Duggan v. Commissioner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP A. DUGGAN, No. 15-73819
Petitioner-Appellant,
Tax Ct. No.
v. 4100-15 L
COMMISSIONER OF INTERNAL
REVENUE, OPINION
Respondent-Appellee.
Appeal from a Decision of the
United States Tax Court
Submitted December 7, 2017*
Seattle, Washington
Filed January 12, 2018
Before: Michael Daly Hawkins, M. Margaret McKeown,
and Morgan Christen, Circuit Judges.
Opinion by Judge Christen
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 DUGGAN V. CIR
SUMMARY**
Tax
The panel affirmed the Tax Court’s dismissal of a petition
for review of two Internal Revenue Service Notices of
Determination, for lack of jurisdiction.
Petitioner mistakenly counted the first day after the date
of the IRS’s notices as day “zero” for purposes of calculating
the 30-day period for filing a petition for review. The panel
held that the 30-day deadline in I.R.C. § 6330(d)(1) is
jurisdictional, and that petitioner’s failure to meet the
deadline divested the Tax Court of the power to hear his case
and foreclosed any argument for equitable tolling.
COUNSEL
Philip A. Duggan, Deer Park, Washington, pro se Petitioner-
Appellant.
Janet A. Bradley, Robert W. Metzler, and Gilbert S.
Rothenberg, Attorneys; Caroline D. Ciarolo, Acting Assistant
Attorney General; Tax Division, United States Department of
Justice, Washington, D.C., for Respondent-Appellee.
Carlton M. Smith, New York, New York; Professor T. Keith
Fogg, Director, Harvard Federal Tax Clinic, Jamaica Plain,
Massachusetts; for Amicus Curiae Linda Jean Matuszak.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DUGGAN V. CIR 3
OPINION
CHRISTEN, Circuit Judge:
I.R.C. § 6330(d)(1) gives taxpayers aggrieved by an
Internal Revenue Service (IRS) determination thirty days to
file a petition for review in the Tax Court. Philip Duggan
mistakenly counted the first day after the date of the IRS’s
determination as day “zero,” and filed his petition for review
on what was in fact the thirty-first day. The Tax Court held
that Duggan’s failure to meet § 6330(d)(1)’s filing deadline
deprived it of jurisdiction to hear his case. We affirm.
BACKGROUND
The IRS mailed to Duggan two Notices of Determination
dated January 7, 2015, which proposed collection of unpaid
income taxes for 2008, 2010, 2012, and 2013. Both notices
informed Duggan that he could dispute the IRS’s
determinations by “fil[ing] a petition with the United States
Tax Court within a 30-day period beginning the day after the
date of this letter.” The notices cautioned that § 6330(d)(1):
. . . limits the time for filing your petition to
the 30-day period mentioned above. The
courts cannot consider your case if you file
late. If you file an appeal in an incorrect court
(e.g., United States District Court), you won’t
be able to refile in the United States Tax
Court if the period for filing a petition
expired.
Duggan erroneously assumed January 8, 2015, the first day
after the date of the IRS determinations, was day zero.
4 DUGGAN V. CIR
Thirty-one days after the January 7, 2015 determinations—on
February 7, 2015—Duggan mailed a petition for review to the
Tax Court. The IRS Commissioner moved to dismiss the
petition for lack of jurisdiction. Duggan opposed the
Commissioner’s motion, arguing that the IRS’s notices were
“incomplete, misleading, or ambiguous,” and that his
attempts to comply with the filing deadline were reasonable.
The Tax Court granted the Commissioner’s motion and
dismissed Duggan’s petition on jurisdictional grounds.
Duggan moved for reconsideration, contending, among other
things, that he should not be faulted for his reasonable
interpretation of the filing deadline. The Tax Court denied
Duggan’s motion to reconsider, and Duggan timely appeals.
We have jurisdiction under I.R.C. § 7482.
STANDARD OF REVIEW
We review dismissals by the Tax Court for lack of
jurisdiction de novo. Gorospe v. C.I.R., 451 F.3d 966, 968
(9th Cir. 2006).
