David Myers v. Cmsnr. IRS ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2018 Decided July 2, 2019
No. 18-1003
DAVID T. MYERS,
APPELLANT
v.
COMMISSIONER OF INTERNAL REVENUE SERVICE,
APPELLEE
On Appeal from the Decision
of the United States Tax Court
Joseph A. DiRuzzo III argued the cause and filed the briefs
for appellant.
Carlton M. Smith was on the brief for amicus curiae The
Federal Tax Clinic of the Legal Services Center of Harvard
Law School in support of the appellant.
Janet A. Bradley, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the briefs were Joan
I. Oppenheimer and Bethany B. Hauser, Attorneys.
Before: HENDERSON and PILLARD, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
GINSBURG.
Opinion concurring in part and dissenting in part filed by
Circuit Judge HENDERSON.
GINSBURG, Senior Circuit Judge: The Internal Revenue
Service denied David T. Myers’s application for a
whistleblower award. Myers sought relief from the Tax Court,
which found his claim was untimely and dismissed it for lack
of jurisdiction. We hold first that this court has jurisdiction
over Myers’s appeal. We then reverse the Tax Court’s
dismissal and remand this case for further proceedings because,
although Myers’s petition was untimely, the filing period is not
jurisdictional and is subject to equitable tolling.
I. Background
In 2009 Myers filed an Application for Award of Original
Information (Form 211) with the Whistleblower Office of the
IRS. He alleged his former employer had intentionally
misclassified him and other employees as independent
contractors in order “to avoid paying workmen compensation,
health insurance, vacation time etc.,” and sought a monetary
award under 26 U.S.C. § 7623(b) of the Internal Revenue Code
for bringing to the Secretary’s attention “persons guilty of
violating the internal revenue laws,” id. § 7623(a).
In a letter dated March 13, 2013, the Whistleblower Office
denied Myers’s claim:
We have considered your application for an award
dated 08/17/2009. Under Internal Revenue Code
Section 7623, an award may be paid only if the
information provided results in the collection of
3
additional tax, penalties, interest or other proceeds. In
this case, the information you provided did not result
in the collection of any proceeds. Therefore, you are
not eligible for an award.
Although the information you submitted did not
qualify for an award, thank you for your interest in the
administration of the internal revenue laws.
On March 27, 2013 Myers sent a fax to the Whistleblower
Office stating, among other things, “I inexplicably received a
letter denying my claim.”
Myers continued to send correspondence regarding his
claim to the Whistleblower Office, which responded in four
more letters dated November 20, 2013; January 8, 2014;
February 24, 2014; and March 6, 2014. Other than the one
dated February 24, 2014, those letters were identical, stating,
in pertinent part:
We considered the additional information you
provided and determined your claim still does not
meet our criteria for an award. Our determination
remains the same despite the information contained in
your latest letter….
Although the information you submitted did not
qualify for an award, thank you for your interest in the
administration of the internal revenue laws.
The full text of all five letters is reproduced in the Appendix.
Myers alleges that following the March 2014 letter he
began corresponding “with various other Government
officials,” including then-IRS Chief Counsel William Wilkins,
4
“on account of his frustration with the Whistleblower Office.”
Myers v. Comm’r, 148 T.C. 438, 448 (2017).
On January 20, 2015 Myers mailed his pro se petition to
the Tax Court, asking it “to revisit the denial of [his] IRS
Whistleblower (W/B) claim ... that was inexcusably denied by
the IRS on 3/13/2013.” The IRS moved to dismiss Myers’s
petition for lack of jurisdiction on the ground that it was not
timely filed under 26 U.S.C. § 7623(b)(4). That provision
states:
Any determination regarding an award under
paragraph (1), (2), or (3) may, within 30 days of such
determination, be appealed to the Tax Court (and the
Tax Court shall have jurisdiction with respect to such
matter).
In October 2015, the Tax Court held an evidentiary
hearing on the IRS’s motion because the parties disputed
whether the IRS had sufficient evidence of having properly
mailed the determination letters to Myers. The Tax Court
ultimately concluded this issue was immaterial because actual
notice of the IRS’s adverse determination suffices to begin the
filing period. 148 T.C. 448. The Tax Court then found
Myers had actual notice “no later than April 11, 2014” — the
date of his first email to Wilkins — and on June 7, 2017 entered
an order dismissing Myers’s claim for lack of jurisdiction. Id.
at 441, 448-49.
On June 25, 2017, Myers filed a “Motion for
Reconsideration” in which he “ask[ed] the court to respectfully
reconsider their decision to dismiss the case for lack of
jurisdiction.” The Tax Court denied the motion on July 13,
2017. Myers thereafter appealed to the Tenth Circuit and
mailed the notice of appeal to the Tax Court on September 21,
5
2017 — 106 days after that court had entered its order
dismissing his case and 70 days after it had denied his motion
for reconsideration. Myers’s appeal was subsequently
transferred from the Tenth Circuit to this court.
The parties’ briefs did not raise any question concerning
our jurisdiction. Nonetheless, prior to oral argument we
directed the parties to file “supplemental briefs addressing
whether appellant’s notice of appeal was timely under Federal
Rule of Appellate Procedure 13.” Myers v. Comm’r, No. 18-
1003 (D.C. Cir. November 14, 2018) (order).
II. This Court’s Jurisdiction
We begin, as we must, with the question of our own
jurisdiction over this appeal. See, e.g., Sierra Club v. U.S.
Dep’t of Agric., 716 F.3d 653, 656 (D.C. Cir. 2013). If Myers’s
appeal was not timely and if the time limit is “mandatory and
jurisdictional,” Bowles v. Russell, 551 U.S. 205, 209 (2007),
then this court lacks jurisdiction over his claim. The timeliness
of Myers’s notice of appeal depends upon the effect of his
motion for reconsideration.
