Organic Cannabis Foundation, LLC

United States Tax Court
161 T.C. No. 4ORGANIC CANNABIS FOUNDATION, LLC, 1
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket Nos. 381-22L, 5442-22L. Filed September 27, 2023.
—————
P has unpaid tax for 2010, 2011, and 2018. R issued
notices of federal tax lien filings to P for all three years.
P timely requested a hearing with the Internal Revenue
Service Independent Office of Appeals (Appeals) during the
30-day period for requesting a collection due process (CDP)
hearing under I.R.C. § 6320(a)(3)(B) (30-day period) for
2010 and 2011 but requested a hearing for 2018 after the
30-day period. Appeals provided a CDP hearing for 2010
and 2011. Appeals determined that P’s hearing request for
2018 was untimely and provided an equivalent hearing
under Treas. Reg. § 301.6320-1(i)(1). Appeals issued a
Notice of Determination for 2010 and 2011 that did not
contain a determination for 2018. P filed a Petition seeking
review for all 3 years. After the Petition was filed, Appeals
issued a Decision Letter for 2018.
R moved to dismiss as to 2018 for lack of jurisdiction
on the ground that Appeals did not make a determination
for us to review under I.R.C. § 6330(d)(1). P argues that the
30-day period for requesting a CDP hearing under I.R.C.
1 Petitioner has sought review for 2018 in both docket numbers. Docket No.
381-22L results from a notice of determination for 2010 and 2011 in which the Appeals
officer refers to 2018, and Docket No. 5442-22L concerns a Petition to review a decision
letter issued for 2018.
Served 09/27/23
2
§ 6320(a)(3)(B) should be equitably tolled. P further argues
that Appeals should have made a determination for 2018
for this Court to review. R argues that the 30-day period is
a fixed deadline that is not amenable to equitable tolling.
Held: Appeals has authority under I.R.C. § 6320 to
hold hearings when the taxpayer files a request after the
30-day period set forth in I.R.C. § 6320(a)(3)(B).
Held, further, the Treasury regulations under I.R.C.
§ 6320 do not preclude application of the doctrine of
equitable tolling to the 30-day period.
Held, further, the 30-day period is subject to
equitable tolling where the circumstances warrant it.
Held, further, Kennedy v. Commissioner, 116 T.C.
255 (2001), is overruled to the extent that it holds that
Appeals is not authorized to waive the 30-day period under
I.R.C. § 6320(a)(3)(B) and is not obliged to provide a CDP
hearing where the circumstances warrant equitable tolling
of the 30-day period.
—————
Christian A. Speck, Robin Lesley Klomparens, and Douglas L. Youmans,
for petitioner in docket No. 381-22L.
Christian A. Speck, for petitioner in docket No. 5442-22L.
Erik W. Nelson, Daniel G. Kester, Adriana E. Vargas, Alexander M.
Short, and Patsy A. Clarke, for respondent in docket No. 381-22L.
Erik W. Nelson, Adriana E. Vargas, Alexander M. Short, and Patsy A.
Clarke, for respondent in docket No. 5442-22L.
OPINION
GOEKE, Judge: When the Internal Revenue Service (IRS) files a
notice of federal tax lien (NFTL) on a taxpayer’s property to collect an
unpaid assessment, the Internal Revenue Code gives the taxpayer the
right to a collection due process (CDP) hearing with the IRS
3
Independent Office of Appeals (Appeals). § 6320(a) and (b). 2 The Code
requires that the IRS notify the taxpayer in writing of the NFTL filing
within five business days of the NFTL filing (5-day notice period) and
inform the taxpayer that it has the right to request a CDP hearing
during a 30-day period beginning on the day after the 5-day notice period
(30-day period). § 6320(a)(1), (3)(B). In these CDP cases respondent has
moved to dismiss as to the taxable year 2018 for lack of jurisdiction on
the grounds that Appeals did not make a determination for 2018 because
petitioner requested a CDP hearing untimely. 3
Our precedent has construed the 30-day period for requesting a
CDP hearing as a fixed deadline. In Kennedy v. Commissioner, 116 T.C.
255, 262 (2001), we held that Appeals is not authorized to waive the
30-day period for requesting a CDP hearing and that Appeals is not
required to provide a CDP hearing requested after the 30-day period. In
Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1501 (2022), the
Supreme Court held that a different 30-day period in section 6330(d)(1)
for a taxpayer to file a petition with this Court for review of Appeals’
determination following a CDP hearing is a nonjurisdictional deadline
that is subject to equitable tolling. Thereafter, in Hallmark Research
Collective v. Commissioner, 159 T.C. 126 (2022), we distinguished
Boechler in holding that the 90-day deadline for filing a deficiency
petition under section 6213(a) is jurisdictional. In the light of the
Supreme Court’s decision in Boechler and our opinion in Hallmark, we
reexamine our precedent as to the 30-day deadline in section
6320(a)(3)(B) for requesting a CDP hearing. We overrule Kennedy to the
extent that it holds that the 30-day period for requesting a CDP hearing
is a fixed deadline that is not amenable to equitable tolling. We hold that
the 30-day period in section 6320(a)(3)(B) is subject to equitable tolling.
Background
The following facts are derived from the pleadings, the parties’
Motion papers, and the Declarations and Exhibits attached thereto.
Petitioner, Organic Cannabis Foundation, LLC, is a California limited
2 Unless otherwise indicated, statutory references are to the Internal Revenue
Code, Title 26 U.S.C. (Code), in effect at all relevant times, and regulation references
are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant
times.
3 These cases have been consolidated for trial with the cases at docket
Nos. 26889-16, 26890-16, 26891-16, 21033-18, 21034-18, 21035-18, 24708-21L, and
5442-22L. As explained further herein, the collection action for 2018 is also at issue in
Docket No. 5442-22L, but the parties have not filed any motions in that case.
4
liability company that elected to be taxed as a corporation. Its sole
member is Northern California Small Business Assistants, Inc. When
the Petition was filed, petitioner’s principal place of business was in
California.
Petitioner has unpaid income tax for 2010 and 2011 that was
assessed as deficiencies following the issuance of a notice of deficiency
and an untimely filed petition which this Court dismissed by order for
lack of jurisdiction. See Organic Cannabis Found., LLC v.
Commissioner, 962 F.3d 1082 (9th Cir. 2020). Petitioner has unpaid
income tax for 2018 that it reported on its 2018 tax return and unpaid
penalties.
On April 16, 2019, respondent issued to petitioner a notice of the
filing of an NFTL for 2010 and 2011, and petitioner timely requested a
CDP hearing during the 30-day period under section 6320(a)(3)(B). On
March 15, 2021, respondent filed an NFTL for unpaid 2018 tax with the
Recorder Office of Sonoma County, California. On March 16, 2021,
respondent issued to petitioner a notice of the NFTL filing for 2018 (2018
notice). The 2018 notice states that the deadline for requesting a CDP
hearing was April 22, 2021, although the computation of the 30-day
period under the statute would set the deadline as April 21, 2021,
measured from the March 15, 2021, filing date. Respondent states that
the April 22, 2021, deadline was incorrect but concedes that he issued a
notice which gave petitioner the right to request a CDP hearing by April
22, 2021.
On April 23, 2021, petitioner submitted a CDP hearing request
for 2018 by fax and by certified mail. Respondent has conceded that
petitioner requested the CDP hearing on April 23, 2021, and has treated
the request as filed on that date. See § 7502. Accordingly, the request
was filed one day after the deadline set forth in the 2018 notice. Appeals
determined that the hearing request was untimely on the basis of the
April 22, 2021, deadline, and provided petitioner with an equivalent
hearing under Treasury Regulation § 301.6320-1(i)(1), which petitioner
had requested as an alternative to the CDP hearing. 4 The equivalent
hearing was combined with the CDP hearing for 2010 and 2011 so that
the three years could be considered jointly. The combined hearing was
4 We understand, and respondent has not asserted otherwise, that petitioner
raised the issue of the timeliness of its 2018 CDP hearing request before Appeals. It is
inappropriate for us to decide whether the circumstances of these cases warrant
equitable tolling until we address whether Boechler requires us to overrule our
precedent that has held that the 30-day period is a fixed deadline not subject to waiver.
5
held on September 17, 2021, and included discussion of all three years.
Thereafter, petitioner did not provide financial information that the
Appeals officer had requested or submit an offer-in-compromise as a
collection alternative.
On December 13, 2021, Appeals issued a Notice of Determination
sustaining the filing of the 2010 and 2011 NFTLs. The header on the
Notice of Determination listed the years at issue as 2010, 2011, and “Due
Process – EH Levy – 2018.” EH is a commonly used acronym for
“equivalent hearing.” See Internal Revenue Manual Exhibit 8.22.4-3
(May 12, 2022). The header is the only time that 2018 is mentioned in
the Notice of Determination. An attachment to the Notice of
Determination contains the Appeals officer’s summary and
recommendations and refers only to 2010 and 2011 and petitioner’s
unpaid assessments for those years.
On January 11, 2022, petitioner filed a Petition for review of the
Notice of Determination for 2010, 2011, and 2018. On February 17,
2022, Appeals issued a Decision Letter on Equivalent Hearing for 2018
sustaining the NFTL filing. The Decision Letter stated that petitioner
did not request a CDP hearing during the 30-day period and advised
petitioner that it did not have the right to dispute Appeals’ decision in
this Court except that it may dispute Appeals’ decision that the hearing
request was untimely. After receipt of the Decision Letter, petitioner
filed a Petition for review of the Decision Letter, docket No. 5442-22L,
which has been consolidated with the case at docket No. 381-22. The
parties had not filed any motions in that case.
