here, the IRS mailed a notice of transferee liability to
Appellant at its "last known address," as required under the Tax
Code, I.R.C. §§ 6212(b)(1) and 6901(g), and as defined by Treasury
Regulation § 301.6212-2(a): that is, 4 Western Avenue, the address
listed on Appellant's most recently filed and properly processed
- 9 -federal tax return. Before mailing the notice, the IRS also
confirmed the address in its internal database. Appellant does
not dispute that 4 Western Avenue appeared on its most recent
return. Mailing the notice to that address was thus "sufficient."
I.R.C. § 6901(g). Although the IRS knew of other addresses
associated with Appellant from the investigation, the documents
listing those addresses predated the 2021 tax return and were not,
as a matter of law, "clear and concise notification" from Appellant
of its mailing address. Treas. Reg. § 301.6212-2(a).
Nevertheless, Appellant urges us to hold that the IRS
had a duty to exercise "reasonable diligence" in determining the
correct address, that it failed to do so, and that the Tax Court
erred in concluding otherwise. Because of the investigation into
the underlying transactions, Appellant argues the IRS "had already
tied [the LLCs] together in every single aspect of assessing
transferee liability against each." Thus, according to Appellant,
the IRS had "actual knowledge" both that the 4 Western Avenue
address was incorrect, and of the correct mailing address -- which
was the address used for the notice mailed to Kyick
Charters -- based on the documents obtained during its
investigation. The IRS agrees that it had a duty to exercise
reasonable diligence but says that it did just so. The IRS also
argues that the Tax Court correctly rejected Appellant's
reasonable diligence challenge.
- 10 -The reasonable diligence test comes from non-binding,
out-of-Circuit case law,5 and it predates promulgation of the
regulations that define "last known address." See Treas. Reg.
§ 301.6212-2(d)(1) (section effective as of January 29, 2001).
Prior to the promulgation of those regulations, "last known
address," as it appeared in I.R.C. § 6212(b)(1), was a "term of
art" which "refer[ed] to the address, determined by all of the
surrounding facts and circumstances, at which [the IRS] reasonably
believed the taxpayer wished to receive mail at the time the notice
of deficiency was mailed." Fernandez v. Comm'r, 54 T.C.M. (CCH)
1036 (1987). As observed by the Seventh Circuit, "[t]here is a
tension" between decisions applying the reasonable diligence
standard and the newer regulation. Gyorgy v. Comm'r, 779 F.3d
466, 479 (7th Cir. 2015). Hence, we are not convinced that we
need to adopt the reasonable diligence standard. But even if we
assume, in Appellant's favor, that the IRS is required to use
reasonable diligence to determine a taxpayer's last known address,
it would not lead to a different result here.
Courts considering whether the IRS has exercised
reasonable diligence in determining a taxpayer's address look to
"what the IRS knew or should have known at the time it sent the
5 See, e.g., Mulder v. Comm'r, 855 F.2d 208, 211 (5th Cir.
1988); King v. Comm'r, 857 F.2d 676, 679 (9th Cir. 1988); Armstrong
v. Comm'r, 15 F.3d 970, 974 (10th Cir. 1994); Marks v. Comm'r, 947
F.2d 983, 984-85 (D.C. Cir. 1991) (per curiam).
- 11 -notice of deficiency," such as "information it should know through
the use of its computer system." Gregory v. Comm'r, 839 F. App'x
745, 747 (3d Cir. 2020) (unpublished) (citation modified). Courts
also look to information that an "address on file may no longer be
valid because of previously returned letters." Terrell v. Comm'r,
625 F.3d 254, 259 (5th Cir. 2010). Under this test, "[c]ourts
have held, for example, that the IRS must carefully process and
review more recent tax returns for a new address," and, in
addition, "carefully determine whether the taxpayer has otherwise
provided proper notification of an address change" and "correctly
transcribe [the address] on the mailing envelope." Gyorgy, 779
F.3d at 478 (citations omitted). Still, the IRS "is entitled to
treat the address appearing on a taxpayer's return as the last
known in the absence of clear and concise notification from the
taxpayer directing the [IRS] to use a different address." King v.
Comm'r, 857 F.2d 676, 679 (9th Cir. 1988) (quoting Alta Sierra
Vista, Inc. v. Comm'r, 62 T.C. 367, 374 (1974), aff'd mem., 538
F.2d 334 (9th Cir. 1976)); accord Armstrong v. Comm'r, 15 F.3d
970, 973-74 (10th Cir. 1994); Marks v. Comm'r, 947 F.2d 983, 985
(D.C. Cir. 1991) (per curiam); Terrell, 625 F.3d at 259.
To reiterate, Appellant admits that the IRS mailed the
notice of transferee liability to the address on its most recent
federal tax return. And prior to mailing, the IRS confirmed that
address in its internal database. Again: although the IRS knew of
- 12 -other addresses of entities associated with Appellant from the
investigation, the documents listing those addresses predated the
2021 tax return and were not clear and concise notification from
Appellant directing the IRS to use a specific address. Even under
the reasonable diligence standard, the IRS "had no duty to send
duplicate notices to every single address of which [it] had
knowledge." Marks, 947 F.2d at 986. In short, Appellant has not
shown that the IRS failed to exercise reasonable diligence.
B. Jurisdiction
We turn to the heart of this appeal: whether the filing
deadline in I.R.C. § 6213(a) is a limit on the Tax Court's
jurisdiction over deficiency redetermination proceedings, or
simply a procedural filing deadline. Our conclusion above, that
the IRS exercised reasonable diligence, means the notice of
transferee liability mailed to Appellant was sufficient under the
Tax Code. See I.R.C. § 6901(g). Thus, if § 6213(a)'s deadline is
jurisdictional, that is the end of the road for Appellant in the
Tax Court. But if the deadline is nonjurisdictional, then we must
consider whether § 6213(a) is subject to equitable tolling.