Federal Rule of Appellate Procedure 13(a)(1)(A) and 26
U.S.C. § 7483 each provides that an appeal from the Tax Court
to the court of appeals must be filed with the Tax Court within
90 days after the entry of the Tax Court’s decision. Because
Myers mailed his notice of appeal 106 days after the Tax
Court’s dismissal order, it would not be timely under those
provisions. That mailing, however, occurred only 70 days after
the Tax Court had denied his motion for reconsideration. Rule
13(a)(1)(B) states:
If, under Tax Court rules, a party makes a timely
motion to vacate or revise the Tax Court’s decision,
6
the time to file a notice of appeal runs from the entry
of the order disposing of the motion or from the entry
of a new decision, whichever is later. (Emphasis
added)
Myers apparently did not make a “motion to vacate or
revise” the Tax Court’s decision, which would be brought
under Tax Court Rule 162. Instead, because Myers styled his
filing as a “motion for reconsideration,” the Tax Court treated
it as a “motion for reconsideration of findings or opinion”
under Tax Court Rule 161; that type of motion is not mentioned
in Rule 13. It follows that Myers’s notice of appeal is timely if
the 90-day period to appeal did not begin until the Tax Court
denied his motion for reconsideration. The question before us,
then, is whether a motion for reconsideration restarts the clock,
as described in Rule 13(a)(1)(B), even though the Rule does
not explicitly so state. The IRS and Myers agree that it does,
relying principally upon the Ninth Circuit’s reasoning in
Nordvik v. Commissioner, 67 F.3d 1489, 1493-94 (1995)
(reversing Trohimovich v. Commissioner, 776 F.2d 873, 875
(1985)). *
*
Although no court other than the Ninth Circuit appears to have a
precedential decision on this issue, at least three other circuits have
commented upon it. The Tenth Circuit stated in a dictum, “this court
has never given tolling effect in a tax appeal to a motion for
reconsideration, which is not mentioned in Rule 13.” Mitchell v.
Comm’r, 283 F. App’x 641, 644 (2008). The court did not, however,
rely upon that ground for rejecting the appellant’s notice of appeal
because his motion for reconsideration was itself untimely. In
Spencer Medical Associates v. Commissioner, 155 F.3d 268, 270
(1998), the Fourth Circuit assumed Nordvik was correct but did not
so hold because it similarly found the taxpayer’s motion for
reconsideration was itself untimely. Finally, in an unpublished
7
We agree with the parties. We do not read the reference
in Rule 13(a)(1)(B) to a “motion to vacate or revise” to refer
solely to motions brought under Tax Court Rule 162. Any
post-decisional motion that “places the correctness of the
judgment in question” is the “functional equivalent” of a
motion to vacate or revise and should be treated as such for the
purpose of determining timeliness. Rados v. Celotex Corp.,
809 F.2d 170, 171 (2d Cir. 1986) (cleaned up) (treating a
motion for reconsideration as a motion to amend under Fed. R.
Civ. P. 59(e) for the purpose of determining appellate
jurisdiction).
The Supreme Court has made clear that, in general, “[a]
timely motion for reconsideration ... ‘renders an otherwise final
decision of a district court not final’ for purposes of appeal.”
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 717 (2019)
(quoting United States v. Ibarra, 502 U.S. 1, 6 (1991)); see also
Dep’t of Banking, Neb. v. Pink, 317 U.S. 264, 266 (1942) (“A
timely petition for rehearing tolls the running of the [appeal]
period because it operates to suspend the finality of the state
court’s judgment”). The rationales behind this rule are two-
fold. First, it “giv[es] district courts the opportunity promptly
to correct their own alleged errors,” United States v. Dieter,
429 U.S. 6, 8 (1976), which “prevents unnecessary burdens
being placed on the courts of appeals,” Ibarra, 502 U.S. at 5.
And, because “a notice of appeal filed before the disposition of
a post trial motion ... would not embrace objections to the
denial of the motion, it is obviously preferable to postpone the
notice of appeal until after the motion is disposed of.” Fed. R.
App. P. 4(a)(4), advisory committee’s notes to 1979
decision, the Eighth Circuit agreed with the Ninth Circuit that a
timely motion for reconsideration restarts the time for appeal. See
Sanderson v. Comm’r, 231 F. App’x 534, 535 (8th Cir. 2007).
8
amendments. This reasoning applies with equal force to
decisions of the Tax Court, which we review “in the same
manner and to the same extent as decisions of the district courts
in civil actions tried without a jury.” 26 U.S.C. § 7482(a)(1);
cf. InverWorld, Ltd. v. Comm’r, 979 F.2d 868, 872 (D.C. Cir.
1992) (applying “general principles familiar from appeals of
district court decisions” to determine whether the Tax Court’s
decision was final).
Illustrating the strength of this general rule, the Supreme
Court in United States v. Healy, a criminal case in which the
district court had dismissed the indictment, held “the 30-day
period [for appeal] begins to run from ... the denial of [the
Government’s] petition for rehearing,” even though Federal
Rule of Criminal Procedure 37(a)(2) provides only that the
time for appeal restarts upon a defendant’s “motion for a new
trial or in arrest of judgment.” 376 U.S. 75, 78, 79 n.3 (1964)
(quoting the 1963 version of the Rules). The Court drew no
negative inference from the silence of the rule with regard to
the Government’s motion. Id. at 79-80 (stating that the Rule
“sheds no light on the relevance of a petition for rehearing”).
The Court therefore concluded it was “constrained to read these
rules as consistent with a traditional and virtually unquestioned
practice” of treating rehearing petitions by the Government and
by the defense “as having the same effect on the permissible
time for seeking review” in “criminal, as well as civil,
litigation.” Id. Then, in Ibarra, the Supreme Court held a
“motion for reconsideration” had the same effect as a “petition
for rehearing” under Healy with regard to the time to appeal.
502 U.S. at 6.
So, too, here: Rule 13 is silent as to the effect of a motion
for reconsideration. Meanwhile, the Advisory Committee’s
Notes to the 1967 Adoption of the Rule explain that Rule 13(a)
simply “states the settled teaching of the case law,” which drew
9
no distinction between a motion for reconsideration and any
other post-judgment motion challenging the disposition.