Respondent filed a Motion to Dismiss for Lack of Jurisdiction on
the grounds that petitioner’s hearing request for 2018 was untimely and
Appeals did not make a determination or issue a notice of determination
for 2018 for us to review. In opposing respondent’s Motion petitioner
argued that its CDP hearing request was timely filed during the 30-day
period by challenging the date that the NFTL was filed and the date
that the 2018 notice was issued. It also argued that the Notice of
Determination contained a determination for 2018 on the basis of the
reference to 2018 in the header. Alternatively, it argued that we should
extend the reasoning of Boechler and apply equitable tolling to the
30-day period for requesting a CDP hearing under section 6320(a)(3)(B).
It argued that the circumstances of these cases warrant equitable tolling
and that Appeals should have treated its late hearing request as timely
and should have issued a notice of determination for 2018.
6
By Order dated November 14, 2022, we held that petitioner’s
hearing request for 2018 was untimely in the absence of equitable
tolling. The NFTL was filed on March 15, 2021, and the 2018 notice was
issued on March 16, 2021. The statutory deadline for filing a timely
request for a CDP hearing was April 21, 2021, and the 2018 notice
incorrectly stated that the deadline was April 22, 2021. See § 6320(a)(3).
Regardless, petitioner submitted its request on April 23, 2021, and the
CDP hearing request was untimely in the absence of equitable tolling.
We further held that in the absence of equitable tolling the Notice of
Determination did not contain a determination for 2018 when it is read
together with the Attachment despite the reference in the header to
2018. See Lunsford v. Commissioner, 117 T.C. 159, 161–64 (2001)
(stating that the validity of a notice of determination is assessed on its
face, and a notice is valid if it clearly states that Appeals has made a
determination).
In the November 14, 2022, Order we stated that under Craig v.
Commissioner, 119 T.C. 252, 259 (2002), where Appeals erroneously
concluded that a CDP hearing request was late, the Court has
jurisdiction to determine whether the request was timely and to review
Appeals’ determination irrespective of the label that Appeals used on
the document notifying the taxpayer of its determination. We stated
that we must determine whether the 30-day period for submitting a
CDP hearing request is subject to equitable tolling and, if it is, whether
we would have jurisdiction under Craig to correct Appeals’
determination that the request was late and review as to 2018. We
directed the parties to address whether the doctrine of equitable tolling
should apply to CDP hearing requests under the principles set forth in
Boechler. We further directed the parties to examine the full body of law,
including Treasury Regulations, relating to whether the 30-day period
is a fixed deadline.
In response to our Order respondent concedes that Craig would
provide the Court with jurisdiction to review a decision letter issued
following an equivalent hearing if the taxpayer’s hearing request is
timely through the application of equitable tolling. Respondent’s brief
states: “We believe this Court could apply its precedent in Craig to hold
that a decision letter is a determination in a situation where a taxpayer’s
otherwise untimely hearing request is deemed timely through the
application of equitable tolling.
7
Discussion
I. Background
A. Statutory Provisions of CDP Regime
Section 6321 imposes a lien in favor of the United States on all
property and rights to property of a person liable for tax when a demand
for payment has been made and the person fails to pay the tax. A lien
arises when an assessment is made, but the Secretary must file an
NFTL for the lien to be valid against any purchaser, holder of a security
interest, mechanic’s lienor, or judgment lien creditor. §§ 6322, 6323(a).
The filing of an NFTL sets into action a series of mandates for the IRS
and rights for the taxpayer. Section 6320(a) requires the IRS to provide
written notice of the NFTL filing to the taxpayer during the 5-day notice
period. § 6320(a)(1) and (2). Section 6320(a)(3) describes the information
that must be included in the NFTL. Part of the required information is
notice that the taxpayer has “the right . . . to request a hearing during
the 30-day period beginning on the day after the 5-day [notice] period.”
§ 6320(a)(3)(B).
Section 6320(b) provides taxpayers with a “[r]ight to [a] fair
hearing.” Section 6320(b)(1) provides the procedural steps that the
taxpayer must take to obtain a CDP hearing and also grants authority
to Appeals to hold a hearing. It states that “[i]f the person requests a
hearing in writing under subsection (a)(3)(B) and states the grounds for
the requested hearing, such hearing shall be held by . . . Appeals.” By
way of cross-reference to subsection (a)(3)(B), the taxpayer has a right
to a hearing if it is requested within 30 days beginning on the day after
the 5-day notice period for the required NFTL. Taxpayers are limited to
one hearing for a taxable year and have a right to a CDP hearing before
an impartial Appeals officer. § 6320(b)(2) and (3).
Section 6330 provides similar notice and hearing rights regarding
the IRS’s intent to levy upon taxpayer property. The time periods for the
IRS’s written notice of intent to levy and for the taxpayer’s hearing
request for a proposed levy are slightly different from those for an NFTL.
The IRS must provide written notice of intent to levy not less than 30
days before the day of the first levy, and the IRS notice must explain
that the taxpayer has the right to request a hearing during that 30-day
period. § 6330(a)(2), (3)(B); Treas. Reg. § 301.6330-1(c)(1) (providing that
the 30-day period to request a hearing for a proposed levy commences
the day after the date of the IRS notice).
8
The conduct and scope of CDP hearings are governed by section
6330(c), (d), and (e). See § 6320(c). Section 6330(c) sets forth the
requirements for the conduct and scope “[i]n the case of any hearing
conducted under this section.” As part of the hearing, the Appeals officer
must obtain verification from the Secretary that the requirements of any
applicable law or administrative procedure have been met. § 6330(c)(1).
The taxpayer may raise any relevant issues relating to the unpaid tax
and proposed collection action and may propose collection alternatives.
§ 6330(c)(2). After the hearing, the Appeals officer is required to make a
determination that takes into consideration the verification process, the
issues raised by the taxpayer, and whether the proposed collection
action balances the need for the efficient collection of taxes with the
taxpayer’s legitimate concern that any collection action is no more
intrusive than necessary. § 6330(c)(3).
Section 6330(d)(1) allows the taxpayer to petition this Court
within 30 days of Appeals’ determination. The 30-day deadline for filing
a petition is a nonjurisdictional deadline that is subject to equitable
tolling. Boechler, P.C. v. Commissioner, 142 S. Ct. at 1501. We have
jurisdiction to review Appeals’ determination. § 6330(d)(1). A proposed
levy must be suspended until the conclusion of a CDP hearing and any
judicial review of Appeals’ determination. § 6330(e).
B. Legislative History
The CDP regime was enacted as part of the IRS Restructuring
and Reform Act of 1998, Pub. L. No. 105-206, § 3401, 112 Stat. 685, 746,
to establish “formal procedures designed to insure due process where the
IRS seeks to collect taxes.” H.R. Rep. No. 105-599, at 263 (1998) (Conf.
Rep.), as reprinted in 1998-3 C.B. 747, 1017. The CDP regime is
“designed to afford taxpayers due process in collections [with]
increase[d] fairness to taxpayers.” S. Rep. No. 105-174, at 67 (1998), as
reprinted in 1998-3 C.B. 537, 603. The Senate Finance Committee
explained that taxpayers should be entitled to the same rights and
protections in dealings with the IRS that persons have in dealing with
any other creditors and should receive a “meaningful hearing before the
IRS deprives them of their property.” Id.The conference report indicates that Congress intended that
taxpayers that face a levy should have a right to an administrative
hearing even if they do not timely request one. It states that “[t]he
Secretary must provide a hearing equivalent to the pre-levy hearing if
later requested by the taxpayer.” H.R. Rep. No. 105-599, at 266,
9
as reprinted in 1998-3 C.B. at 1020. The conference report does not
specify any differences between a timely requested hearing and an
untimely requested, postlevy hearing except with respect to the
suspension of the levy. It states:
[T]he Secretary is not required to suspend the levy process
pending the completion of a hearing that is not requested
within 30 days of the mailing of the Notice. If the taxpayer
did not receive the required notice and requests a hearing
after collection activity has begun, then collection shall be
suspended and a hearing provided to the taxpayer.
Id.
The conference report separately addresses judicial review of
Appeals’ determination but says nothing about the taxpayer’s right to
seek judicial review when a hearing request is untimely. Contra id.
at 289, as reprinted in 1998-3 C.B. at 1043 (stating that for 90-day period
of section 6213(a), “[i]f the [deficiency] petition is not filed within that
time period, the Tax Court does not have jurisdiction to consider the
petition”). It states that the conferees expect Appeals “will prepare a
written determination addressing the issues presented by the taxpayer
and considered at the hearing. The determination . . . may be appealed
to Tax Court.” Id. at 266, as reprinted in 1998-3 C.B. at 1020. The
conference report further states that “[n]o further hearings are provided
under this provision as a matter of right. . . . However, after the 30 day
period had expired, the IRS is not required to provide a hearing or delay
any levy . . . .” Id.
C. Treasury Regulations
The Treasury regulations reiterate the 30-day period for
requesting a CDP hearing and state that a taxpayer is entitled to a CDP
hearing “if the taxpayer timely requests such a hearing.” Treas. Reg.
§ 301.6320-1(b)(1); see also id. para. (c)(1), (2), Q&A-C3. Where a
taxpayer timely requests a CDP hearing but the request is missing
information required by the regulations, the regulations allow the
taxpayer to perfect the request within a reasonable time. 5 Treas. Reg.
§ 301.6320-1(c)(2), Q&A-C1(iii). For example, where a timely request
5 “[T]he IRS will make a reasonable attempt to contact the taxpayer and
request that the taxpayer comply with the unsatisfied requirements. The taxpayer
must perfect any timely written request . . . within a reasonable period of time after a
request from the IRS.” Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(iii).
10
fails to state the grounds for the hearing, the taxpayer may correct that
error after the 30-day period. Id. Q&A-C1(ii)(E), (iii); see also id.Q&A-C1(v) (providing that a taxpayer may affirm a timely request that
was signed on its behalf by an unauthorized representative within a
reasonable time after the 30-day period). A request that is perfected
within a reasonable time is considered timely. Id. Q&A-C7. A request
that is not perfected within a reasonable period is considered untimely.