Because, as our analysis below demonstrates (see Section II.B.2),
the statutory text, structure, and context do not "clearly state[]"
that § 6213(a)'s filing deadline is jurisdictional, we conclude it
is not. Boechler, P.C. v. Comm'r, 596 U.S. 199, 204 (2022).
- 13 -1. Waiver
Before turning to the statutory analysis, we first
address the IRS's contention that Appellant waived its arguments
that § 6213(a)'s filing deadline is nonjurisdictional and subject
to equitable tolling. As the IRS points out, in contrast to the
ordinary rule that "[j]urisdictional requirements cannot be waived
or forfeited," Boechler, 596 U.S. at 203, "an argument in favor of
a court's subject-matter jurisdiction . . . can be waived or
forfeited," Mullane v. DOJ, 113 F.4th 123, 137 (1st Cir. 2024)
(citing Merrell Dow Pharms., Inc. v. Thompson, 478 U.S. 804, 809
n.6 (1986)). In reply, Appellant counters "there was
nothing . . . to waive" because "the Tax Court had subject-matter
jurisdiction as a matter of law."
As an initial matter, "[t]here is an important
distinction between 'waiver' and 'forfeiture' under our caselaw"
that the parties' briefing "seems to elide." Mullane, 113 F.4th
at 131 n.4. But see Freytag v. Comm'r, 501 U.S. 868, 894 n.2
(1991) (Scalia, J., concurring in part and concurring in the
judgment) (noting the Supreme Court has "so often" used the terms
waiver and forfeiture "interchangeably that it may be too late to
introduce precision"). Waiver "is the intentional relinquishment
or abandonment of a known right." Morgan v. Sundance, Inc., 596
U.S. 411, 417 (2022) (quoting United States v. Olano, 507 U.S.
725, 733 (1993)); see also Núñez-Pérez v. Escobar-Pabón, 133 F.4th
- 14 -33, 43 (1st Cir. 2025). "When an argument has been waived, no
review is possible, unless the court engages in the rare exercise
of its power to excuse waiver." United States v. Morgan, 384 F.3d
1, 7 (1st Cir. 2004). But a waiver is "merely one means by which
a forfeiture may occur." Freytag, 501 U.S. at 894 n.2 (Scalia,
J., concurring in part and concurring in the judgment). Forfeiture
occurs when a party "fails to lodge an objection or raise an
argument below" and "implies something less deliberate" than
waiver, such as "oversight, inadvertence, or neglect in asserting
a potential right." Mullane, 113 F.4th at 131 n.4 (quoting United
States v. Delgado-Sánchez, 849 F.3d 1, 6 (1st Cir. 2017)).
In making its waiver argument, the IRS points to
Appellant's express disclaimer of any challenge to "the
substantive assessment by the IRS regarding transferee liability,"
and to Appellant's citation to Culp. According to the IRS, the
Culp cite shows that Appellant knew the Third Circuit had held
§ 6213(a)'s filing deadline to be nonjurisdictional and subject to
equitable tolling, yet failed to press those arguments in Tax
Court. Neither argument supports a finding of waiver.
As to the disclaimer, it merely distinguished
Appellant's challenge to the validity of the notice from a
challenge to the merits of the alleged transferee liability. And
Appellant cited to the Third Circuit's decision in Culp to support
its position that the Tax Court had jurisdiction over the petition.
- 15 -Appellant argued that "the granting of [the requested relief] is
clearly within the [Tax] Court's jurisdiction" and that the Tax
Court had jurisdiction to determine whether the "IRS assessment is
invalid because [the IRS] failed to send the assessment notice to
[Appellant] at its last known address." Then, in a footnote,
Appellant stated that "[e]ven if the Petition were challenging the
substance of the assessment, the Court would have jurisdiction"
and cited to Culp. Far from suggesting that Appellant had
intentionally abandoned Culp's jurisdictional holding, that
citation placed the Tax Court and the IRS on notice that Appellant
was relying on the decision as support for the Tax Court's
jurisdiction. And although Appellant did not separately and
explicitly raise an argument for equitable tolling, it did allege
facts that fit neatly within that framework, including that the
IRS sent the notice to the wrong address, that Appellant did not
learn of the notice until after the expiration of the filing
period, and that it filed its petition shortly thereafter.
This record, as we read it, does not clearly show that
Appellant strategically or otherwise intentionally relinquished
the argument that § 6213(a)'s filing deadline is nonjurisdictional
and subject to equitable tolling. See United States v.
Bruno-Cotto, 119 F.4th 201, 206 (1st Cir. 2024) (concluding that
the defendant forfeited, rather than waived, a hearsay objection
because "there is nothing to suggest that he made a conscious
- 16 -decision to forgo a hearsay objection rather than failing to
appreciate the potential issue"); cf. Núñez-Pérez, 133 F.4th at 43
(finding waiver where a party had "expressed its clear and accurate
understanding" of the issue and "chose, in no uncertain terms, to
refrain from interposing" an available defense (citation
modified)). It is clear, however, that Appellant failed to
adequately develop its jurisdictional argument or to raise an
explicit equitable tolling argument in the Tax Court.6
Thus, at a minimum, Appellant forfeited both arguments.
See, e.g., Mullane, 113 F.4th at 133. In this Circuit, forfeiture
in a civil case triggers plain-error review, a stringent standard
whereby "a litigant must show that (1) an error occurred (2) which
was clear or obvious and which not only (3) affected the
appellant's substantial rights, but also (4) seriously impaired
the fairness, integrity or public reputation of the judicial
proceedings." Triantos v. Guaetta & Benson, LLC, 91 F.4th 556,
6 The citation to Culp does not persuade us that Appellant
did not forfeit its equitable tolling argument. Although the
taxpayers in that case "never argued equitable tolling in the Tax
Court," the Third Circuit concluded "they had no occasion to do
so" because the IRS had "never argued that, if § 6213(a) is not
jurisdictional, the [Tax] Court should still dismiss the Culps'
petition because the limitation period ran." 75 F.4th at 202.