DISCUSSION
The Tax Court is an Article I court of “limited
jurisdiction.” C.I.R. v. McCoy, 484 U.S. 3, 7 (1987) (per
curiam). Because the Tax Court’s “subject matter is
statutorily granted,” we must look to the relevant sections of
the Tax Code to determine the court’s jurisdictional reach.
See Gorospe, 451 F.3d at 968. The Tax Court “may not use
general equitable powers to expand its jurisdictional grant
beyond this limited Congressional authorization.” Estate of
Branson v. C.I.R., 264 F.3d 904, 908 (9th Cir. 2001). I.R.C.
§ 6330(d)(1) provides:
DUGGAN V. CIR 5
A 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).
Before we may consider whether § 6330(d)(1)’s thirty-day
deadline may be equitably tolled, Duggan must first establish
that the deadline is not jurisdictional. This is because a
party’s failure to satisfy a deadline that is jurisdictional places
the case beyond the powers of the court. United States v.
Kwai Fun Wong, 135 S. Ct. 1625, 1631 (2015). The court
would not have authority to entertain such a suit even if the
timeliness objection were waived by the other party, or if a
compelling argument for equitable tolling could otherwise be
made. Id. Because the ramifications of missing a
jurisdictional deadline are severe, the Supreme Court has
emphasized that filing deadlines are jurisdictional only if
Congress “clearly state[d]” them to be so. Sebelius v. Auburn
Reg’l Med. Ctr., 568 U.S. 145, 153 (2013); see also Hamer v.
Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 20 n.9
(2017). Hence, “Congress must do something special,
beyond setting an exception-free deadline, to tag a [filing
deadline] as jurisdictional and so prohibit a court from tolling
it.” Kwai Fun Wong, 135 S. Ct. at 1632.
That said, Congress does not have to “incant magic
words” to render a deadline jurisdictional, so long as
“traditional tools of statutory construction . . . plainly show
that Congress imbued a procedural bar with jurisdictional
consequences.” Id. (citing Auburn Reg’l, 568 U.S. at 153).
The doctrine of stare decisis may also counsel against
overturning well-settled law interpreting a deadline as
jurisdictional, especially where “Congress has long
6 DUGGAN V. CIR
acquiesced in the interpretation . . . given.” John R. Sand &
Gravel Co. v. United States, 552 U.S. 130, 139 (2008); see
Bowles v. Russell, 551 U.S. 205, 209–10 (2007). Thus, “[t]o
determine whether Congress has made the necessary clear
statement, we examine the text, context, and relevant
historical treatment of the provision at issue.” Musacchio v.
United States, 136 S. Ct. 709, 717 (2016) (internal quotation
marks omitted).
In Kwai Fun Wong, the Supreme Court held that the time
limits set out in 28 U.S.C. § 2401(b) of the Federal Tort
Claims Act are not jurisdictional and may therefore be
equitably tolled. 135 S. Ct. at 1629. Section 2401(b)
declares that “[a] tort claim against the United States shall be
forever barred unless it is presented . . . to the appropriate
Federal agency within two years after such claim accrues”
and is raised in federal court six months after the agency
denies the claim. Despite the mandatory and emphatic
language of the statute, the Court emphasized that ultimately,
“[w]hat matters . . . is that § 2401(b) does not speak in
jurisdictional terms or refer in any way to the jurisdiction of
the district courts.” Id.at 1633 (internal quotation marks
omitted). Instead, the statute “reads like an ordinary, run-of-
the-mill statute of limitations spelling out a litigant’s filing
obligations without restricting a court’s authority.” Id.
(internal quotation marks omitted). The Court explained that
this understanding of the text was confirmed by “[s]tatutory
context.” Id. Whereas § 2401(b) spells out the time limits
for bringing a tort claim against the United States, the federal
district court’s authority to hear such claims is derived from
DUGGAN V. CIR 7
a different section of the same title, § 1346(b)(1).1 Id.
Because “[n]othing conditions the jurisdictional grant on the
limitations period, or otherwise links those separate
provisions,” the “structural divide built into the statute”
indicates that failure to satisfy § 2401(b)’s deadlines does not
divest the district court of power to hear the case. Id.