Id.The regulations explain that if a taxpayer does not request a
hearing within the 30-day period, it forgoes the right to a CDP hearing
with respect to the unpaid tax and tax periods shown on the NFTL. Id.;
see also id. para. (i)(1) (“A taxpayer who fails to make a timely request
for a CDP hearing is not entitled to a CDP hearing.”); id. para. (c)(3)
(example 3) (stating that even if the untimeliness of a taxpayer’s hearing
request is attributable to the taxpayer’s being outside the United States,
vacationing, or otherwise not receiving the CDP notice until after the
30-day period expires, the taxpayer still is not entitled to a CDP
hearing). However, where taxpayers have failed to include the required
information in a timely filed hearing request, the regulations allow
taxpayers to provide the missing information after the 30-day period.
See Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(ii) (listing information that
taxpayers must include in hearing requests); id. (iii) (allowing taxpayers
to provide required information after the 30-day period where defective
hearing request is timely). The regulations direct Appeals to determine
the timeliness of any hearing request and state that Appeals has the
authority to determine the validity, sufficiency, and timeliness of both
the NFTL and the hearing request. Treas. Reg. § 301.6320-1(e)(1).
The regulations provide an alternative type of administrative
hearing, referred to as an equivalent hearing, to taxpayers that request
a hearing after the 30-day period. See id. para. (i)(1). We have stated
that equivalent hearings have “their genesis in the statute’s legislative
history and the regulations implementing Congressional intent as
gleaned from that history.” Craig, 119 T.C. at 258. When a hearing
request is untimely, the taxpayer will be notified of the request’s
untimeliness and offered an equivalent hearing without needing to
submit an additional request. Treas. Reg. § 301.6320-1(c)(2), Q&A-C7.
The regulations set a one-year deadline for taxpayers to request an
equivalent hearing beginning on the day after the 5-day notice period.
Id. para. (i)(2), Q&A-I7. An equivalent hearing is held by Appeals and
generally follows the same procedures as a CDP hearing. Id.subpara. (1). Appeals will consider the same issues that it would have
11
considered at a CDP hearing on the same matter. Id. subpara. (2),
Q&A-I2. However, after an equivalent hearing Appeals issues a
different type of document called a decision letter about its conclusions
to sustain or proceed with the collection action. Id. subparas. (1), (2),
Q&A-I5. A decision letter contains all the information that must be
included in a notice of determination except it states that the taxpayer
cannot seek judicial review of the decision letter. Id. subpara. (2),
Q&A-I5 and Q&A-I6.
The regulations state that taxpayers cannot seek judicial review
of the outcome of an equivalent hearing. Id. Q&A-I6. They provide that
“[s]ection 6320 does not authorize a taxpayer to appeal the decision of
Appeals with respect to an equivalent hearing.” Id. We have held that
taxpayers are not entitled to seek judicial review of a decision letter
issued following an equivalent hearing. Moorhous v. Commissioner, 116
T.C. 263, 269–70 (2001); Kennedy, 116 T.C. at 262.
According to the regulations, an equivalent hearing has one
additional difference from a CDP hearing. Collection actions are
suspended during a timely requested CDP hearing and any judicial
review. § 6330(e)(1). During an equivalent hearing, collection action may
be suspended on a case-by-case basis, but collection is not required to be
suspended. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4 (“Appeals may
request the IRS office with responsibility for collecting the taxes to
suspend all or some collection action . . . if it determines that such action
is appropriate or necessary under the circumstances.”).
D. Review of an Appeals’ Determination
Section 6330(d)(1) permits taxpayers to petition this Court to
review a determination by Appeals sustaining a collection action. When
a taxpayer fails to request a CDP hearing timely, Appeals is not required
to make a determination and accordingly there is no determination for
this Court to review. 6 Ramey v. Commissioner, 156 T.C. 1, 11 (2021);
6 Petitioner states that after Appeals has held a hearing, nothing in the statute
conditions our review on Appeals’ decision on the timeliness of the hearing request. We
do not understand petitioner to challenge that a determination is required for our
review. Rather, petitioner seems to argue that we may review Appeals’ decision with
respect to the 2018 notice because Appeals held one joint hearing for 2010, 2011, and
2018 and Appeals made a determination for 2010 and 2011. We rejected this argument
in our Order dated November 14, 2022. Appeals is authorized to hold hearings for
different tax periods at the same time and may combine an equivalent hearing with a
CDP hearing. Treas. Reg. § 301.6320-1(d)(1), (2), Q&A-D2 and Q&A-D3, (i)(1).
12
Offiler v. Commissioner, 114 T.C. 492, 498 (2000). Accordingly, the
absence of a determination is grounds for dismissal for lack of
jurisdiction. LG Kendrick, LLC v. Commissioner, 146 T.C. 17, 31 (2016),
aff’d, 684 F. App’x 744 (10th Cir. 2017); see Laing v. United States, 423
U.S. 161, 165 n.4 (1976) (issuing a valid notice of deficiency is a
jurisdictional prerequisite to filing a deficiency petition in the Tax Court
under section 6213(a)).
Taxpayers may not seek review by this Court of a decision letter
issued after an equivalent hearing; a decision letter does not constitute
a determination. See Orum v. Commissioner, 123 T.C. 1, 11 (2004), aff’d,
412 F.3d 819 (7th Cir. 2005); Moorhous, 116 T.C. at 270; Kennedy, 116
T.C. at 263. And as we have said, the issuance of a decision letter rather
than a determination turns on the timeliness of a taxpayer’s hearing
request. Thus, the question of whether the 30-day deadline of section
6320(a)(3)(B) may be equitably tolled affects our power to review the
outcome of an Appeals hearing. We could review the outcome of an
Appeals hearing where we determine that Appeals erroneously
concluded that a CDP hearing request was untimely and erroneously
provided an equivalent hearing. In such instance we can correct that
error and review the decision of the equivalent hearing as a
determination irrespective of the label that Appeals used on the
document notifying the taxpayer of the outcome of the Appeals hearing.
See Craig, 119 T.C. at 259. 7
In these cases, we must determine whether Appeals should have
made a determination with respect to the 2018 notice. To answer that
question, we must first decide whether the 30-day period for requesting
a CDP hearing is subject to equitable tolling. If it is subject to tolling, a
followup question is whether the circumstances of these cases warrant
equitable tolling. If Appeals should have equitably tolled the 30-day
period for requesting a CDP hearing, then Appeals should have made a
determination for 2018, issuance of the Decision Letter for 2018 rather
than a notice of determination would have been erroneous, and we could
review Appeals’ action with respect to 2018 as a determination.
7 We treat a decision as a determination (as opposed to remanding the case to
Appeals for further consideration) because, under the regulations, the two resolutions
generally are equivalent apart from the timeliness of the taxpayer’s hearing request
and the availability of judicial review. See Treas. Reg. § 301.6320-1(i).
13
E. Tax Court Precedent
In Kennedy, 116 T.C. at 262, we held that the 30-day period for
requesting a CDP hearing for a proposed levy under section
6330(a)(3)(B) is a fixed deadline. We stated that “section 6330 does not
authorize” the Commissioner to waive the time restrictions imposed
therein. Kennedy, 116 T.C. at 262. We held that when a taxpayer fails
to request a CDP hearing timely, Appeals is “not obliged to conduct the
administrative hearing contemplated under section 6330(b)” and “the
decision to conduct an equivalent hearing did not result in a waiver by
[the Commissioner] of the time restrictions within which [the taxpayer
is] required to request an Appeals Office hearing under section 6330.”
Id. We have interpreted Kennedy as also applying to the 30-day period
for requesting a CDP hearing for an NFTL filing under section
6320(a)(3)(B). Andre v. Commissioner, 127 T.C. 68, 70 (2006). We now
reconsider these holdings.
II. Statutory 30-Day Administrative Deadline
As a threshold matter, we must decide whether Appeals has
authority under the statute to review collection actions where the
taxpayer fails to submit a hearing request within the 30-day period. 8
Such an administrative deadline is said to be “jurisdictional” if it defines
the agency’s authority to hold hearings for untimely requests. See
Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013). An
administrative deadline that is “non-jurisdictional” is a claim-processing
rule that does not deprive the agency’s authority to hold hearings where
the deadline was missed. See id. at 154–56.
A filing deadline that is “jurisdictional” cannot be equitably tolled.
Id. at 154; see also United States v. Kwai Fun Wong, 575 U.S. 402,
408–09 (2015). Accordingly, before we can consider whether the 30-day
period of section 6320(a)(3)(B) is subject to equitable tolling, we must
decide whether it is a “jurisdictional” deadline, i.e., whether Appeals has
authority to hold hearings for untimely hearing requests. See Santos-
Zacaria v. Garland, 143 S. Ct. 1103, 1112 (2023). For the sake of
simplicity, we will refer to the question of whether the 30-day filing
deadline of section 6320(a)(3)(B) is “jurisdictional” or “non-
jurisdictional” in terms of whether the 30-day deadline imposes an
8 Respondent does not argue that Appeals lacks authority to hold an
administrative hearing for taxpayers that submit untimely hearing requests. Rather,
he argues that the 30-day period is fixed and not subject to equitable tolling.
14
“administrative bar” to Appeals’ authority to hold hearings. If it imposes
an administrative bar, it is “jurisdictional” with respect to Appeals’
authority and Appeals does not have authority to hold hearings for
untimely hearing requests and the deadline cannot be equitably tolled.
In such instances the term “jurisdictional” does not refer to this Court’s
jurisdiction to review Appeals’ determinations to sustain collection
actions although it would also affect our jurisdiction.