Because the parties' "squabble in the Tax Court was limited to
whether the deadline was jurisdictional," the taxpayers had "no
logical reason to assert their claims may be tolled" and so
"neither forfeited nor waived" their equitable tolling argument.
Id. Here, Appellant did have reason to argue that if the deadline
was nonjurisdictional, it should be tolled. Its failure to do so
forfeited the argument.
- 17 -563 (1st Cir. 2024) (citation modified). We may review for plain
error even though Appellant did not address this standard in its
opening brief. See, e.g., Mullane, 113 F.4th at 133 & n.6
(applying plain error review although the appellant made "no
express effort" to satisfy that "extremely demanding" standard).
Appellant cannot satisfy this standard.
As to the jurisdictional argument, Appellant cannot
satisfy plain error's second prong -- a clear and obvious error.
"[I]f a question of law is unsettled in this circuit, and a
conflict exists among other circuits, any error in resolving the
question will not be 'plain or obvious.'" United States v.
Vázquez-Rosario, 45 F.4th 565, 571 (1st Cir. 2022) (quoting United
States v. Crocco, 15 F.4th 20, 24 (1st Cir. 2021)). Although we
hold today that § 6213(a)'s filing deadline is nonjurisdictional,
any error by the Tax Court in treating the deadline as
jurisdictional was not clear or obvious because, as discussed
below, our own precedent had treated the deadline as jurisdictional
and the courts of appeals had divided on the issue.7 See
Sections II.B.2-3, infra.
7Compare Culp v. Comm'r, 75 F.4th 196, 202 (3d Cir. 2023)
(holding, after the Supreme Court held that a filing deadline
elsewhere in the I.R.C. is nonjurisdictional, that § 6213(a)'s
filing deadline is nonjurisdictional), Oquendo v. Comm'r, 148
F.4th 820, 833 (6th Cir. 2025) (same), and Buller v. Comm'r, 160
F.4th 266, 270 (2d Cir. 2025) (same), with Atighi v. Comm'r, No.
21-71417, 2022 WL 17223046, at *1 (9th Cir. Nov. 25, 2022)
(unpublished) (holding that § 6213(a)'s filing deadline is
- 18 -As to equitable tolling, Appellant cannot satisfy the
plain error standard because, as we hold, § 6213(a) forecloses
such tolling even though the deadline that it imposes is not
jurisdictional. See Section II.C, infra. Accordingly, Appellant
has failed to establish an error or prejudice pursuant to prongs
one and three. And for the same reason, Appellant cannot show
that the Tax Court's failure to consider equitable tolling sua
sponte was a misstep that "seriously impaired the fairness,
integrity or public reputation of the judicial proceedings," as
required under prong four. Triantos, 91 F.4th at 563.
Having addressed these threshold issues, we now turn to
the jurisdictional analysis.
2. I.R.C. § 6213(a)
Before the Supreme Court issued opinions focusing more
keenly on the test to identify a statutory jurisdictional
requirement, the Tax Court and numerous circuit courts considered
§ 6213(a)'s filing deadline to be a jurisdictional limit on the
Tax Court's power to adjudicate deficiency proceedings.8 That
jurisdictional), and Allen v. Comm'r, No. 22-12537, 2022 WL
17825934, at *2 (11th Cir. Dec. 21, 2022) (per curiam)
(unpublished) (same).
8 See Hallmark Rsch. Collective v. Comm'r, 159 T.C. 126,
155-60 (2022); see also Organic Cannabis Found., LLC v. Comm'r,
962 F.3d 1082, 1092 (9th Cir. 2020) (acknowledging the Ninth
Circuit had "consistently adopted a jurisdictional reading of
[§ 6213(a)] . . . for more than 80 years"); Patmon & Young Pro.
Corp. v. Comm'r, 55 F.3d 216, 217 (6th Cir. 1995); Keado v. United
States, 853 F.2d 1209, 1212, 1218-19 (5th Cir. 1988); Pugsley v.
- 19 -includes us: in Ferré v. Commissioner, 718 F.2d 6 (1st Cir. 1983),
we summarily agreed with the Tax Court's dismissal of an untimely
petition because "the statute [is] jurisdictional." Id. at 7; see
also Hansen v. Comm'r, 201 F.3d 427, 1998 WL 1247113, at *1 (1st
Cir. July 1, 1998) (per curiam) (unpublished table decision);
Athens Pizza of Jaffrey, Inc. v. Comm'r, 134 F.3d 361, 1998 WL
42182, at *1 (1st Cir. Feb. 3, 1998) (per curiam) (unpublished
table decision).
"As a general rule, newly constituted panels in a
multi-panel circuit are bound by prior panel decisions closely on
point." United States v. Rodríguez, 527 F.3d 221, 224 (1st Cir.
2008). This rule, known as the law-of-the-circuit doctrine, would
ordinarily require affirmance of the Tax Court's order in this
case. We may, however, depart from the law of the circuit when
the prior case "is contradicted by controlling authority,
subsequently announced," or when "authority that postdates the
original decision, although not directly controlling, nevertheless
offers a sound reason for believing that the former panel, in light
of fresh developments, would change its collective mind." United
States v. López, 890 F.3d 332, 340 (1st Cir. 2018) (quoting United
States v. Pires, 642 F.3d 1, 9 (1st Cir. 2011)).
Comm'r, 749 F.2d 691, 692 (11th Cir. 1985); Andrews v. Comm'r, 563
F.2d 365, 366 (8th Cir. 1977); Foster v. Comm'r, 445 F.2d 799, 800
(10th Cir. 1971).
- 20 -The second exception applies here. In Boechler, P.C. v.