Citing Robert Louis Stevenson Apts, Inc. v. Comm’r, 337 F.2d
681, 685 (8th Cir. 1964) (holding the time for appeal restarts
upon any motion that, if “granted, would ... necessitate[] the
Tax Court’s reversing its determination”), and Denholm &
McKay Co. v. Comm’r, 132 F.2d 243, 249 (1st Cir. 1942)
(explaining that a timely motion for reconsideration “retains
the case within the Board [of Tax Appeal]’s jurisdiction,” and
“[t]he decision does not become final until ... after the motion
is denied if it is denied”). In a decision predating those
referenced by the Advisory Committee, this court similarly
recognized that
[i]n the Federal courts the rule is well established that
... the filing of a petition for rehearing, or of a motion
for a new trial, will suspend the running of the period
within which an appeal may be taken, and that this
period then begins to run anew from the date on which
final action is taken on the petition or motion, whether
it be denied or granted. The rule as above stated
applies even though a statute fixes the time within
which appeal may be taken as a definite period from
the entry of judgment. This rule has been applied by
this court, as well as by other circuit courts of appeals,
to proceedings before the Board of Tax Appeals.
Saginaw Broad. Co. v. FCC, 96 F.2d 554, 558 (D.C. Cir. 1938)
(citations omitted) (emphasis added) (The Board of Tax
Appeals is the predecessor of the Tax Court). Considering
these authorities, we do not infer that the phrase a “motion to
vacate or revise” in Rule 13 excludes a motion for
reconsideration.
10
That the Federal Rules of Appellate Procedure “were not
adopted to set traps and pitfalls by way of technicalities for
unwary litigants,” Des Isles v. Evans, 225 F.2d 235, 236 (5th
Cir. 1955), further supports our conclusion. As Myers points
out, the Tax Court Rules “offer no substantive guidance as to
what differentiates the two motions.” Nor does the Tax Court’s
case law erect materially different standards for granting each
motion. Compare Seiffert v. Comm’r, 107 T.C.M. 1326
(2014) (“Motions to vacate or revise our decision are generally
not granted absent a showing of unusual circumstance or
substantial error, such as mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence, fraud or other
reasons justifying relief”) with Estate of Quick v. Comm’r, 110
T.C. 440, 441 (1998) (“Reconsideration under Rule 161 serves
the limited purpose of correcting substantial errors of fact or
law and allows the introduction of newly discovered evidence
that the moving party could not have introduced, by the
exercise of due diligence, in the prior proceeding”). As a result,
courts and litigants lack standards by which to determine
whether a filing is truly a motion to vacate or revise for the
purpose of starting the time for appeal. We will not adopt an
interpretation of Rule 13 that invites confusion and
inconsistency. Cf. Fed. R. App. P. 4(a)(4), advisory
committee’s notes to 1993 amendments (describing “the
difficulty” courts had previously encountered in “determining
whether a posttrial motion ... is a Rule 59(e) motion ... or a Rule
60 motion” when only the former tolled the time for appeal).
That the great majority of individual taxpayers proceed pro se
before the Tax Court exacerbates the potential for unfairness.
See James S. Halpern, What Has the U.S. Tax Court Been
Doing? An Update, 151 Tax Notes 1277, 1282 (2016).
For the foregoing reasons, we hold that although Myers
did not make a “motion to vacate or revise” under Tax Court
Rule 162, his timely motion for reconsideration under Tax
11
Court Rule 161 restarted the 90-day appeal period, just as a
motion to vacate or revise would have done. Myers’s notice of
appeal was therefore timely under Rule 13(a)(1)(B) and raises
no doubt about our jurisdiction. Consequently, we do not reach
the issue whether the 90-day appeal period is jurisdictional.
III. The Jurisdiction of the Tax Court
Having assured ourselves of our jurisdiction, we turn to
that of the Tax Court, which determined that Myers’s claim
was untimely under 26 U.S.C. § 7623(b)(4) and dismissed it
for lack of jurisdiction. On appeal, Myers contends that the
Tax Court erred in finding that his claim was untimely; in the
alternative, he argues that the filing period is not jurisdictional
and seeks equitable tolling.
This court “review[s] the decisions of the Tax Court ... in
the same manner and to the same extent as decisions of the
district courts in civil actions tried without a jury.” 26 U.S.C.
§ 7482(a)(1). Accordingly, we consider jurisdictional issues
de novo, including whether a filing was timely. See, e.g.,
Mobley v. CIA, 806 F.3d 568, 575 (D.C. Cir. 2015). In
addition, we reiterate that Myers proceeded pro se before the
Tax Court and note that this court “follows the general
principle that a document filed pro se is to be liberally
construed.” Hill v. Assocs. for Renewal in Educ., Inc., 897 F.3d
232, 236 (D.C. Cir. 2018) (cleaned up).
A. Whether Myers’s Petition was Untimely
It is undisputed that the 30-day period in § 7623(b)(4)
begins only once there has been a “determination” by the
Whistleblower Office. Myers therefore challenges the Tax
Court’s finding that his petition was not timely on two
accounts: First, the letters sent by the Whistleblower Office
12
“were so bereft of information as to not qualify as a
‘determination’ under Section 7623(b)(4)”; and second, he
lacked effective notice of the determination because the IRS
failed to show that it mailed the letters. We reject both
arguments and agree with the Tax Court that Myers’s petition
was not timely.
1. Whether Myers received an appealable
“determination”
The Tax Court concluded that “each of the five letters to
petitioner from the Whistleblower Office reflects an appealable
determination under section 7623(b)(4).” 148 T.C. 445.
Myers objects that the letters do not (1) “contain any
information regarding the value of [his] claim,” (2) explain
why he is not entitled to an award, or (3) tell him how and when
to petition the Tax Court.