The Supreme Court has applied the same principles to resolve
whether an administrative filing deadline is an administrative bar that
it applies to determine whether a judicial filing deadline is
jurisdictional. Auburn Reg’l Med. Ctr., 568 U.S. at 154–56. It has
explained that every filing deadline must state, by definition, a time
after which a claim is barred but “most time bars . . . are
nonjurisdictional.” Kwai Fun Wong, 575 U.S. at 403; see also Wilkins v.
United States, 143 S. Ct. 870, 877 (2023); Auburn Reg’l Med. Ctr., 568
U.S. at 154 (“[W]e have repeatedly held that filing deadlines ordinarily
are not jurisdictional . . . .”). It has “described filing deadlines as
‘quintessential claim-processing rules,’ which ‘seek to promote the
orderly progress of litigation,’ but do not deprive a [tribunal] of authority
to hear a case.” Kwai Fun Wong, 575 U.S. at 410 (quoting Henderson v.
Shinseki, 562 U.S. 428, 435 (2011)). Jurisdictional deadlines are “rare.”
Id. However, even where an administrative deadline is not an
administrative bar, the deadline might not be subject to equitable
tolling. Auburn Reg’l Med. Ctr., 568 U.S. at 158–60 (finding an
administrative deadline for Medicare providers to request an
administrative hearing about reimbursements was not an
administrative bar (it was non-jurisdictional) but was not amenable to
equitable tolling). A statute and regulations thereunder may
categorically preclude equitable tolling of a nonjurisdictional deadline. 9
Id.; see Kwai Fun Wong, 575 U.S. at 408.
For a filing deadline to be an administrative bar, Congress must
clearly state that the deadline has that effect. 10 Arbaugh v. Y & H Corp.,
9 Respondent does not argue that the 30-day deadline is an administrative bar
but argues that equitable tolling is nevertheless categorically precluded.
10 The Supreme Court has also held that a judicial filing deadline is
jurisdictional on the basis that a long line of Supreme Court precedent left undisturbed
by Congress is a clear indication that Congress intended it as such. See John R. Sand
& Gravel Co. v. United States, 552 U.S. 130 (2008); Bowles v. Russell, 551 U.S. 205(2007). This principle of statutory construction is referred to as the prior-construction
canon. See Hallmark, 159 T.C. at 153. In Boechler, P.C. v. Commissioner, 142 S. Ct.
15546 U.S. 500, 515 (2006); see Kwai Fun Wong, 575 U.S. at 408–09.
“[A]bsent such a clear statement . . . ‘courts should treat the restriction
as nonjurisdictional . . . .’” Auburn Reg’l Med. Ctr., 568 U.S. at 153
(quoting Arbaugh, 546 U.S. at 516). The clear statement requirement is
a “high bar.” Kwai Fun Wong, 575 U.S. at 409. A filing deadline is not
an administrative bar even when it is important and framed in
mandatory and emphatic terms. Id. at 410. Under the clear statement
rule, it is not sufficient that the interpretation that makes the deadline
an administrative bar is more plausible or even better than one that
does not. Boechler, P.C. v. Commissioner, 142 S. Ct. at 1499 (“But in this
context, better is not enough.”). Where a statutory filing deadline is
subject to multiple plausible interpretations, some of which would make
the deadline an administrative bar, it is difficult to make the case that
such a reading is clear. Id. “Congress must do something special, beyond
setting an exception-free deadline,” to make it an administrative bar and
prohibit its tolling. 11 See Kwai Fun Wong, 575 U.S. at 410.
We must decide whether section 6320 contains a clear statement
that the 30-day period for requesting a CDP hearing is an
administrative bar, i.e., that Appeals’ authority to review collection
actions is conditioned on the taxpayer submitting a CDP hearing
request within the 30-day period. Traditional rules of statutory
construction must plainly show that Congress imposed a procedural bar
that would deprive Appeals of authority to review collection actions. Id.
We examine the text, context, and relevant historical treatment of the
statute to determine whether Congress made the required clear
statement. Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166 (2010); see
Kwai Fun Wong, 575 U.S. at 410-12. “Most important” is the text of the
statute. Kwai Fun Wong, 575 U.S. at 410.
We begin by looking at the text of the statute. The 30-day deadline
is in section 6320(a)(3)(B), the part of the statute that is directed at the
at 1500, the Supreme Court declined to apply this canon to interpret the section
6330(d)(1) filing deadline. No Supreme Court precedent supports a construction of the
30-day period of section 6320(a)(3)(B) as an administrative bar. The prior-construction
canon may also be invoked without Supreme Court precedent when, in the lower
courts, there has been an “unwavering line of administrative and judicial
interpretation,” Bragdon v. Abbott, 524 U.S. 624, 645 (1998), as in Hallmark, 159 T.C.
at 153–63, where we held that the 90-day deadline of section 6213(a) for filing a
petition with this Court for review of a notice of deficiency is jurisdictional. But as to
the 30-day deadline at issue here, we discern no “unwavering line” of precedent.
Consequently, we find the prior-construction canon inapplicable here.
11 We did not consider these concepts in Kennedy, 116 T.C. 255.
16
requirement that the IRS notify the taxpayer of an NFTL filing and that
provides the required contents of the IRS’s notice. Section 6320(a)(3)(B)
establishes when a hearing request will be timely. It does not speak in
terms of Appeals’ authority to review collection actions or otherwise
refer to Appeals’ authority to consider untimely hearing requests.
Section 6320(b)(1) provides the grant of authority to Appeals to
hold CDP hearings. It does not expressly condition Appeals’ authority
on a timely filed hearing request, and nothing in the statute prohibits
Appeals from providing CDP hearings to taxpayers that file untimely
requests. Section 6320(b)(1) also states what the taxpayer must do to
obtain a CDP hearing; the taxpayer must “request[] a hearing in writing
under subsection (a)(3)(B) and state[] the grounds for the requested
hearing.” The cross-reference to the 30-day period is in the part of the
sentence directed at what the taxpayer must do to obtain a CDP hearing.
It is not directed at Appeals’ authority to review collection actions. See
Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500 (“[I]ts short, 30-day
time limit is directed at the taxpayer, not the court.”). Moreover, the fact
that the cross-reference to the 30-day period is in the same sentence as
the grant of authority to Appeals is not a clear statement of
congressional intent that the untimeliness of a CDP hearing request
would deprive Appeals of authority to review the collection action. See
id. at 1499; Gonzalez v. Thaler, 565 U.S. 143, 147 (2012) (“Mere
proximity will not turn a rule that speaks in nonjurisdictional terms into
a jurisdictional hurdle.”); see also Auburn Reg’l Med. Ctr., 568 U.S.
at 155 (finding deadline and grant of authority in same section).
While a plausible interpretation of section 6320(b)(1) may be that
Appeals’ authority is limited to timely requested CDP hearings, we
learned from Boechler, P.C. v. Commissioner, 142 S. Ct. at 1499, that
even the most plausible reading is not enough. There is no clear
statement in the text of section 6320 that requires a taxpayer to comply
with the 30-day deadline for Appeals to have authority to review a
proposed collection action, and thus, we hold that the 30-day period is
not an administrative bar.
III. Equitable Tolling
Having decided that the 30-day deadline for requesting a CDP
hearing is not an administrative bar, we must decide whether it is
amenable to equitable tolling. Respondent argues it is not; he argues
that it is a fixed deadline and equitable tolling is categorically precluded.
17
The Supreme Court has adopted a rebuttable presumption that
“nonjurisdictional” filing deadlines are subject to equitable tolling in
suits against the government. Irwin v. Dep’t of Veteran Affairs, 498 U.S.
89, 95–96 (1990). “Equitable tolling is a traditional feature of American
jurisprudence and a background principle against which Congress
drafts limitations periods.” Boechler, P.C. v. Commissioner, 142 S. Ct.
at 1500; see Young v. United States, 535 U.S. 43, 49 (2002) (“It is
hornbook law that limitations periods are ‘customarily subject to
“equitable tolling,”’ unless tolling would be ‘inconsistent with the text of
the relevant statute . . . .’” (first quoting Irwin, 498 U.S. at 95; and then
quoting United States v. Beggerly, 534 U.S. 38, 48 (1998))). The Supreme
Court adopted the tolling presumption as a rule of statutory
interpretation to reflect congressional intent. It reasoned that the
presumption is “likely to be a realistic assessment of legislative intent
as well as a practically useful principle of interpretation.” 12 Irwin, 498
U.S. at 95. The presumption replaced the Court’s “ad hoc” approach to
determining whether filing deadlines are subject to equitable tolling
which had produced “unpredictability without the corresponding
advantage of greater fidelity to the intent of Congress.” Id.
To rebut the presumption, there must be an affirmative
indication from Congress that it intended to preclude equitable tolling.
Kwai Fun Wong, 575 U.S. at 420. The presumption is rebutted if there
is “good reason to believe that Congress did not want the equitable
tolling doctrine to apply,” Brockamp v. Commissioner, 519 U.S. 347, 350
(1997), or where equitable tolling “is inconsistent with the text of the
relevant statute,” Beggerly, 524 U.S. at 48 (citing Brockamp, 519 U.S.
347). Courts examine the statute’s text, context, and purpose to
determine whether Congress intended to rebut the presumption. See
Arellano v. McDonough, 143 S. Ct. 543, 548 (2023); Boechler, P.C. v.
Commissioner, 142 S. Ct. at 1500; Holland v. Florida, 560 U.S. 631, 647
(2010); Brockamp, 519 U.S. at 350.
Petitioner relies on the tolling presumption. Respondent does not
directly challenge application of the presumption. He states “assuming
the presumption applies to agencies,” it is rebutted here. The
presumption does not apply to all administrative deadlines. In Auburn
12 In adopting the presumption, the Supreme Court recognized that once
Congress has waived sovereign immunity, allowing equitable tolling “amounts to little,
if any, broadening of the congressional waiver” and the “same rebuttable presumption
of equitable tolling applicable to suits against private defendants should also apply.”