Commissioner, 596 U.S. 199 (2022), the Supreme Court continued its
ongoing "endeavor[] 'to bring some discipline' to use of the
jurisdictional label." Id. at 203 (quoting Henderson v. Shinseki,
562 U.S. 428, 435 (2011)). As part of that endeavor, the Court
then held that a filing deadline contained elsewhere in the Tax
Code was not jurisdictional. Id. at 211 (holding that I.R.C.
§ 6330(d)(1) is "an ordinary, nonjurisdictional deadline"). The
next year, the Court reaffirmed that "if a decision simply states
that the court is dismissing 'for lack of jurisdiction' when some
threshold fact has not been established, it is understood as a
drive-by jurisdictional ruling that receives no precedential
effect." Wilkins v. United States, 598 U.S. 152, 160 (2023)
(citation modified); accord Riley v. Bondi, 606 U.S. 259, 274
(2025) (noting the Court's "pattern of recent decisions shows that
[it] will not categorize a provision as 'jurisdictional' unless
the signal is exceedingly strong"). Ferré described § 6213(a) as
jurisdictional "without elaboration," and nothing in the decision
"turn[ed] on that characterization." Wilkins, 598 U.S. at 877
(first quoting Henderson, 562 U.S. at 437; then quoting Arbaugh v.
Y & H Corp., 546 U.S. 500, 512 (2006)). Thus, these intervening
Supreme Court decisions offer a sound reason to believe the Ferré
panel would "change its collective mind." López, 890 F.3d at 340
- 21 -(quoting Pires, 642 F.3d at 9). We now consider whether
§ 6213(a)'s filing deadline is jurisdictional or procedural.
It is textbook law that "jurisdictional requirements
mark the bounds of a court's adjudicatory authority," and as such,
they "cannot be waived or forfeited, must be raised by courts sua
sponte," and do "not allow for equitable exceptions." Boechler,
596 U.S. at 203 (citation modified). By contrast, "procedural
requirements" do not restrict a court's power, but "simply instruct
parties to take certain procedural steps at certain specified
times" to facilitate "the orderly process of litigation." Id.
(citation modified); see also Henderson, 562 U.S. at 435 (referring
to such requirements as "claim-processing" rules). The Supreme
Court has instructed that a procedural rule may be
"treat[ed] . . . as jurisdictional only if Congress 'clearly
states' that it is." Boechler, 596 U.S. at 203 (quoting Arbaugh,
546 U.S. at 515); accord United States v. Wong, 575 U.S. 402, 409
(2015) ("[T]he Government must clear a high bar to establish that
a statute of limitations is jurisdictional."). And the Court has
further emphasized that "in applying that clear statement rule,"
it has "made plain that most time bars are nonjurisdictional."
Wong, 575 U.S. at 410.
When determining whether a filing deadline is
jurisdictional or procedural, we look to the "traditional tools of
statutory construction." Boechler, 596 U.S. at 203 (quoting Wong,
- 22 -575 U.S. at 410). Those tools include the statutory text,
structure, and context, relevant historical treatment, and
legislative history. See Wong, 575 U.S. at 410, 412; see also
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161-68 (2010) (first
discussing the text, structure, and context "approach" from
Arbaugh and applying it to a provision of the Copyright Act, then
stating that consideration of relevant historical treatment is
"consistent" with that approach).
Thus, we begin our analysis with the text and structure
of § 6213(a), which contains five sentences. The relevant portions
of the first four sentences, which bear on the jurisdictional
question, provide:
Within 90 days, or 150 days if the notice is
addressed to a person outside the United
States, after the notice of
deficiency . . . is mailed . . . , the
taxpayer may file a petition with the Tax
Court for a redetermination of the
deficiency. . . . [N]o assessment of a
deficiency . . . and no levy or proceeding in
court for its collection shall be made, begun,
or prosecuted . . . until the expiration of
such 90-day or 150-day period . . . nor, if a
petition has been filed with the Tax Court,
until the decision of the Tax Court has become
final. Notwithstanding the provisions of
section 7421(a), the making of such assessment
or the beginning of such proceeding or
levy . . . may be enjoined by a proceeding in
the proper court, including the Tax Court, and
a refund may be ordered by such court . . . .
The Tax Court shall have no jurisdiction to
enjoin any action or proceeding or order any
refund under this subsection unless a timely
- 23 -petition for a redetermination of the
deficiency has been filed . . . .9
I.R.C. § 6213(a).
As the text shows, the first sentence of § 6213(a) sets
out a filing deadline directed to taxpayers. The Supreme Court
has "repeatedly found that filing deadlines . . . are not
jurisdictional" when they "impose[] requirements on litigants, not
the courts." Riley, 606 U.S. at 276-77. Further, the first
sentence "does not speak in jurisdictional terms or refer in any
way to the jurisdiction of" the Tax Court. Wong, 575 U.S. at 411
(quoting Arbaugh, 546 U.S. at 515); accord Sebelius v. Auburn Reg'l
Med. Ctr., 568 U.S. 145, 154 (2013) (explaining that similarly
permissive language "does not speak in jurisdictional terms"
(quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394
(1982))). Rather, it reads like an "ordinary, run-of-the-mill
statute of limitations." Wong, 575 U.S. at 411 (quoting Holland
v. Florida, 560 U.S. 631, 647 (2010)).
In contrast to the first three sentences of § 6213(a),10
the fourth sentence speaks in express jurisdictional terms. It
9The fifth sentence provides that a petition filed by the
last date specified in the notice of deficiency "shall be treated
as timely filed." I.R.C. § 6213(a). We return to that sentence
when we consider equitable tolling in Section II.C, infra.
10The second sentence restricts the IRS's ability to assess
and collect a deficiency during the specified period and, if a
petition is filed, until the Tax Court's decision is final. I.R.C.