As a preliminary matter, we note that we address Myers’s
claim on its merits, despite the IRS’s contention that Myers
forfeited these three objections by failing to raise them before
the Tax Court. Myers raised his lack of information about his
right to appeal at least twice in his briefs before the Tax Court,
stating, “the only problem is that not a single one of these letters
... inform the Petitioner where he could appeal the respondents
[sic] determination,” and “the respondent’s denial letter
determinations must also advise the W/B of their right to seek
judicial review ... and the respondent failed to comply with this
policy guideline on all five denial letters sent to the Petitioner!”
Because Myers was pro se, we believe this sufficed to preserve
the issue. Although Myers did not preserve his other two
objections, we exercise our discretion to resolve this
“straightforward legal question” that “both parties have fully
addressed ... on appeal.” Prime Time Int’l Co. v. Vilsack, 599
F.3d 678, 686 (D.C. Cir. 2010).
13
Turning to the merits, we agree with the Tax Court that
“written notice informing a claimant that the IRS has
considered information that he submitted and has decided
whether the information qualifies the claimant for an award”
suffices to constitute a “determination” for the purpose of
§ 7623(b)(4). 148 T.C. 443; see also Kasper v. Comm’r, 137
T.C. 37, 41 (2011). In order to assure that a claim is ripe for
review by the Tax Court, the determination need state only the
Whistleblower Office’s final decision. Here, the letters told
Myers “the information [he] submitted did not qualify for an
award”; that sufficed to give him his “ticket[] to the tax court,”
Laing v. United States, 423 U.S. 161, 206 (1976). There is no
requirement under § 7623(b)(4) or any other authority that a
“determination” contain any of the other information Myers’s
desires. †
Of course, we share the Tax Court’s concern that “the
consistent lack” of information in determination letters sent by
the Whistleblower Office about a claimant’s right to appeal
not only is inconsistent with [the IRS]’s practice in
many other areas where [its] jurisdiction is implicated
(in particular, deficiency cases, cases involving relief
from joint and several liability, and lien/levy cases),
but also ... can be prejudicial to claimants —
especially because there are only 30 days to appeal —
and the cause of much unnecessary confusion and
consternation in [its] adjudication of such cases.
†
Myers’s argument that the Whistleblower Office must include
information about the value of a claim is based in part upon Treasury
regulations 26 C.F.R. §§ 301.7623-1 and 301.7623-3. As the IRS
correctly points out, however, those regulations are effective only for
claims submitted on or after August 12, 2014 and are therefore
inapplicable here. §§ 301.7623-1(f), 301.7623-3(f).
14
148 T.C. 444 n.6. Nevertheless, we decline Myers’s
invitation to craft requirements out of whole cloth. In this case,
it was enough that the letters notified Myers of the
Whistleblower Office’s final decision on his claim.
2. Whether actual notice triggers the beginning of
the filing period
Myers next argues the IRS failed to “prove by direct
evidence the date and fact of mailing or personal delivery” of
its determination, as required by the Tax Court’s case law. 148
T.C. 446 (citing Kasper, 137 T.C. 45). The Government
does not dispute that there is insufficient direct evidence of
mailing in this case. Instead, it contends, as the Tax Court held,
that notice to a claimant is effective, and thus the 30-day period
commences, when the claimant receives actual notice “without
prejudicial delay and with sufficient time to file a petition.” Id.
at 446-47.
In Myers’s view, “[i]t is not the receipt of the
determination which creates the jurisdiction of the Tax Court,
but the Commissioner’s mailing of notice.” Putting aside
Myers’s incorrect assumption that § 7623(b)(4) is
jurisdictional — which we address below — we note that
neither the statute nor the applicable Treasury regulations
expressly requires mailing. Instead, the Tax Court’s rule in
Kasper responds to an evidentiary concern: because “the
Government is generally entitled to a rebuttable presumption
of delivery upon presentation of evidence of proper mailing,”
the Tax Court considered it inappropriate to rely upon
“evidence of standard practice” to establish proper mailing.
137 T.C. 44-45. Direct evidence of actual notice is an
adequate — indeed, superior — alternative to evidence of
mailing plus a presumption of delivery.
15
This result is consistent with our decision in Crum v.
Commissioner, in which the IRS had failed to mail the
deficiency notice to Crum’s “last known address,” as required
by 26 U.S.C. § 6212(b)(1). 635 F.2d 895, 901 (D.C. Cir. 1980)
(interpreting 26 U.S.C § 6213(a)). We therefore held the 90-
day period for filing a petition in the Tax Court began when the
petitioner received actual notice of the deficiency. Id. The
result is also consistent with the various cases Myers cites,
none of which passed upon the issue presented here. See, e.g.,
Weber v. Comm’r, 122 T.C. 258, 262-63 (2004) (holding the
filing period began to run from the date of mailing rather than
the taxpayer’s alleged receipt five months later); Allibone v.
Comm’r, 111 T.C.M. 1404 (2016) (rejecting the IRS’s
argument that a phone call established that the final
determination letter was mailed the same day).
In this case, Myers has admitted that he received multiple
determination letters from the Whistleblower Office. As he
does not claim he filed his petition for review with the Tax
Court within 30 days of receiving the notice those letters
provided, his petition was untimely.
B. Whether the 30-day Filing Period is Jurisdictional
Having agreed with the Tax Court’s conclusion that
Myers’s petition was not timely filed, we must now decide
whether that defect deprived the Tax Court of jurisdiction over
Myers’s petition. We hold that it did not.
The Supreme Court in recent years has “pressed a stricter
distinction between truly jurisdictional rules, which govern a
court’s adjudicatory authority, and nonjurisdictional claim-
processing rules, which do not.” Gonzalez v. Thaler, 565 U.S.