Observing, in addition, the legislative history’s silence on
whether § 2401(b) is jurisdictional, Kwai Fun Wong
concluded that Congress did not make the clear statement
required for § 2401(b)’s time bars to be jurisdictional. Id.
In contrast, we held in United States v. Pocklington,
792 F.3d 1036 (9th Cir. 2015), that a district court had no
authority, under 18 U.S.C. § 3565(c), to extend a sentence of
probation in order to facilitate investigations into a
defendant’s alleged violation of a condition of probation.
Section 3565(c) states:
The power of the court to revoke a sentence of
probation for violation of a condition of
probation, and to impose another sentence,
extends beyond the expiration of the term of
probation for any period reasonably necessary
for the adjudication of matters arising before
its expiration if, prior to its expiration, a
warrant or summons has been issued on the
basis of an allegation of such a violation.
1
Section 1346(b)(1) provides that the “district courts . . . shall have
exclusive jurisdiction of civil actions on claims against the United States,
for money damages . . . caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the
scope of his office or employment . . . .”
8 DUGGAN V. CIR
Because the statute “unmistakabl[y]” speaks to the “power of
the court to revoke a sentence of probation,” and conditions
it on the issuance of a warrant or summons before the term of
probation expires, we concluded that the government’s failure
to timely procure a warrant or summons deprived the district
court of jurisdiction. Pocklington, 792 F.3d at 1039–41
(emphasis in original).
Similarly, Matuszak v. Commissioner of Internal
Revenue, 862 F.3d 192 (2d Cir. 2017), held I.R.C.
§ 6015(e)(1)(A)’s ninety-day deadline to be jurisdictional.
Under that section of the Tax Code:
. . . [an] 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 . . . not later than the close of
the 90th day after the date [the IRS issues its
final notice of determination, or six months
after the date the request was made.]
Matuszak, 862 F.3d at 195 (second alteration in original)
(quoting § 6015(e)(1)(A)). While acknowledging that filing
deadlines are “typically” “non-jurisdictional claim-processing
rules,” the Second Circuit nevertheless found in
§ 6015(e)(1)(A) the “rare statutory period[] that speak[s] in
clear jurisdictional terms.” Id. at 196 (internal quotation
marks omitted). The court reasoned that by “plac[ing] the
grant of jurisdiction and the time limitation in the same
sentence and subsection,” and by “expressly condition[ing]
the Tax Court’s jurisdiction on the timely filing of a petition”
through the use of the conjunction “if,” Congress manifested
an intent for the ninety-day deadline to be jurisdictional. Id.
DUGGAN V. CIR 9
The Second Circuit also has held to be jurisdictional a
statute related to the Tax Court that does not use the
conditional word “if.” In Maier v. Commissioner of Internal
Revenue, 360 F.3d 361 (2d Cir. 2004), the court examined
I.R.C. § 6015, which provides:
In the case of an individual . . . who elects to
have [innocent spouse provisions] apply[,] . . .
the individual may petition the Tax Court (and
the Tax Court shall have jurisdiction) to
determine the appropriate relief available . . . .
The court observed that the statute is “unambiguous about
who may file petitions for review with the Tax Court”—
electing spouses. Id. at 364. By contrast, Congress did not
grant the Tax Court jurisdiction “[any]where in § 6015, or
any other congressional act . . . over petitions for review filed
by non-electing spouses.” Hence, Maier affirmed the Tax
Court’s dismissal of a petition for review filed by a non-
electing spouse. Id. The Second Circuit’s reasoning suggests
that it viewed filing by an electing spouse as a condition on
the Tax Court’s jurisdiction, although the court did not
explicitly say so. See id.
Here, I.R.C. § 6630(d)(1) states:
A 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 statute at issue expressly contemplates the Tax Court’s
jurisdiction. Moreover, the filing deadline is given in the
10 DUGGAN V. CIR
same breath as the grant of jurisdiction. Although “[m]ere
proximity will not turn a rule that speaks in nonjurisdictional
terms into a jurisdictional hurdle,” Gonzalez v. Thaler,
565 U.S. 134, 147 (2012), § 6630(d)(1) makes timely filing
of the petition a condition of the Tax Court’s jurisdiction.