§ 6213(a). The third sentence authorizes a court, including the
Tax Court, to enjoin an assessment, levy, or collection proceeding
- 24 -explicitly conditions the Tax Court's jurisdiction to enjoin an
assessment, levy, or collection proceeding, or to order a refund
under § 6213(a), on the filing of a timely petition. I.R.C.
§ 6213(a). Thus, the fourth sentence makes clear that "Congress
knew how to limit the scope of the Tax Court's jurisdiction."
Culp, 75 F.4th at 202. But Congress did not limit the Tax Court's
power to hear untimely petitions in this same sentence, or anywhere
else in § 6213(a). Additionally, the jurisdictional provision's
structural separation in the fourth sentence from the filing
deadline in the first sentence lends further support to a
nonjurisdictional interpretation. See Wong, 575 U.S. at 411 ("This
Court has often explained that Congress's separation of a filing
deadline from a jurisdictional grant indicates that the time bar
is not jurisdictional.").
Finally, the statutory context reinforces a
nonjurisdictional reading of § 6213(a)'s filing deadline. Tax
Code § 6214(a) provides that the Tax Court "shall have jurisdiction
to redetermine the correct amount of [a] deficiency," and
§ 6512(b)(1) provides that if the Tax Court determines that a
taxpayer made an overpayment of tax, it "shall have jurisdiction
to determine the amount of such overpayment." But again,
§ 6213(a)'s jurisdictional language in the fourth sentence speaks
begun while those restrictions are in force, and to order a refund
of any amount collected during that prohibited period. Id.
- 25 -only to specific remedies -- the power to enjoin an assessment,
levy, or collection proceeding, and the power to order a refund of
amounts collected during the prohibited period. See Boechler, 596
U.S. at 208 (noting "the prospect that § 6330(e)(1) deprives the
Tax Court of authority to issue an injunction in a subset of
appeals . . . does not carry the Commissioner over th[e] line");
see also Buller v. Comm'r, 160 F.4th 266, 269 (2d Cir. 2025)
(observing that Congress has "expressly conditioned the Tax
Court's jurisdiction on the timely filing of a petition" in other
provisions of the Tax Code (citation modified)).
This reading of § 6213(a) accords with the Supreme
Court's decision in Boechler. In that case, the Court examined
another provision in the Tax Code, § 6330(d)(1), which
states: "The person may, within 30 days of a determination under
this section, petition the Tax Court for review of such
determination (and the Tax Court shall have jurisdiction with
respect to such matter)." The Court began its analysis with the
text, reasoning that the phrase "such matter" lacks a clear
antecedent. Boechler, 596 U.S. at 204-05. Accordingly, the Court
explained, "[w]here multiple plausible interpretations
exist -- only one of which is jurisdictional -- it is difficult to
make the case that the jurisdictional reading is clear." Id. at
205. It also emphasized the linguistic divide in § 6330(d)(1).
While the filing deadline describes what a taxpayer "may" do, the
- 26 -parenthetical grant of jurisdiction describes what the Tax Court
"shall" do. Id. at 205-06. Thus, even with the filing deadline
and jurisdictional grant in the same sentence, the Court held that
Congress had not clearly made the deadline jurisdictional because
there was no "clear tie between the deadline and the jurisdictional
grant." Id. at 207.
Similarly, we ascertain no "clear tie" here between
§ 6213(a)'s filing deadline and the Tax Court's jurisdiction to
redetermine a deficiency. Id. Indeed, the structure of the
provision, with the filing deadline and the jurisdictional limit
in separate sentences, makes the case for a nonjurisdictional
reading even stronger than in Boechler. As articulated by the
Third Circuit, "[i]f the § 6330(d)(1) deadline in Boechler fell
short of being jurisdictional, § 6213(a)'s limit must as well."
Culp, 75 F.4th at 201; see also Oquendo v. Comm'r, 148 F.4th 820,
831-32 (6th Cir. 2025) ("[Section] 6213(a)'s petition-filing
deadline text is even further removed from the realm of
jurisdictional certainty than the petition-filing deadline in
§ 6330(d)(1).").
In sum, the text and structure of § 6213(a), as well as
the broader context of the Tax Code, support our conclusion that
the filing deadline is, for jurisdictional purposes, "just a time
limit, nothing more." Harrow v. Dep't of Def., 601 U.S. 480, 485
(2024) (citation modified). We thus join the Second, Third, and
- 27 -Sixth Circuits in holding that § 6213(a)'s filing deadline is
nonjurisdictional. See Buller, 160 F.4th at 267; Culp, 75 F.4th
at 198; Oquendo, 148 F.4th at 833.
3. The IRS's Arguments
The IRS resists this conclusion, arguing "[l]ongstanding
precedent holds that § 6213(a)'s deadline is jurisdictional." The
IRS acknowledges that the Supreme Court "has never directly
addressed" the question, but still relies on Laing v. United
States, 423 U.S. 161 (1976), and U.S. ex rel. Girard Trust Co. v.
Helvering, 301 U.S. 540 (1937), for the proposition that the Court
"has repeatedly suggested that meeting § 6213(a)'s requirements is
a prerequisite to Tax Court jurisdiction." But Laing said only
that a notice of deficiency is a jurisdictional prerequisite to a
Tax Court redetermination suit,11 and Girard Trust merely
recognized that the Tax Board's authority in a deficiency
proceeding is limited to determining deficiencies or overpayments
upon a taxpayer's petition. See 423 U.S. at 165 n.4; 301 U.S. at
11As implied by our conclusion in Section II.A, supra, a
taxpayer need not receive "actual notice" for a notice of
deficiency to be sufficient if the notice was sent to the
taxpayer's last known address. I.R.C. §§ 6212(b), 6901(g); see,
e.g., Niemela v. United States, 995 F.2d 1061, 1993 WL 198171, at
*2 n.3 (1st Cir. June 11, 1993) (per curiam) (unpublished table
decision); Armstrong v. Comm'r, 15 F.3d 970, 974 (10th Cir. 1994)
("A notice of deficiency is valid, even if it is not received by
the taxpayer, if it is mailed to the taxpayer's 'last known
address.'" (quoting I.R.C. § 6212(b)(1))).