134, 141 (2012) (cleaned up). Key to our present decision, the
Court has “made plain that most time bars are
16
nonjurisdictional”; they are “quintessential claim-processing
rules which seek to promote the orderly progress of litigation,
but do not deprive a court of authority to hear a case.” United
States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632 (2015)
(cleaned up). Therefore, although the “Congress is free to
attach ... the jurisdictional label to a rule that we would prefer
to call a claim-processing rule,” Henderson v. Shinseki, 562
U.S. 428, 435 (2011), we treat a time bar as jurisdictional “only
if Congress has ‘clearly stated’ as much,” Kwai Fun Wong, 135
S. Ct. at 1632. See also Fort Bend Cty. v. Davis, No. 18-525,
slip op. at 10 (U.S. 2019) (“the Court has clarified that it would
leave the ball in Congress’ court”). The Supreme Court has
explained that this “clear statement requirement” is satisfied
only if the statute “expressly refers to subject-matter
jurisdiction or speaks in jurisdictional terms.” Musacchio v.
United States, 136 S. Ct. 709, 717 (2016) (cleaned up). It is
not enough, for instance, that a statute uses “mandatory
language.” Id.
Again, § 7623(b)(4) provides:
Any determination regarding an award under
paragraph (1), (2), or (3) may, within 30 days of such
determination, be appealed to the Tax Court (and the
Tax Court shall have jurisdiction with respect to such
matter).
The IRS contends this constitutes a “clear statement” because
the Congress “placed the jurisdictional language in the same
sentence and subsection as the time limit.” As our amicus
points out, however, the Supreme Court has explicitly rejected
“proximity-based arguments” to that effect. See Sebelius v.
Auburn Reg’l Med. Ctr., 568 U.S. 145, 155 (2013). In Auburn,
the Court dealt with 42 U.S.C. § 1395oo, which lays out the
17
requirements for Medicare providers to bring reimbursement
disputes before an administrative review board:
(a) Any provider of services … may obtain a hearing
… if —
(1) such provider is dissatisfied with a final
determination of the organization
serving as its fiscal intermediary … or is
dissatisfied with a final determination of
the Secretary …, has not received such
final determination from such
intermediary on a timely basis …,
(2) the amount in controversy is $10,000 or
more, and
(3) such provider files a request for a
hearing within 180 days after notice of
the intermediary’s final determination
….
42 U.S.C. § 1395oo(a). The Court held that even if subsections
(a)(1) and (a)(2) are both jurisdictional, the 180-day time limit
in (a)(3) is not. Id. at 156. In so doing, it emphasized that “[a]
requirement we would otherwise classify as nonjurisdictional
… does not become jurisdictional simply because it is placed
in a section of a statute that also contains jurisdictional
provisions.” Id. at 155. Here, as in Auburn, a single sentence
contains both a requirement to file within a stated number of
days and a grant of jurisdiction; yet there is nothing in the
structure of the sentence that “conditions the jurisdictional
grant on the limitations period, or otherwise links” those
separate clauses. Kwai Fun Wong, 135 S. Ct. at 1633. On the
contrary, the jurisdictional grant is separated from the rest of
18
the provision by being put in parentheses and introduced by the
word “and,” which announces a new independent clause. We
therefore do not attach dispositive significance to the proximity
between the provision setting the time period and the
jurisdictional grant.
The IRS counters that “the test is whether Congress made
a clear statement, not whether it made the clearest statement
possible.” See Duggan v. Comm’r, 879 F.3d 1029, 1034 (9th
Cir. 2018). True enough, but we are not saying the Congress
must “incant magic words in order to speak clearly.” Auburn,
568 U.S. at 153. The Congress need only include words linking
the time period for filing to the grant of jurisdiction. See, e.g.,
Nauflett v. Comm’r, 892 F.3d 649, 652 (4th Cir. 2018); Rubel
v. Comm’r, 856 F.3d 301, 306 (3d Cir. 2017); Matuszak v.
Comm’r, 862 F.3d 192, 197-98 (2d Cir. 2017). ‡
‡
Our dissenting colleague suggests we are “at odds with” these
decisions, which held the 90-day filing requirement in 26 U.S.C.
§ 6015(e)(1)(A) is jurisdictional. Dissent 6 n.2. Here is what that
provision says:
In addition to any other remedy provided by law, the individual
may petition the Tax Court (and the Tax Court shall have
jurisdiction) to determine the appropriate relief available to the
individual under this section if such petition is filed— [during a
certain time period].
It differs from the provision at hand in one critical respect: The grant
of jurisdiction is followed by an “if” clause that expressly conditions
jurisdiction upon timely filing. There is no conflict, therefore,
between this case and the cited decisions. Indeed, we think
§ 6015(e)(1)(A) just shows one way the Congress could have more
clearly conditioned the Tax Court’s jurisdiction upon timely filing in
§ 7623(b)(4), viz., with a parenthetical that stated “the Tax Court
19
Our dissenting colleague reads “such matter” in the
parenthetical to provide the connection that makes the filing
period jurisdictional. We agree that “such matter” means “the
subject of litigation previously specified,” which is “an appeal
to the Tax Court.” Dissent 3. In our view, however, the type
of appeal to which “such matter” refers is most naturally
identified by the subject matter of the appeal — namely, “any
determination regarding an award under paragraph (1), (2), or
(3)” — and not by the requirement that it be filed “within 30
days of such determination.”
To be sure, this statute comes closer to satisfying the clear
statement requirement than any the Supreme Court has
heretofore held to be non-jurisdictional. Still, the Court has
demanded an unusually high degree of clarity to trigger the
“drastic” “consequences that attach to the jurisdictional label.”
Shinseki, 562 U.S. at 435. Indeed, as our amicus points out, the
Court has not yet identified a single filing deadline that meets
the “clear statement” test. Because the Supreme Court has
instructed us to consider its “interpretations of similar
provisions in many years past as probative of whether Congress
intended a particular provision to rank as jurisdictional,”
Auburn, 568 U.S. at 154 (cleaned up), we believe the Congress
must make unmistakable its intent to deprive the Tax Court of
authority to hear an untimely petition. In light of the Supreme
Court’s recent jurisprudence, we think “[t]his case is scarcely
the exceptional one,” id. at 155, in which a filing period ranks
as a jurisdictional bar.
shall have jurisdiction with respect to such matter if the appeal is
brought within such period.”