Irwin, 498 U.S. at 95–96.
18
Regional Medical Center, 568 U.S. at 161, the Supreme Court did not
apply the presumption to a filing deadline for institutional Medicare
providers to appeal reimbursement decisions to an administrative
agency, stating that “[w]e have never applied the Irwin presumption to
an agency’s internal appeal deadline,” id. at 158. In Brockamp, 519 U.S.
at 350–51, the Supreme Court assumed for the sake of argument that
the presumption applied to tax refund claims but held that, even if it did
apply, the presumption was rebutted. And in analyzing its own
authority to hear a case (rather than the authority of the relevant
administrative agency), the Supreme Court has since allowed equitable
tolling of an agency filing deadline but did not address the
presumption. 13 Kwai Fun Wong, 575 U.S. at 407 (finding that equitable
tolling of an administrative deadline under the Federal Tort Claims Act
was permitted for determining if the statutory prerequisites to bringing
a claim in court were satisfied).
Absent the presumption, courts have used traditional tools of
statutory construction to determine whether equitable tolling is
consistent with the text of the statute and congressional intent for
enacting the statute. Bowen v. City of New York, 476 U.S. 467, 480
(1986). “[W]hether equitable tolling is available is fundamentally a
question of statutory intent.” Lozano v. Montoya Alvarez, 572 U.S. 1, 10
(2014). Pre-Irwin cases consider the text, context, and purpose of the
statute to determine whether Congress intended for a deadline to be
nonjurisdictional and thus open to equitable tolling. See Zipes v. Trans
World Airlines, Inc., 455 U.S. 385, 393–94 (1982) (filing a timely
complaint with Equal Employment Opportunity Commission is not a
jurisdictional prerequisite to suit in federal court and is subject to
waiver, estoppel, and equitable tolling). Post-Irwin cases also consider
the statute’s text, context, and purpose to determine whether there is a
congressional intent to rebut the presumption. See Boechler, P.C. v.
Commissioner, 142 S. Ct. at 1500; Holland, 560 U.S. at 647; Brockamp,
519 U.S. at 350.
Before we proceed, it is worth noting that the cases before us
differ from most of the cases cited above in an important respect. With
a few exceptions, those cases generally analyze equitable tolling in the
13 In Kwai Fun Wong, 575 U.S. at 408 n.2, after finding that the agency and
judicial deadlines at issue were nonjurisdictional, the Supreme Court held that both
were subject to equitable tolling without separately addressing that issue because the
government relied on the same indicia of congressional intent for its jurisdictional and
tolling arguments and made no independent argument against equitable tolling.
19
context of determining whether and how, under the relevant statutory
provisions, a court (as opposed to an administrative agency) may
consider a case. In Kwai Fun Wong, 575 U.S. 402, for example, the
Supreme Court considered the Federal Tort Claims Act (FTCA), which
stated, in relevant part, that a tort claim against the United States is
“forever barred” unless it is presented to the appropriate federal agency
within two years after the claim accrues. The Court decided that, for
purposes of a court’s consideration of a claim under the FTCA, the court
may equitably toll the two-year deadline. Id. at 412. Similarly, in Zipes,
455 U.S. at 388–89, the Court considered Title VII of the Civil Rights
Act of 1964, which required, in relevant part, that individuals pressing
employment discrimination claims file charges with an administrative
agency by a certain time before bringing suit in court. The Court
concluded that, for purposes of determining a court’s authority to hear a
case under the relevant provisions, the administrative filing deadlines
were nonjurisdictional and subject to equitable tolling (also waiver and
estoppel) by the court. Id. at 393; see also Brockamp, 519 U.S. 347(considering whether, in determining a court’s authority to entertain a
tax refund claim, the court may apply equitable tolling to the underlying
administrative deadline).
By contrast, in the cases before us we decide whether an agency
must consider equitable tolling in administering its own deadline—
specifically, in determining whether to grant a CDP hearing. Additional
considerations may well be relevant in this type of case. 14 Here,
however, we conclude that the circumstances are sufficiently analogous
to apply the caselaw we describe above, for two principal reasons.
First, while the context of our case is unusual, it is not unique,
and in similar cases courts have applied general equitable tolling
principles. For example, the U.S. Court of Appeals for the Eleventh
Circuit has considered an agency’s administration of its own deadlines
in the immigration context. See Avila-Santoyo v. U.S. Att’y Gen., 713
F.3d 1357 (11th Cir. 2013). Applying the relevant caselaw, the court held
that the Board of Immigration Appeals was required to consider
equitable tolling when enforcing certain deadlines for seeking its review.
Id. at 1364. On similar facts, other courts of appeal have reached the
14 For example, implementing regulations may opine on the availability or
nonavailability of equitable tolling, see Auburn Reg’l Med. Ctr., 568 U.S. at 157, and
we address this point further below. Additionally, some administrative deadlines may
be purely internal, with no implications for a court’s authority to review a claim. See,
e.g., PAMC, Ltd. v. Sebelius, 747 F.3d 1214 (9th Cir. 2014). The presence or absence of
such considerations may well affect our analysis in future cases.
20
same conclusion. See, e.g., Harchenko v. INS, 379 F.3d 405, 409–10 (6th
Cir. 2004); Riley v. INS, 310 F.3d 1253, 1258 (10th Cir. 2002); Socop-
Gonzalez v. INS, 272 F.3d 1176 (9th Cir. 2001). And when, in a different
context, the Supreme Court considered the same question—whether an
agency was required to equitably toll its own deadline—the Court did
not hold the caselaw inapplicable; rather, it distinguished the cases
according to the particular circumstances before it. 15 See Auburn Reg’l
Med. Ctr., 568 U.S. at 158–60.
Second, and significantly, the agency deadline at issue here
implicates judicial review in much the same way as the deadlines in
Kwai Fun Wong, Zipes, and other similar cases did, albeit less directly.
Equitable tolling cases typically involve a straightforward court filing
deadline, see, e.g., Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, or
else an agency filing requirement that must be satisfied before a court
can hear a case, see, e.g., Kwai Fun Wong, 575 U.S. 402. And they
typically hold that, in appropriate cases, courts may toll the relevant
deadlines, whether they be administrative or judicial, to preserve the
court’s ability to consider the case.
Here, the mechanics are different, but the effect is the same.
Specifically, this Court’s review under section 6330(d)(1) is predicated
on Appeals’ issuing a determination rather than a decision. And under
the implementing regulations, the only criteria Appeals considers in
determining whether to issue a decision (which we cannot review) and a
determination (which we can review) is the timeliness of a taxpayer’s
CDP hearing request. Thus, the 30-day filing deadline, administered by
Appeals, governs the Court’s ability to hear a CDP case in much the
same way as the deadlines at issue in the other cases. In other words
the 30-day deadline in substance operates as a statute of limitations for
a taxpayer’s right to seek judicial review. Cf. Lozano, 572 U.S. at 13–14
(explaining that equitable tolling is most appropriately applied to
statutes of limitations, which “establish the period of time within which
a claimant must bring an action” (quoting Heimeshoff v. Hartford Life
& Accident Ins. Co., 571 U.S. 99, 105 (2013))).
Accordingly, cases that consider equitable tolling in these related
contexts are instructive in our examination of congressional intent. See
id. at 10 (“Because the doctrine effectively extends an otherwise discrete
15 Those circumstances included, among other things, the governing
regulations, which the Court read as precluding equitable tolling. Auburn Reg’l Med.
Ctr., 568 U.S. at 157.
21
limitations period set by Congress, whether equitable tolling is available
is fundamentally a question of statutory intent.”). We place significant
weight on the Supreme Court’s understanding of congressional intent
under the CDP regime as stated in Boechler. Even without a
presumption in favor of equitable tolling, we are convinced that
equitable tolling of the 30-day period to request a CDP hearing is
consistent with the text of the statute and congressional intent for
enacting the CDP regime.
A. Terms of the Statute
Section 6320(b) unambiguously provides taxpayers with the right
to a CDP hearing if timely requested. However, it does not expressly
address equitable tolling, and its plain text does not preclude equitable
tolling. Rather, it prescribes the procedural steps for the taxpayer to
obtain administrative review of proposed collection actions: A taxpayer
must “request[] a hearing in writing under subsection (a)(3)(B) and
state[] the grounds for the requested hearing.” § 6320(b)(1). Section
6320(b) incorporates the 30-day period by cross-reference. A simple
cross-reference is not a clear expression that the failure to request a
hearing during the 30-day period is an absolute bar to a CDP hearing or
that equitable tolling is categorically precluded.
We find that section 6320 is silent as to equitable tolling and
further examine whether equitable tolling is otherwise consistent with
the text of the statute. Equitable tolling is not permitted where it is
inconsistent with the text of the relevant statute. Brockamp, 519 U.S.
at 350–51. We consider whether the text manifests a “clear intent” to
preclude equitable tolling or “leaves room for . . . flexibility.”
Nutraceutical Corp. v. Lambert, 139 S. Ct. 710, 714 (2019) (equitable
tolling of civil procedure rules). There is nothing in the text of section
6320 that suggests that the 30-day period is an absolute or inflexible
deadline. Section 6320(a)(3)(B) lacks emphatic terms. The lack of
“unusually emphatic” terms suggests equitable tolling is available.
Holland, 560 U.S. at 647. The Supreme Court has allowed equitable
tolling even for a deadline that emphatically states that untimely claims
are “forever barred.” Kwai Fun Wong, 575 U.S. at 420. Section 6320 does
not impose, in unequivocal terms, an absolute bar to a CDP hearing
when a request is untimely. Equitable tolling is consistent with the
terms of the statute.