- 28 -542. They say nothing about whether the timing of filing that
petition limits the Tax Court's adjudicatory authority.
That leaves the IRS with circuit court opinions. As to
this Circuit, our prior cases neither analyzed the jurisdictional
question as a matter of statutory interpretation, nor applied the
"clear statement" rule. See Ferré, 718 F.2d at 7; Hansen, 1998 WL
1247113, at *1; Athens Pizza, 1998 WL 42182, at *1. Similarly,
older decisions from other circuits also reflect the abandoned
practice, which Supreme Court precedent now forbids, of summarily
concluding that filing deadlines are jurisdictional. See, e.g.,
Stebbins' Est. v. Helvering, 121 F.2d 892, 893-94 (D.C. Cir. 1941).
The IRS points to three more recent opinions in Organic Cannabis
Foundation, LLC v. Commissioner, 962 F.3d 1082 (9th Cir. 2020),
Tilden v. Commissioner, 846 F.3d 882 (7th Cir. 2017), and Allen v.
Commissioner, No. 22-12537, 2022 WL 17825934 (11th Cir. Dec. 21,
2022) (unpublished). Of these cases, Allen, an unpublished
decision, did not undertake a textual and structural analysis, and
Organic Cannabis and Tilden both predate the Supreme Court's
decision in Boechler. Their persuasive force is, therefore, de
minimis, and they do not change the outcome of this case.
The IRS, however, is not done. It contends that the
text, context, and historical treatment of § 6213 make a "clear
statement" that the deadline is jurisdictional. Though we have
already conducted our own text, structure, and context analysis
- 29 -above, see Section II.B.2, we will explain why we disagree with
each of the IRS's arguments.
We begin with the text. Reminding us that Congress need
not "incant magic words," per Boechler, 596 U.S. at 203 (citation
omitted), the IRS contends that Congress put the Tax Court's
jurisdictional grant and the petition deadline in the "same
sentence" and "inextricably bound them." We think this
interpretation is a stretch. A procedural requirement "does not
become jurisdictional simply because it is placed in a section of
a statute that also contains jurisdictional provisions." Id. at
206-07 (quoting Auburn, 568 U.S. at 155). And under the clear
statement rule, "it is insufficient that a jurisdictional reading
is 'plausible,' or even 'better,' than nonjurisdictional
alternatives." MOAC Mall Holdings, LLC v. Transform Holdco LLC,
598 U.S. 288, 298 (2023) (quoting Boechler, 596 U.S. at 206).
Accordingly, even if we agreed with the IRS that § 6213(a)'s filing
deadline could be read as jurisdictional, that would work against
it: if a statute can reasonably be read as jurisdictional or
nonjurisdictional, then it does not clearly state that the filing
deadline is jurisdictional. See Boechler, 596 U.S. at 205.
In the effort to convince us that § 6213(a) contains an
implicit jurisdictional grant, the IRS asserts that § 6214(a) does
not contain the grant of jurisdiction. That provision, titled
"Jurisdiction as to increase of deficiency, additional amounts, or
- 30 -additions to the tax," states that "the Tax Court shall have
jurisdiction to redetermine the correct amount of the deficiency
even if the amount so redetermined is greater than the amount of
the deficiency." I.R.C. § 6214(a). According to the IRS, the
provision's "contemplation of a greater amount than is asserted in
the notice of deficiency makes plain that it is an expansion of
the Tax Court's existing jurisdiction over a redetermination of
the original amount." But even if we accept the IRS's reading of
§ 6214(a), however, it does not follow that § 6213(a) contains the
underlying jurisdictional grant, much less that its filing
deadline limits that jurisdiction.12
Thus, we turn to statutory context. The IRS contends
that § 6213(a)'s "unique role in our scheme of administrative
collection shows that the deadline limits the Tax Court's power."
It points to a "plethora of other deadlines" which link back to
§ 6213(a)'s filing deadline, such as the date when the IRS may
assess a deficiency, see I.R.C. § 6213(c), and the statute of
limitations for collections, see I.R.C. § 6502. It also points to
provisions which "insulate Tax Court decisions from collateral
attack." See I.R.C. §§ 6512(a), 7422(e). These provisions,
12 The IRS's reliance on Hallmark Research Collective v.
Commissioner, 159 T.C. 126 (2022), does not salvage this argument,
as the Tax Court's interpretation of the Tax Code does not bind
this Court. See Loper Bright Enters. v. Raimondo, 603 U.S. 369,
412 (2024).
- 31 -according to the IRS, "operate[] like a Jenga tower of pieces
stacked on one another," and the tower will "crumble" if the filing
deadline is not jurisdictional. Finally, as "one of the most
cogent examples," the IRS points to I.R.C. § 7459(d). That
provision generally treats a dismissal, other than one for lack of
jurisdiction, as a decision that the deficiency is equal to the
amount determined by the IRS and directs the Tax Court to enter an
order specifying that amount (unless the court cannot determine it
from the record). Id. Such a decision may preclude the taxpayer
from challenging that amount in a later refund suit. Therefore,
the argument goes, holding that § 6213(a)'s filing deadline is
nonjurisdictional will harm late-filing taxpayers because they
would not be able to file a refund suit.13
These provisions show that § 6213(a)'s filing deadline
has consequences elsewhere in the Tax Code's deficiency,
assessment, and refund scheme. Nevertheless, at the risk of
sounding like a broken record, the "clear statement" rule demands
Amicus, the Center for Taxpayer Rights, argues that the IRS
13
misreads § 7459(d) and lays out an alternative interpretation
based on the provision's legislative history and the interplay
between § 6213(a) and § 6512(a). Because we need not interpret
§ 7459(d) to resolve this appeal, we decline to do so today.