20
Although this Circuit is the first to decide whether
§ 7623(b)(4) is jurisdictional in nature, we recognize that our
holding is in some tension with that of another circuit regarding
a similarly worded provision of the Internal Revenue Code, 26
U.S.C. § 6330(d)(1). See Duggan, 879 F.3d at 1034; accord
Guralnik v. Comm’r, 146 T.C. 230 (2016). Section 6330(d)(1)
governs appeals from collection due process hearings; it
provides:
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).
This provision is nearly identical in structure to the one at hand.
Nevertheless, for the reasons given above, we cannot agree that
“timely filing of the petition [is] a condition of the Tax Court’s
jurisdiction” simply because “the filing deadline is given in the
same breath as the grant of jurisdiction.” Duggan, 879 F.3d at
1034. We hold § 7623(b)(4) does not contain a “clear
statement” that timely filing is a jurisdictional prerequisite to
the Tax Court’s hearing the whistleblower’s case.
C. Whether the 30-day Filing Period is Subject to
Equitable Tolling
Because we hold that § 7623(b)(4) is not jurisdictional, we
come to the question whether the filing period is subject to
equitable tolling. Under Irwin v. Dep’t of Veterans Affairs, 498
U.S. 89 (1990) and its progeny, “a nonjurisdictional federal
statute of limitations is normally subject to a rebuttable
presumption in favor of equitable tolling.” Holland v. Florida,
560 U.S. 631, 645-46 (2010) (cleaned up). Because the
“presumption of equitable tolling was adopted in part on the
premise that such a principle is likely to be a realistic
21
assessment of legislative intent,” Auburn, 568 U.S. at 159
(cleaned up), it is rebutted if there is “good reason to believe
that Congress did not want the equitable tolling doctrine to
apply,” United States v. Brockamp, 519 U.S. 347, 350 (1997).
The IRS maintains equitable tolling is not a realistic
assessment of legislative intent with regard to § 7623(b)(4),
citing the Supreme Court’s decision in Auburn. There the
Supreme Court denied the presumption to the 180-day limit for
appealing a Medicare reimbursement determination to an
administrative review board, in part because “unlike the
remedial statutes at issue in many of th[e] Court’s equitable-
tolling decisions,” the statutory scheme is “not designed to be
unusually protective of claimants.” 568 U.S. at 159-160. The
IRS therefore argues that the “whistleblower statute providing
for an ‘award’ is not a remedial provision” “designed to be
unusually protective of claimants.”
Indeed it is not, but the Court in Auburn did not rest its
evaluation of legislative intent on this factor alone. The Court
began its analysis by saying, “[w]e have never applied the
Irwin presumption to an agency’s internal appeal deadline.” Id.
at 159. It then explained that the Secretary of the Department
of Health and Human Services, pursuant to its rulemaking
authority, had expressly prohibited the review board from
extending the filing deadline. Id. at 159; see 42 C.F.R. §
405.1841(b) (2007). Because the Congress had amended the
statute six times, “each time leaving untouched the 180-day
administrative appeal provision and the Secretary’s rulemaking
authority,” the Court inferred that the Congress approved of the
regulation. Id. at 159. Finally, it noted the statutory scheme is
not “one in which laymen, unassisted by trained lawyers,
initiate the process”; instead, providers are “sophisticated”
“repeat players” who are “assisted by legal counsel.” Id. at
160.
 22
None of these other indicators of legislative intent is
present in this case: The Tax Court is not an “internal”
“administrative body” and Tax Court petitioners are typically
pro se, individual taxpayers who have never petitioned the Tax
Court before. Moreover, the IRS points to no regulation or
history of legislative revision that might contradict the Irwin
presumption. That the whistleblower award statute is not
unusually protective of claimants is the only consideration on
the IRS side of the ledger. Without more, we are not persuaded
to set aside a presumption that has been so consistently applied.
See, e.g., Young v. United States, 535 U.S. 43, 49 (2002) (“It is
hornbook law that limitations periods are customarily subject
to equitable tolling”) (cleaned up).
We therefore hold the Irwin presumption has not been
rebutted and the filing period in § 7623(b)(4) is subject to
equitable tolling. Accordingly, we will remand the case to the
Tax Court to consider in the first instance whether equitable
tolling is appropriate in this case.
IV. Conclusion
In sum, we agree with the Tax Court’s conclusion that
Myers’s petition was not timely filed under § 7623(b)(4),
reverse its dismissal for want of jurisdiction, and remand the
case for the Tax Court to decide whether Myers is entitled to
equitable tolling.
So ordered.
23
Appendix: Tax Court Letters
1. March 13, 2013 letter
We have considered your application for an award
dated 08/17/2009. Under Internal Revenue Code
Section 7623, an award may be paid only if the
information provided results in the collection of
additional tax, penalties, interest or other proceeds. In
this case, the information you provided did not result
in the collection of any proceeds. Therefore, you are
not eligible for an award.
Although the information you submitted did not
qualify for an award, thank you for your interest in the
administration of the internal revenue laws.
If you have any further questions in regards to this
letter, please feel free to contact the Informant Claims
Examination Team at 801-620-2169.
2. November 20, 2013; January 8, 2014; and March 6, 2014
letters
We considered the additional information you
provided and determined your claim still does not
meet our criteria for an award. Our determination
remains the same despite the information contained in
your latest letter.
Please keep in mind the confidentiality of the
informants’ claims process and understand that we
cannot disclose the facts surrounding an examination,
i.e., taxes collected and audit examination.
24
Although the information you submitted did not
qualify for an award, thank you for your interest in the
administration of the internal revenue laws.
If you have any further questions in regards to this
letter, please feel free to contact the initial Evaluation
Claims at 801-620-2169.
3. February 24, 2014 letter
This letter is in regard to your correspondence dated
February 20, 2014, concerning your claim for award.
We closed your claim for award on March 13, 2013.
I am enclosing a copy of the letter for your
information.