Other factors also support equitable tolling. The deadline is short.
See Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500; Beggerly, 524
22
U.S. at 48–49 (finding that “unusually generous” 12-year limitations
period was “incompatible” with equitable tolling). The 30-day period is
contained in the part of the statute directed at the contents of the IRS
notice to the taxpayer of the NFTL filing. It is not directed at defining
the taxpayer’s rights or directed at Appeals’ authority to provide CDP
hearings. Rather, section 6330(b) defines the taxpayer’s hearing rights,
the right to one hearing before an impartial Appeals officer. Nothing in
section 6320 expressly or impliedly prohibits Appeals from asserting
authority to review collection actions from an untimely hearing request
when equitable considerations warrant it. The remedial nature of the
CDP regime also supports equitable tolling. The CDP regime is
unusually protective of taxpayers who are often not represented by
lawyers. The Supreme Court found that each of these factors supported
equitable tolling of the section 6330(d)(1) 30-day deadline to petition this
Court in Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500, and they
apply equally to the 30-day period for requesting a CDP hearing. 16 The
context and underlying policy of the CDP regime indicate congressional
intent to allow equitable tolling of the 30-day period for requesting a
hearing.
Section 6320 is easily distinguishable from the section 6511
deadline for filing tax refund claims at issue in Brockamp, which is not
subject to equitable tolling. Section 6511 is silent as to whether
equitable tolling is available but is written in “unusually emphatic form”
in a “highly detailed technical manner” with an “explicit listing of
exceptions” that contain both procedural and substantive limitations,
and it reiterates the filing deadline several times in several different
ways. 17 Brockamp, 519 U.S. at 350–52; see Holland, 560 U.S. at 646(finding that section 6511 is silent as to whether equitable tolling is
available). Equitable tolling is not one of the listed exceptions to the
filing deadline. Brockamp, 519 U.S. at 351. These features of section
6511 are a strong indication that Congress did not intend for other
“unmentioned, open-ended, ‘equitable’ exceptions” to be read into the
statute. Brockamp, 519 U.S. at 352. Conversely, section 6320 is not
unusually emphatic, highly detailed, or technical. Nor are there explicit
exceptions in section 6320 that provide a reason to foreclose the
application of the broader doctrine of equitable tolling. The Supreme
16 While the Supreme Court relied on the tolling presumption in Boechler, these
factors are equally relevant to determine congressional intent even if the presumption
does not apply to the 30-day period for requesting a CDP hearing.
17 Tolling would have also affected the amount of the tax refunds. Brockamp,
519 U.S. at 352.
23
Court considered these distinguishing characteristics of the CDP regime
in Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500–01, when it held
that the 30-day deadline to seek judicial review in section 6330(d)(1) is
subject to equitable tolling.
The CDP regime’s main, and perhaps only, similarity with section
6511 is that both are part of the Code. Respondent relies on this
similarity, arguing that tax law is incompatible with equitable tolling.
The subject matter of the underlying statute is relevant to determining
congressional intent. See Beggerly, 524 U.S. at 48–49 (finding that the
need for certainty in the underlying subject matter (land ownership)
weighed against tolling). However, the Supreme Court has already
rejected this argument in Boechler. See Boechler, P.C. v. Commissioner,
142 S. Ct. at 1501–02; see also Volpicelli v. United States, 777 F.3d 1042(9th Cir. 2015) (finding that equitable tolling applies to the deadline for
filing a suit for wrongful levy under section 6532(c)).
Respondent argues that the IRS needs a fixed 30-day deadline so
that it can determine quickly and definitively whether it may begin to
collect. He argues that the CDP regime is the result of a careful balance
that Congress struck between affording taxpayers an opportunity for
review of collection actions and the IRS’s need for efficient and prompt
collection which would be subverted if equitable tolling applies and that
equitable tolling would complicate and delay the collection efforts. We
disagree; the CDP regime does not demand certainty or promptness
without equitable considerations. Congress chose to add taxpayer
protections with the CDP regime, and we must honor that choice. The
purpose of the CDP regime is to bring fairness and due process to the
collection process. Congress did not intend to eliminate all delays posed
by untimely hearing requests as evidenced by the conference report’s
suggestion that in some circumstances proposed levies should be
suspended even when a hearing request is untimely. H.R. Rep.
No. 105-599, at 266, as reprinted in 1998-3 C.B. at 1020. The Treasury
regulations conform with congressional intent and allow suspension of
proposed levies upon an untimely hearing request on a case-by-case
basis. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4. This discredits
respondent’s argument that a “clear line” is necessary to maintain
efficient tax collection.
Equitable tolling of the 30-day period under section 6320(a)(3)(B)
would not create the administrative burden that respondent anticipates,
in contrast to the period discussed in Brockamp. In Brockamp, 519 U.S.
at 352, the Supreme Court cited the administrative burden of processing
24
more than “200 million tax returns” and “more than 90 million refunds”
each year as a reason not to apply equitable tolling. Reading an
equitable tolling exception into section 6511 for tax refund claims “could
create serious administrative problems by forcing the IRS to respond to
. . . large numbers of late claims . . . which, upon close inspection, might
turn out to lack sufficient equitable justification.” Brockamp, 519 U.S.
at 352. In contrast Appeals closes approximately 4,100 to 7,100
equivalent hearings annually. 18 Concerns about equitable tolling “pale
in comparison” to those in Brockamp, which dealt with a central
provision of tax law. See Boechler, P.C. v. Commissioner, 142 S. Ct. at
1501. Like the section 6330(d)(1) deadline for filing a petition with this
Court, the 30-day period for requesting a CDP hearing “serves a far more
limited and ancillary role in the tax collection systems.” Boechler, P.C.
v. Commissioner, 142 S. Ct. at 1501. Moreover, the short 30-day periods
under sections 6320(a)(3)(B) and 6330(d)(1) for the CDP hearing request
and the petition to this Court for review of Appeals’ determination,
respectively, are substantially shorter than the deadline for filing a
refund claim under section 6511(a), the later of 3 years from the time
the return was filed or 2 years from the time the tax was paid. Such
short filing periods support equitable tolling. See Boechler, P.C. v.
Commissioner, 142 S. Ct. at 1500.
A stated purpose of CDP hearings is to balance taxpayers’
concerns about the collection action against the government’s need for
prompt tax collection. See § 6330(c)(3)(C). The CDP hearing is an
opportunity for taxpayers not only to challenge the validity of the
collection action but also to propose collection alternatives and discuss
those alternatives with the IRS before the IRS proceeds with collection.
§ 6330(c)(2)(A)(iii). These principles are reinforced by the application of
equitable tolling.
B. Legislative History
“For those who consider legislative history relevant,” Warger v.
Shauers, 574 U.S. 40, 48 (2014), the legislative history here does not
18 See Treasury Inspector Gen. for Tax Admin., Review of the Independent
Office of Appeals Collection Due Process Program, Report No. 2022-10-043, at 6 (Aug.
18, 2022) (Appeals closed 24,568 CDP cases and 4,099 equivalent hearing cases in
fiscal year 2021); id. Report No. 2021-10-049, at 7 (Aug. 4, 2021) (Appeals closed 21,438
CDP cases and 4,285 equivalent hearing cases in fiscal year 2020); id. Report No. 2017-
10-055, at 3 (Sept. 11, 2017) (Appeals closed 34,229 CDP cases and 7,151 equivalent
hearing cases in fiscal year 2016). Reports are available at https://www.treasury.gov/
tigta/oa_auditreports.
25
change our conclusion. It does not clearly establish that Congress
intended the 30-day period for requesting a CDP hearing to be a fixed
deadline that is not amenable to equitable tolling. The conference report
states congressional intent that the IRS is required to provide some type
of administrative hearing to taxpayers that fail to request one within
the 30-day period. It states that a postlevy hearing is to be “equivalent”
to a pre-levy hearing but does not otherwise specify what type of
protections taxpayers should receive. It does not indicate congressional
intent as to the doctrine of equitable tolling. Significantly, it does not
suggest that taxpayers should receive any different treatment except
that the IRS is not required to suspend the levy. The conference report
separately addresses judicial review of collection actions but says
nothing about the taxpayer’s right to seek judicial review when the
hearing request is untimely. It does not expressly or implicitly prohibit
taxpayers from having an opportunity for judicial review following an
untimely hearing request. See H.R. Rep. No. 105-599, at 264,
as reprinted in 1998-3 C.B. at 1018.
Arguably, the conference report’s mention of postlevy hearings
supports a finding that Congress intended to allow application of the
broader doctrine of equitable tolling within the CDP regime. When
Congress has indicated its intent that some tolling should be permitted,
the Supreme Court has relied on the provision of some tolling as
evidence of congressional intent that the broader doctrine of equitable
tolling should apply. The statute at issue in Bowen, 476 U.S. at 480,
expressly authorized the Secretary to provide some tolling of the filing
deadline at issue (the filing period for judicial review of a Social Security
benefits decision). The Supreme Court relied on the express provision
for some tolling as congressional intent in favor of equitable tolling even
though it is broader than the tolling permitted by the statute. The
Supreme Court stated that Congress expressed a “clear intention” to
allow some tolling and concluded that application of the broader doctrine
of equitable tolling was “fully ‘consistent with the overall congressional
purpose’ and is ‘nowhere eschewed by Congress.’” 19 Id. (quoting Honda
v. Clark, 386 U.S. 484, 501 (1967)).
We recognize that the conference report contains seemingly
unqualified text that “[n]o further hearings are provided . . . as a matter
19 While the Supreme Court found in Bowen, 476 U.S. at 480, that Congress
expressed a clear intention to allow equitable tolling, the Supreme Court has not
required a clearly expressed intention before it has found a deadline is subject to
equitable tolling.