Furthermore, the Third Circuit has observed that the
"theoretical" scenario held out by the IRS (wherein a taxpayer
files a late petition which gets dismissed, pays the disputed tax,
files for a refund, has that claim denied, and then files a refund
suit in district court to recover the paid tax) "seems seldom, if
ever, to occur." Culp, 75 F.4th at 202.
- 32 -more. Boechler, 596 U.S. at 206. That remains true "even when
the time limit is important (most are)." Wong, 575 U.S. at 410;
see Oquendo, 148 F.4th at 832.
Finally, the IRS cites United States v. Wong, 575 U.S.
402 (2015), and Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154
(2010), for the proposition that we should look to the historical
treatment of § 6213(a). It notes that Congress repeatedly
reenacted and amended § 6213(a) and its predecessors while leaving
the operative language prescribing the filing deadline essentially
unchanged, all against a backdrop of lower court decisions treating
the deadline as jurisdictional. The IRS further argues that
Congress's 1998 amendment of § 6213(a), together with the
accompanying conference report, are evidence of Congress's
understanding that the filing deadline was jurisdictional.
Although historical treatment is relevant, the lower
court decisions on which the IRS relies largely predate the Supreme
Court's modern clear statement framework, and they do not provide
a clear indication that the filing deadline is jurisdictional.
See Boechler, 596 U.S. at 208. As to the 1998 amendment, it did
not expressly tie § 6213(a)'s filing deadline to the Tax Court's
jurisdiction to redetermine a deficiency. It only added a safe
harbor treating a petition filed by the date stated in the notice
of deficiency as timely. Moreover, the conference report's
description of then-prevailing law does not supply the clear
- 33 -statement otherwise absent from the statute's text, structure, and
context. Cf. Shannon v. United States, 512 U.S. 573, 583-84 (1994)
("[C]ourts have no authority to enforce a principle gleaned solely
from legislative history that has no statutory reference point."
(citation omitted)); see also FS Credit Opportunities Corp. v.
Saba Cap. Master Fund, Ltd., 146 S. Ct. 1546, 1558 (2026)
("Congress expresses itself as a body through the text it enacts;
the views of [congressional committees] are not the law.").
C. Equitable Tolling
We now consider the final issue in this appeal: whether
courts may toll § 6213(a)'s filing deadline for equitable reasons.
Appellant maintains that § 6213(a) is subject to equitable
tolling, and that the facts of this case demonstrate its right to
tolling because, inter alia, it filed its petition within fifteen
days of receiving the notice of transferee liability. If Appellant
is correct, then remand would be necessary for the Tax Court to
consider whether the facts of this case justify equitable tolling.
The IRS counterargues, based on the text, structure, and statutory
context, that even if § 6213(a) is nonjurisdictional, it is still
"mandatory," meaning it is "not susceptible" to equitable tolling.
Enbridge Energy, LP v. Nessel, 146 S. Ct. 1074, 1081 (2026)
(quoting Nutraceutical Corp. v. Lambert, 586 U.S. 188, 192 (2019)).
If the IRS is correct, then Appellant's failure to file its
petition within ninety days would foreclose any relief in the Tax
- 34 -Court. As already previewed, we think the IRS has the right of
this issue.
A "nonjurisdictional limitations period[] [is]
presumptively subject to equitable tolling." Boechler, 596 U.S.
at 209 (citing Irwin v. Dep't of Veterans Affs., 498 U.S. 89, 95-96
(1990)). Such equitable tolling "pauses the running of, or
'tolls,' a statute of limitations when a litigant has pursued
[their] rights diligently but some extraordinary circumstance
prevents [them] from bringing a timely action." Lozano v. Montoya
Alvarez, 572 U.S. 1, 10 (2014). In other words, equitable tolling
"effectively extends an otherwise discrete limitations period set
by Congress." Id.
The presumption of equitable tolling, however, "can be
rebutted" where tolling is "inconsistent with the statutory
scheme" at issue. Arellano v. McDonough, 598 U.S. 1, 6-7 (2023).
A nonjurisdictional rule may still be mandatory "where 'Congress's
choice is evident,' where tolling would be 'inconsistent with the
text of the relevant statute,' and where there is 'good reason to
believe that Congress did not want the equitable tolling doctrine
to apply.'" Enbridge Energy, 146 S. Ct. at 1084 (citations
omitted). In making that determination, as with the jurisdictional
question, we look to a provision's text, structure, and context.
Id. at 1079.
- 35 -With these legal principles as background, we return to
the relevant text of I.R.C. § 6213(a):
Within 90 days, or 150 days if the notice is
addressed to a person outside the United
States, after the notice of
deficiency . . . is mailed (not counting
Saturday, Sunday, or a legal holiday in the
District of Columbia as the last day), the
taxpayer may file a petition with the Tax
Court for a redetermination of the
deficiency. . . . Any petition filed with the
Tax Court on or before the last date specified
for filing such petition by the Secretary in
the notice of deficiency shall be treated as
timely filed.
I.R.C. § 6213(a). As Appellant points out, the provision uses
permissive language, and it is neither "unusually emphatic" nor
"highly detailed [and] technical." United States v. Brockamp, 519
U.S. 347, 350 (1997). Additionally, the standard ninety-day
deadline is not long, which Appellant suggests renders the
presumption of equitable tolling stronger. See, e.g., Boechler,
596 U.S. at 209 (noting I.R.C. § 6330(d)(1)'s thirty-day deadline
is "short"); Holland, 560 U.S. at 647 (similarly noting a one-year
statute of limitations is "not particularly long"). These
considerations, though noted, are not dispositive.