When we receive allegations of non-compliance, the
information is evaluated to determine if an
investigation or audit is appropriate. The evaluation
considers many factors; however, we cannot share our
analysis with you because of the taxpayer privacy
provisions of section 6103 of the Internal Revenue
Code. At the conclusion of our review, we can only
tell you whether the information you provided met the
criteria for paying an award. Unfortunately, we
cannot give you specific details about what actions we
take, if any, because of the privacy laws that protect
the tax information of all taxpayers.
I am sorry that my response cannot be more specific.
If you have further questions about your claim, please
call or write the Whistleblower Office, ICE Team at
the above address or phone number. Thank you for
your interest in compliance with the tax laws.
KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in part and dissenting in part: Although my colleagues find that
David Myers (Myers) failed to file his appeal to the United
States Tax Court (Tax Court) within the 30-day filing period
provided in I.R.C. § 7623(b)(4), they nevertheless reverse the
district court’s dismissal for lack of jurisdiction because they
conclude that § 7623(b)(4)’s filing period is not jurisdictional.
Majority Op. 15–20. I believe, however, that the statutory text
clearly demonstrates that the Congress intended to make
§ 7623(b)(4)’s filing period jurisdictional. I therefore
respectfully dissent from my colleagues’ conclusion on this
issue but join them in the remainder of the majority opinion.
I. Background
In August 2009, Myers applied to the Internal Revenue
Service’s (IRS) Whistleblower Office for a monetary award for
information he provided—his belief that his employer
misclassified him and his co-workers as independent
contractors to avoid statutory obligations owed to employees.
See I.R.C. § 7623(b)(1) (authorizing Treasury Secretary to
award whistleblower from 15 to 30 per cent of unpaid tax
collected based on information whistleblower provides). The
Whistleblower Office sent Myers five letters denying his
application. Myers received the last of the letters no later than
April 11, 2014 and had 30 days within which to appeal the
Whistleblower Office’s determinations, see I.R.C.
§ 7623(b)(4). Instead, from April 2014 to February 2015,
Myers sent a total of twenty-four emails to various government
officials, including the IRS chief counsel. The officials never
responded. Myers eventually filed a pro se appeal with the Tax
Court but not until January 26, 2015—more than eight months
after the filing period had passed.
The Tax Court dismissed Myers’s appeal as untimely.
Myers v. Comm’r of Internal Revenue, 148 T.C. 438, 449
(2017). It held that § 7623(b)(4)’s 30-day filing period is
2
jurisdictional, that the Whistleblower Office’s letters were
valid determinations, that the filing period began to run no later
than April 11, 2014 (by which time Myers had received all five
Whistleblower Office letters) and that Myers did not file his
appeal until January 26, 2015. Id. at 442–48. The Tax Court
concluded that it lacked jurisdiction of Myers’s appeal and
accordingly dismissed his appeal. Id. at 449. Myers appeals
the Tax Court’s dismissal.
II. Analysis
Because the majority affirms the Tax Court’s findings that
the Whistleblower Office’s letters were valid determinations
and that the filing period began to run no later than April 11,
2014, Majority Op. 12–15, whether the Tax Court correctly
dismissed Myers’s appeal turns exclusively on whether
§ 7623(b)(4)’s 30-day filing period is jurisdictional. The
majority answers the question in the negative, id. at 20, but I
am not persuaded.
The majority is correct that “most time bars are
nonjurisdictional” and instead are “quintessential claim-
processing rules which seek to promote the orderly progress of
litigation, but do not deprive a court of authority to hear a case.”
Majority Op. 15–16 (quoting United States v. Kwai Fun Wong,
135 S. Ct. 1625, 1632 (2015)). The general rule, however, is
not unqualified. “[The] Congress is free to attach . . . the
jurisdictional label to a rule that we would prefer to call a
claim-processing rule.” Henderson v. Shinseki, 562 U.S. 428,
435 (2011). To deviate from the general rule and make
jurisdictional what is normally a claim-processing rule, the
Congress must speak “clearly.” Fort Bend Cty. v. Davis, 139
S. Ct. 1843, 1850 (2019) (quoting Arbaugh v. Y & H Corp., 546
U.S. 500, 515 (2006)).
3
The 30-day filing period in § 7623(b)(4) is one of the rare
instances in which the Congress has clearly expressed its intent
to make the time bar jurisdictional. That provision states: “Any
determination regarding an award under paragraph (1), (2), or
(3) may, within 30 days of such determination, be appealed to
the Tax Court (and the Tax Court shall have jurisdiction with
respect to such matter).” I.R.C. § 7623(b)(4). There is no
doubt that the parenthetical clause—“(and the Tax Court shall
have jurisdiction with respect to such matter)”—is
jurisdictional because it expressly “speak[s] in jurisdictional
terms,” Musacchio v. United States, 136 S. Ct. 709, 717 (2016).
In turn, the parenthetical clause renders the remainder of
§ 7623(b)(4) jurisdictional “by incorporating [it] into [the]
jurisdictional provision.” Fort Bend Cty., 139 S. Ct. at 1849.
The parenthetical clause states that the Tax Court “shall have
jurisdiction with respect to such matter.” I.R.C. § 7623(b)(4)
(emphasis added). “Matter” can mean “something that is a
subject of disagreement, strife, or litigation,” and “such” refers
to things “previously characterized or specified.” Webster’s
Third New International Dictionary 1394, 2283 (2002). Here,
the subject of litigation previously specified is an “appeal[] to
the Tax Court.” I.R.C. § 7623(b)(4). The type of appeal of
which the “Tax Court shall have jurisdiction,” however, is not
every conceivable appeal; § 7623(b)(4) specifies the type of
appeal that constitutes “such matter” by use of two descriptors:
first, it must arise from “[a]ny determination regarding an
award under paragraph (1), (2), or (3)” and second, it must be
filed “within 30 days of such determination.” Id. The
parenthetical clause’s use of “such matter” therefore provides
what my colleagues say they cannot find: “words linking the
time period for filing to the grant of jurisdiction.” Majority Op.
18; see also id. at 17 (“[T]here is nothing in the structure of the
sentence that ‘conditions the jurisdictional grant on the
4
limitations period, or otherwise links’ those separate clauses.”