26
of right” and “after the 30 day period had expired, the IRS is not required
to provide a hearing or delay any levy.” H.R. Rep. No. 105-599, at 266,
as reprinted in 1998-3 C.B. at 1020. However, neither of these
statements is an absolute bar to equitable tolling. “[T]he simple fact that
a deadline is phrased in an unqualified manner does not necessarily
establish that tolling is unavailable.” Nutraceutical Corp., 139 S. Ct.
at 715. Moreover, reading these two statements as congressional intent
to preclude equitable tolling would make the conference report
internally inconsistent because the conference report clearly indicates
that with respect to levy actions taxpayers have a right to a postlevy
hearing “after the 30 day period” equivalent to a prelevy hearing. In
summary the conference report indicates congressional intent that a
hearing is not required but is appropriate when the circumstances
warrant it and does not categorically preclude equitable tolling.
Also, the Treasury regulations do not treat the latter of these
statements in the conference report as a bar to equitable considerations.
The regulations permit the IRS to “delay any levy” on a case-by-case
basis. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4. Nor will we treat these
statements as manifesting congressional intent for an absolute bar to
taxpayers’ receiving an administrative hearing with the opportunity for
judicial review. Allowing proposed levies to be suspended in some
circumstances clearly indicates congressional intent that equitable
considerations should be taken into account within the administrative
process of the CDP regime. Nothing in the conference report suggests
that Congress intended to deny judicial review when hearing requests
are untimely. Post-Boechler, we do not interpret the conference report
to impose a categorical prohibition of equitable tolling of the 30-day
period for seeking Appeals’ review of the collection action as such a
prohibition would deny taxpayers that request a CDP hearing after the
30-day period the right to seek judicial review.
C. Treasury Regulations
Respondent argues that the Treasury regulations implement
Congress’s choice to provide equivalent hearings to taxpayers that file
untimely hearing requests and preclude equitable tolling. The
regulations state that a taxpayer that does not timely request a hearing
“forgoes the right to a CDP hearing” and will be “offered an equivalent
hearing.” Treas. Reg. § 301.6320-1(c)(2), Q&A-C7. Respondent argues
that the regulations’ provision of equivalent hearings is a reasonable
interpretation of the statute. We do not need to address that argument
because its basic premise, i.e., that the regulations categorically
27
preclude equitable tolling, is wrong. The regulations are silent as to
equitable tolling. They allow for equitable considerations with respect to
the 30-day deadline and do not interpret the deadline as strict or
inflexible.
1. Equivalent Hearings
The regulations establish the procedures for equivalent hearings,
and nothing in those procedures categorically precludes equitable
tolling. According to the regulations, both CDP and equivalent hearings
are conducted by Appeals, follow the same procedures, consider the
same issues, and end with the issuance of a document that contains the
same information. Treas. Reg. § 301.6320-1(i)(1), (2), Q&A-I2, Q&A-I5;
see Craig, 119 T.C. at 258–59. None of these provisions is a categorical
bar to equitable tolling. The regulations state that “[s]ection 6320 does
not authorize a taxpayer to appeal the decision of Appeals with respect
to an equivalent hearing.” Treas. Reg. § 301.6320-1(i)(2), Q&A-I6.
However, under Craig, if the 30-day period is tolled, we would review
Appeals’ conclusion from an equivalent hearing as a determination.
Equivalent hearings can be viewed as an equitable exception to
the 30-day period. However, the existence of an express equitable
exception to a filing deadline does not foreclose the application of the
broader doctrine of equitable tolling. See Boechler, P.C. v. Commissioner,
142 S. Ct. at 1501 (finding that a single exception that prohibits
taxpayers from filing a petition because of a bankruptcy proceeding does
not preclude equitable tolling); Holland, 560 U.S. at 647–48 (finding
that equitable tolling applied to a statute that “is silent as to equitable
tolling while containing one provision that expressly refers to a different
kind of tolling”); Young, 535 U.S. at 53 (finding that an unrelated,
express tolling provision in the same subsection as the limitations period
does not indicate a statutory intent to preclude equitable tolling but
instead demonstrates that the statute “incorporates traditional
equitable principles”); see also Beggerly, 524 U.S. at 48–49 (finding no
equitable tolling for a statute that “already effectively allowed for
equitable tolling” by providing that the limitations period did not begin
to run until the plaintiff knew or should have known about the claim).
We find that the provision of equivalent hearings does not necessarily
bar equitable tolling of the 30-day period.
There are instances where the discretion granted to agencies to
determine the application of equitable considerations must be respected
and may preclude application of equitable tolling. In Auburn Regional
28
Medical Center, 568 U.S. at 157, the statute provided for a 180-day
administrative deadline, and the agency regulation extended the
deadline for a maximum of 3 years “for good cause shown.” The plaintiff
filed a claim over 10 years late. The Supreme Court thought that the
regulation was an adequate substitute for equitable tolling and held
against equitable tolling beyond the 3-year regulatory deadline. Id.
at 157–58. The CDP regime is clearly distinguishable from the Medicare
reimbursement process at issue in Auburn Regional Medical Center,
which is “not designed to be ‘“unusually protective” of claimants’” who
were “sophisticated,” “institutional,” “repeat players” that were
“assisted by legal counsel.” Id. at 160 (quoting Bowen, 476 U.S. at 480);
see also Bowen, 476 U.S. at 480 (finding equitable tolling allowed for
deadline in a statute that provided for some tolling and is “unusually
protective” of claimants (quoting Heckler v. Day, 467 U.S. 104, 106
(1984))). In the light of the remedial nature of the CDP regime, the
regulations’ provision of equivalent hearings does not preclude the
application of the broader doctrine of equitable tolling. 20
Nor do the regulations contain other statements precluding the
application of equitable tolling. The provisions most supportive of
respondent’s position include Treasury Regulation § 301.6320-1(c)(2),
Q&A-C4 (explaining the criteria Appeals uses to determine the
timeliness of a CDP hearing request without mention of equitable
tolling), Q&A-C7 (stating that if a taxpayer fails to request a CDP
hearing within the 30-day period, “the taxpayer foregoes the right to a
CDP hearing”), and paragraph (c)(3) (example 3) (explaining that, even
if a taxpayer’s untimeliness is attributable to being outside the United
States, vacationing, or otherwise not receiving the CDP notice until after
the 30-day period, the taxpayer still is not entitled to a CDP hearing).
But, unlike the regulation the Supreme Court considered, these
provisions are not irreconcilable with equitable tolling. See Auburn Reg’l
Med. Ctr., 568 U.S. at 156–57.
To begin with, none of the provisions specifically states that
equitable tolling is unavailable, whereas the regulation in Auburn
20 We need not consider whether to grant deference to an agency interpretation
of a Treasury regulation under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), because
respondent does not argue that his interpretation should be granted deference.
Furthermore, the regulation is silent on the application of equitable tolling and does
not contain a genuine ambiguity, and respondent’s argument that equitable tolling is
precluded under the statute is not based on authoritative, technical expertise or fair
and considered judgment in the light of Boechler.
29
Regional Medical Center “[spoke] in no uncertain terms.” 21 Id. at 156.
Additionally, where possible, we interpret regulations consistently with
the governing statute. See, e.g., Long Island Care at Home, Ltd. v. Coke,
551 U.S. 158, 169–70 (2007); Emery Mineral Corp. v. Sec’y of Labor, 744
F.2d 1411, 1414 (10th Cir. 1984); cf. League of Wilderness Defs./Blue
Mountains Diversity Project v. Forsgren, 309 F.3d 1181, 1190 (9th Cir.
2002) (“An agency simply may not interpret a regulation in a way that
contravenes a statute.”). As we have already found, equitable tolling is
consistent with the text of section 6320. And equitable tolling may be
appropriate for reasons not addressed by the regulations. That the
regulations provide that exceptions generally are unavailable in certain
enumerated circumstances does not mean that exceptions are never
available. Accordingly, “we cannot say that . . . allowing for equitable
tolling would ‘essentially gut’ the regulatory scheme.” See Avila-
Santoyo, 713 F.3d at 1364 n.6 (quoting Auburn Reg’l Med. Ctr., 568 U.S.
at 157).
2. Equitable Considerations in the Regulations
Other parts of the Treasury regulations allow for equitable
considerations and do not interpret the 30-day period as a fixed
deadline. The regulations allow taxpayers to perfect defective hearing
requests after the 30-day period, a clear example of equitable tolling
permitted by the regulations. See Irwin, 498 U.S. at 96 (and cases cited
thereat) (finding equitable tolling can be used to allow parties to correct
defective pleadings). The regulations list information that taxpayers
must include in hearing requests and permit taxpayers to provide
missing information after the deadline. Treas. Reg. § 301.6320-1(c)(2),
Q&A-C1(ii) and (iii). Significantly, the regulations allow late compliance
with the express requirements of the statute. Section 6320(b)(1) requires
that the taxpayer request a hearing in writing and state the grounds for
the hearing. The regulations require that a hearing request state “[t]he
reason or reasons why the taxpayer disagrees” with the collection action
but allow taxpayers to provide this information after the 30-day
deadline. Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(ii)(E), (iii); see id.Q&A-C1(ii) (listing information that taxpayers must include in hearing
requests). The regulations also seemingly would allow taxpayers to
21 The regulation reads as follows: “A request for a Board hearing filed after
[the 180-day time limit] shall be dismissed by the Board, except that for good cause
shown, the time limit may be extended. However, no such extension shall be granted
by the Board if such request is filed more than 3 years after the date the notice of the
intermediary’s determination is mailed to the provider.” 42 C.F.R. § 405.1841(b)
(2007).
30
receive CDP hearings even when they request the hearing after the
30-day period so long as they submitted a document contesting the
collection action during the 30-day period although not specifically
requesting a hearing. Treas. Reg. § 301.6320-1(c)(2), Q&A-C1(ii)(D), (iii).