Like the Tax Code provision in Maier, § 6630(d)(1) is
“unambiguous” that in order for the Tax Court to have
jurisdiction, a petition for review must be filed “within
30 days of a determination.” See Maier, 360 F.3d at 364.
This makes § 6630(d)(1)’s thirty-day deadline jurisdictional.
See Pocklington, 792 F.3d at 1039–41; Matuszak, 862 F.3d at
196; Maier, 360 F.3d at 364.
Amicus2 insists that the statutory language is ambiguous.
According to amicus, to tag § 6630(d)(1)’s filing deadline as
jurisdictional, Congress needed to specify that:
A person may, within 30 days of
determination under this section, appeal such
determination to the Tax Court (and the Tax
Court shall have jurisdiction with respect to
such matter only if the appeal is brought
within such period).
Amicus’s rendition of the statute makes the consequences of
missing the thirty-day deadline pellucid. But the test is
whether Congress made a clear statement, not whether it
made the clearest statement possible. The plain language of
§ 6630(d)(1) confers jurisdiction on the Tax Court if (and
2
Because the decision in this case could potentially have affected the
outcome of an appeal brought by another taxpayer, she was granted leave
to file an amicus brief discussing the import of recent Supreme Court
decisions on the jurisdictionality of § 6630(d)(1).
DUGGAN V. CIR 11
only if) a petition for review is filed in that court within thirty
days of the IRS’s determination. And while the legislative
history is silent as to whether Congress intended the filing
deadline in § 6630(d)(1) to be jurisdictional, “the best
evidence of Congress’[s] intent is the statutory text.” Nat’l
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 544 (2012).
Amicus also avers that an earlier version of § 6630(d)(1)
contained a rule regarding timely filing in the wrong forum.
As it stood in 2000, § 6630(d)(1) allowed a person who
brought an appeal in an incorrect court thirty days to re-file
in the correct court. This, by amicus’s lights, “strongly
suggests that Congress did not think the 30-day period was
jurisdictional or otherwise not subject to equitable tolling.”
But “[t]he starting point in discerning congressional intent . . .
is the existing statutory text and not predecessor statutes.”
Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004) (internal citations
omitted). Even if we were to consider this now-abrogated
clause in § 6630(d)(1), the inference to be drawn from
Congress’s provision of a thirty-day period to re-file an
appeal in the appropriate forum is not apparent. Congress
might have intended the thirty-day deadline to file an appeal
in the Tax Court to be non-jurisdictional while including a
clause explicitly granting a second thirty-day deadline for
misdirected appeals out of an abundance of caution or to
sweep in cases not comprehended by the doctrine of equitable
tolling. Alternatively, Congress might have intended the
second thirty-day deadline to act as an exception that
mitigates the harshness of an otherwise jurisdictional rule.
Such speculation must yield to the text of the statute. See
United Food & Commercial Workers Union Local 751 v.
Brown Grp., Inc., 517 U.S. 544, 550 (1996).
12 DUGGAN V. CIR
Accordingly, we hold that because the text of
§ 6630(d)(1) conditions the Tax Court’s jurisdiction on the
timely filing of a petition for review, the thirty-day deadline
in § 6330(d)(1) is jurisdictional.3 Duggan’s failure to meet
this deadline divested the Tax Court of the power to hear his
case and foreclosed any argument for equitable tolling.
CONCLUSION
We affirm the Tax Court’s dismissal of Duggan’s petition
for review for lack of jurisdiction.
AFFIRMED.
3
We note that the Tax Court has consistently held the thirty-day
deadline at issue to be jurisdictional. See Guralnik v. C.I.R., 146 T.C. 230,
235–36 (2016). These holdings have not been disturbed by any of the
courts of appeals to have considered the matter, see, e.g., Gray v. C.I.R.,
723 F.3d 790, 793 (7th Cir. 2013), Thompson v. C.I.R., 486 F. App’x 682
(9th Cir. 2012); Springer v. C.I.R., 416 F. App’x 681, 683 n.1 (10th Cir.
2011); Tschida v. C.I.R., 57 F. App’x 715 (8th Cir. 2003).