(quoting Kwai Fun Wong, 135 S. Ct. at 1633)).
The majority, Myers and amicus offer no other plausible
way to read the parenthetical clause’s reference to “such
matter.” See id. at 15–20. Indeed, amicus concedes that “it is
arguable ‘such matter’ in the jurisdictional parenthetical refers
to (1) the filing of an appeal and (2) rigid compliance with the
30-day requirement.” Rather than identify another plausible
interpretation of “such matter,” however, amicus suggests only
that the Congress could have spoken more clearly if
§ 7623(b)(4) had stated “the Tax Court shall have jurisdiction
with respect to such matter only if the appeal is brought within
such period.” See also id. at 18 n.‡ (suggesting similar
additional language). But as even the majority recognizes, “the
test is whether Congress made a clear statement, not whether it
made the clearest statement possible.” Id. at 18; accord
Duggan v. Comm’r of Internal Revenue, 879 F.3d 1029, 1034
(9th Cir. 2018); see Sebelius v. Auburn Reg’l Med. Ctr., 568
U.S. 145, 153 (2013) (Congress need not “incant magic words
in order to speak clearly”). That the Congress could have
spoken even more clearly does not mean it has not spoken
clearly enough to render § 7623(b)(4)’s 30-day filing period
jurisdictional. In the absence of any other plausible reading of
“such matter,” I think the Congress’s intent is sufficiently clear.
Downplaying the textual connection between
§ 7623(b)(4)’s jurisdictional grant and its filing period, my
colleagues invoke the rule that proximity to a jurisdictional
provision does not render a filing period jurisdictional.
Majority Op. 16–18. Granted, “[m]ere proximity [to a
jurisdictional provision] will not turn a rule that speaks in
nonjurisdictional terms into a jurisdictional hurdle.” Gonzales
v. Thaler, 565 U.S. 134, 147 (2012). This principle, however,
5
says nothing about a filing period that is both proximate and
textually connected to a jurisdictional grant.
Even were I to join my colleagues and find no textual
connection within § 7623(b)(4), I would still not be persuaded
that the principle that “mere proximity” is not enough renders
§ 7623(b)(4)’s filing period nonjurisdictional. They rely
heavily on Sebelius v. Auburn Regional Medical Center, in
which case the United States Supreme Court held that a filing
deadline for an administrative appeal under the Medicare Act
was not jurisdictional. 568 U.S. at 148–49; see Majority Op.
16–18. The Supreme Court concluded that even if paragraphs
(a)(1) and (a)(2) of 42 U.S.C. § 1395oo were jurisdictional, that
did not also make paragraph (a)(3)’s 180-day filing period
jurisdictional. Auburn, 568 U.S. at 155–56. As part of its
holding, the Court stated that “[a] requirement we would
otherwise classify as nonjurisdictional . . . does not become
jurisdictional simply because it is placed in a section of a statute
that also contains jurisdictional provisions.” Id. at 155. I do
not read Auburn to be applicable here, where the filing period
and jurisdictional grant occupy the same statutory provision,
not neighboring provisions. 1 Unlike the filing period in
Auburn, § 7623(b)(4)’s filing period is not simply proximate to
1
My colleagues point out that, as in § 7623(b)(4), the
jurisdictional grant and filing period at issue in Auburn are part of
the same grammatical sentence. Majority Op. 17. Although perhaps
interesting, this fact is not helpful. Whereas § 7623(b)(4)’s
jurisdictional grant and filing period are part of a 36-word sentence
and share the same statutory paragraph, the “sentence” at issue in
Auburn is 344 words long and is divided into separate statutory
paragraphs, sub-paragraphs and sub-sub-paragraphs, see 42 U.S.C.
§ 1395oo(a). The two sentences are thus chalk and cheese.
6
other jurisdictional provisions; it “is given in the same breath
as the grant of jurisdiction.” Duggan, 879 F.3d at 1034. 2
* * *
Based on the text of § 7623(b)(4), I believe that the
Congress has clearly expressed its intent that the 30-day filing
period is meant to be jurisdictional. Because Myers failed to
appeal to the Tax Court within that period, I would conclude
that the Tax Court lacked jurisdiction to consider his appeal or
to equitably toll the filing period, see Kwai Fun Wong, 135 S.
Ct. at 1634, and would therefore affirm the Tax Court’s
dismissal.
2
The majority’s holding is also at odds with several decisions
from other circuits. The Ninth Circuit has concluded that the nearly
identical language in I.R.C. § 6630(d)(1) is “unambiguous” that the
filing period is jurisdictional. Duggan, 879 F.3d at 1034–35. In
addition, the Second, Third and Fourth Circuits have also found
I.R.C. § 6015(e)(1)(A)’s similarly worded filing period to be
jurisdictional. See Matuszak v. Comm’r of Internal Revenue, 862
F.3d 192, 196 (2d Cir. 2017); Rubel v. Comm’r of Internal Revenue,
856 F.3d 301, 305 (3d Cir. 2017); Nauflett v. Comm’r of Internal
Revenue, 892 F.3d 649, 652–53 (4th Cir. 2018). The majority does
not meaningfully address the Ninth Circuit’s decision and attempts
to distinguish the others on the ground that § 6015(e)(1)(A) uses the
subordinating conjunction “if” before the filing period and
§ 7623(b)(4) does not. See Majority Op. 18–20 & n.‡. The phrase
“such matter” in § 7623(b)(4), however, serves the same function as
“if” in § 6015(e)(1)(A): it expressly links the provision’s
jurisdictional grant to its filing period. Section 6015(e)(1)(A)’s
jurisdictional clause is similarly “separated from the rest of the
provision by being put in parentheses and introduced by the word
‘and’”—two of the reasons the majority uses to conclude that
§ 7623(b)(4)’s jurisdictional grant operates independently of the
remainder of the provision. Id. at 17–18. Sections 6015(e)(1)(A)
and 7623(b)(4) are equivalent in all material aspects.