Per the plain language of § 6213(a), Congress itself
already granted the three explicit exceptions and adjustments in
that subsection, which provides: (1) for a 150-day deadline "if
the notice is addressed to a person outside the United States,"
(2) that a Saturday, Sunday, or legal holiday in the District of
- 36 -Columbia cannot be the last day of the limitations period, and
(3) that petitions filed by the date listed on the notice are
"treated as timely filed." Thus, contrary to Appellant's arguments
otherwise, the text of § 6213(a) "already reflect[s] equitable
considerations." Enbridge Energy, 146 S. Ct. at 1083 (citation
modified). These exceptions are significant, as the Supreme Court
"has repeatedly held that an 'explicit listing of exceptions,' set
forth in a detailed manner, strongly indicates 'that Congress did
not intend courts to read other unmentioned, open-ended,
"equitable" exceptions into the statute that it wrote.'" Id. at
1082 (quoting Brockamp, 519 U.S. at 352).
The history of § 6213(a)'s filing deadline reinforces
that point. Cf. Wong, 575 U.S. at 410 ("Neither the text nor the
context nor the legislative history indicates . . . that Congress
meant to enact something other than a standard time bar."). The
original deadline was sixty days, and the Board of Tax Appeals
held that it could not extend that period even though the sixtieth
day was a Sunday and the sixty-first day was a holiday. See Appeal
of Satovsky, 1 B.T.A. 22, 24-25 (1924). Congress then added
statutory exceptions and adjustments over time: in 1926, Sunday
was excluded as the last day; in 1934, the filing period was
extended to ninety days, and legal holidays in the District of
Columbia were excluded. Eight years later, the 150-day period for
notices addressed abroad was added in 1942; Saturday was excluded
- 37 -as the last day in 1945; and, in 1998, Congress required deficiency
notices to state the last date for filing and treated petitions
filed by that date as timely. See Hallmark Rsch. Collective, 159
T.C. at 142-43; see also I.R.C. § 6212 note; id. § 6213(a).
We must also look beyond § 6213(a) to the wider statutory
context. Enbridge Energy teaches that we may not "laser focus" on
the single provision containing the deadline, but rather, must
further consider whether equitable tolling would be "incongruent
with the statutory scheme" as a whole. 146 S. Ct. at 1085 (citation
modified). With this directive in mind, additional exceptions and
adjustments to § 6213(a)'s ordinary ninety-day deadline elsewhere
in the Tax Code "drive home the point." Id. at 1083. For example,
§ 6213(e), for certain excise taxes, suspends the "running of the
time prescribed by subsection (a) for filing a petition . . . for
any period during which [the IRS] has extended the time allowed
for making correction." Section 6213(f) similarly suspends the
filing period during the time in which a debtor is prohibited, by
reason of a Title 11 case, from filing a Tax Court petition, and
for sixty days thereafter. Other Tax Code provisions modify filing
deadlines when "a filing location is inaccessible or otherwise
unavailable," I.R.C. § 7451(b)(1), a service member is in a combat
zone or contingency operation, id. § 7508(a)(1)(C), and a taxpayer
is affected by a federally declared disaster, significant fire, or
terroristic or military action, id. § 7508A(a)(1). Additionally,
- 38 -§ 7502(a) treats timely mailing as timely filing. These specific
exceptions and adjustments reflect the principle that tax law is
"not normally characterized by case-specific exceptions reflecting
individualized equities." Brockamp, 519 U.S. at 352-53. But see
Boechler, 596 U.S. at 209-11 (distinguishing I.R.C. § 6330(d)(1)
from the provision at issue in Brockamp and holding that it may be
equitably tolled in appropriate circumstances).14
Still, Appellant contends the statutory context does not
rebut the presumption of equitable tolling, pointing to Tax Code
§ 7422(e) and § 6512(a). Section 7422(e) coordinates a refund
suit that is already pending if the IRS later mails a notice of
deficiency, and § 6512(a) generally bars subsequent refund
litigation if a taxpayer has already filed a Tax Court petition
"within the time prescribed in section 6213(a)." Together, these
two provisions govern the interaction between refund litigation in
a district court (or the Court of Federal Claims) and deficiency
proceedings in the Tax Court. They do not, however, provide a
sensible reason to infer that § 6213(a) may be equitably tolled.
Rather, they reinforce that Congress tied the consequences of
deficiency and refund litigation to the filing period prescribed
by § 6213(a).
14 On remand from the Supreme Court, the Eighth Circuit
affirmed the Tax Court's non-application of equitable tolling to
the facts of the case. Boechler, P.C. v. Comm'r, No. 25-2620,
2026 WL 2293279, at *2 (8th Cir. Aug. 10, 2026) (per curiam).
- 39 -Therefore, because I.R.C. § 6213's text, structure, and
context provide good reason to believe that Congress made the
ordinary filing period mandatory except in the specific
circumstances it identified, we conclude that the filing deadline
may not be equitably tolled. The Jenga tower will stand.15
III.
We hold that the IRS satisfied the pertinent statutory
requirements when it mailed the notice of transferee liability to
the address on Appellant's most recent federal tax return, and
that the IRS exercised reasonable diligence in determining that
address. We further hold that I.R.C. § 6213(a)'s filing deadline
is nonjurisdictional. Finally, we hold that the same deadline is
mandatory and may not be equitably tolled. For the foregoing
reasons, the Tax Court's order of dismissal is affirmed.
15 We acknowledge that our conclusion on equitable tolling
departs from the decisions of the Second, Third, and Sixth Circuit
Courts of Appeals, which we joined as to the jurisdictional
analysis. Each of those decisions issued before the Supreme Court
decided Enbridge Energy, so those circuit courts did not have the
benefit of the Supreme Court's analysis in that case. See Culp,
75 F.4th at 203-04; Buller, 160 F.4th at 271; Oquendo, 148 F.4th
at 833-34.
- 40 -