The regulations thus incorporate equitable considerations and allow for
exceptions to the 30-day deadline.
3. Suspension of Levy Following Untimely Requests
The Treasury regulations deviate from the prompt collection that
respondent says section 6320 demands. Appeals can request that a
collection action be suspended following an untimely hearing request on
a case-by-case basis. Treas. Reg. § 301.6320-1(i)(2), Q&A-I4. Thus,
Appeals is already weighing individualized equities of untimely hearing
request cases. The regulations show that a deadline need not be binding
when individual equities require otherwise. Notably, the part of the
regulations addressing the suspension of levies implements a statutory
provision that also cross-references a 30-day period for filing a CDP
hearing. Section 6330(e)(1) provides that a levy action is suspended “if a
hearing is requested under subsection (a)(3)(B)” of section 6330 during
the pendency of “such hearing.” The regulations do not interpret the
cross-reference as an absolute bar to equitable considerations.
Accordingly, they comport with our understanding that the cross-
reference in section 6320(b)(1) to the section 6320(a)(3)(B) 30-day period
does not categorically preclude equitable tolling of the 30-day period.
IV. Conclusion
Taxpayers must pursue a CDP hearing before they can seek
judicial review. A categorical prohibition of equitable tolling of the filing
deadline for Appeals’ review of collection actions would be contrary to
Congressional intent. It would mean that we would protect a taxpayer’s
ability to seek judicial review through equitable tolling of the section
6330(d) deadline for filing a petition while denying taxpayers the
possibility of equitable tolling to obtain Appeals’ review and a
determination for this Court to review. Although the Supreme Court did
not address the 30-day period for requesting a CDP hearing in Boechler,
we will not apply a stricter standard to the administrative filing
deadline. Congress allowed for equitable tolling of the judicial filing
deadline in section 6330(d)(1). Boechler, P.C. v. Commissioner, 142 S. Ct.
at 1500–01. It would not have intended to place a separate procedural
obstacle to access this Court by precluding tolling of the 30-day period
for requesting a CDP hearing.
31
Equitable tolling furthers the basic statutory purposes of the CDP
regime of due process, protection, and fairness to taxpayers. We find
that congressional intent is effected by applying equitable tolling to the
30-day period. We overrule Kennedy, 116 T.C. 255, to the extent that it
holds that Appeals is not authorized to waive the 30-day period for
requesting a CDP hearing and that the 30-day period is a fixed deadline
that is not amenable to equitable tolling. We hold that the 30-day period
for requesting a CDP hearing may be equitably tolled where the
circumstances warrant it.
We would have jurisdiction to review an erroneously issued
decision letter instead of a determination where a CDP hearing request
would be timely on the basis of equitable tolling. Appeals issued the
Notice of Determination before the Supreme Court issued its opinion in
Boechler and did not have reason to consider whether the facts of these
cases warrant equitable tolling of the 30-day period under section
6320(a)(3)(B). Accordingly, we will remand the collection action for 2018
to Appeals to determine whether the circumstances surrounding
petitioner’s late filing warrant equitable tolling before we review that
question.
An appropriate order will be issued.
Reviewed by the Court.
KERRIGAN, GALE, PARIS, MORRISON, NEGA, PUGH,
ASHFORD, URDA, COPELAND, TORO, GREAVES, MARSHALL, and
WEILER, JJ., agree with this opinion of the Court.
FOLEY, BUCH, and JONES, JJ., agree with Parts I, II, and III.A
and B of this opinion, but dissent from Part III.C.
32
JONES, J., concurring in part and dissenting in part: I concur
with the opinion of the Court that Appeals has authority under section
6320 to hold CDP hearings when the taxpayer files a request after the
30-day period set forth in section 6320(a)(3)(B), as well as the corollary
holding that equitable tolling of the 30-day period is not barred by the
statute. See op. Ct. pp. 30–31. I also concur that it is appropriate to
overrule Kennedy v. Commissioner, 116 T.C. 255 (2001), to the extent
set forth in the opinion of the Court. See op. Ct. p. 31. But I part ways
with the majority opinion where it holds that Treasury Regulation
§ 301.6320-1 does not preclude application of the doctrine of equitable
tolling to the 30-day period. See op. Ct. pp. 26–30.
Our construction of section 6320 finds the statute silent or
ambiguous with respect to equitable tolling. 1 In such situations, the
question for the Court is whether the agency’s answer is based on a
permissible construction of the statute. Chevron, U.S.A., Inc. v. Nat. Res.
Def. Council, Inc., 467 U.S. 837, 843 (1984); see Cuozzo Speed Techs.,
LLC v. Lee, 579 U.S. 261, 277 (2016) (finding that a statute was
ambiguous under step one of the Chevron doctrine, and analyzing the
agency’s interpretation under step two); King v. Burwell, 576 U.S. 473,
492 (2015) (same); Wide Voice, LLC v. FCC, 61 F.4th 1018, 1025–26 (9th
Cir. 2023) (same); Diaz-Rodriguez v. Garland, 55 F.4th 697, 727 (9th
Cir. 2022) (same); 3M Co. & Subs. v. Commissioner, No. 5816-13, 160
T.C., slip op. at 253–54 (Feb. 9, 2023) (same); Oakbrook Land Holdings,
LLC v. Commissioner, 154 T.C. 180, 195–96 (2020) (same), aff’d, 28
F. 4th 700 (6th Cir. 2022). Rather than undertake this analysis, the
Court errs in holding that “the regulations’ provision of equivalent
hearings does not preclude the application of the broader doctrine of
equitable tolling.” See op. Ct. p. 28. This holding is based on the incorrect
assertion that “[t]he regulation[] [is] silent as to equitable tolling.” See
op. Ct. p. 27.
Therefore, I respectfully dissent with respect to this holding and
write separately to explain how the text of the regulation—and the
context in which it was promulgated and amended—speaks clearly to
close the door to equitable tolling. Because the regulation closes the door
1 “There is no clear statement in the text of section 6320 that requires a
taxpayer to comply with the 30-day deadline for Appeals to have authority to review a
proposed collection action, and thus, we hold that the 30-day period is not an
administrative bar.” See op. Ct. p. 16.
33
that the Court’s statutory construction leaves open, 2 I would direct the
parties to brief the validity of Treasury Regulation § 301.6320-1 under
Chevron (step two). I would likewise direct them to brief the severability
of regulatory provisions that are permissible constructions from those
that are not. See, e.g., K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 294
(1988).
I. Regulatory Text
The regulation under section 6320 speaks consistently and clearly
to establish Treasury’s position that a request for a CDP hearing must
be filed within the 30-day deadline; any request not made “timely,” i.e.,
within the 30-day deadline, can be treated as a request for an equivalent
hearing. 3 See Treas. Reg. § 301.6320-1(c)(1), (i)(1). As discussed infra,
the regulation even goes so far as to emphatically reject equitable tolling
of the 30-day deadline for taxpayers residing outside of the United
States and clearly states that all taxpayers who want a CDP hearing
must request a hearing within the 30-day period. See id. para. (2),
Q&A-C5.
“Regulations are interpreted according to the same rules as
statutes, applying traditional rules of construction.” Minnick v.
Commissioner, 796 F.3d 1156, 1159 (9th Cir. 2015) (citing Christopher
v. SmithKline Beecham Corp., 635 F.3d 383, 392 (9th Cir. 2011), aff’d,
567 U.S. 142 (2012)), aff’g T.C. Memo. 2012-345. We therefore “begin our
interpretation of [a] regulation with its text.” Green v. Brennan, 578 U.S.
547, 553 (2016). When interpreting the meaning of a regulation, the
Supreme Court has given us a precise method to use. Our first and
sometimes final step is to “‘carefully consider[]’ the text, structure,
history, and purpose of a regulation, in all the ways [a court] would if it
had no agency to fall back on.” Kisor v. Wilkie, 139 S. Ct. 2400, 2415
2 For example, Treasury Regulation § 301.6320-1(b)(1) conditions a taxpayer’s
entitlement to a CDP hearing on the filing of a request within the 30-day period. This
conflicts with our conclusion that “[t]here is no clear statement in the text of section
6320 that requires a taxpayer to comply with the 30-day deadline for Appeals to have
authority to review a proposed collection action.” See op. Ct. p. 16. It is also
irreconcilable with our holding that “the 30-day period is not an administrative bar.”
See op. Ct. p. 16.
3 See United States v. Gilliam, 737 F. App’x 660, 666–67 (4th Cir. 2018)
(“Section 6330, as incorporated by [section] 6320, is silent as to whether a hearing
request must be timely. The regulations raise the issue of timeliness and use
timeliness to distinguish between CDP and equivalent hearings without reference to
when a timeliness determination must be made.” (citation omitted)).
34
(2019) (first alteration in original) (quoting Pauley v. BethEnergy Mines,
Inc., 501 U.S. 680, 707 (1991) (Scalia, J., dissenting)).
To begin, Treasury Regulation § 301.6320-1(a)(2), Q&A-A10 asks:
“What must a CDP Notice given under section 6320 include?” The
answer provides a list of required items, which includes, “[a] statement
concerning the taxpayer’s right to request a CDP hearing during the
30-day period that commences the day after the end of the five business
day period within which the IRS is required to provide the taxpayer with
notice of the filing of the NFTL.” Id. (emphasis added).
In the same subparagraph, the regulation queries: “What are the
consequences if the taxpayer does not receive or accept a CDP Notice
that is properly left at the taxpayer’s dwelling or usual place of business,
or sent by certified or registered mail to the taxpayer’s last known
address?” Id. Q&A-A11. The answer is that a properly sent CDP Notice
“is sufficient to start the 30-day period, commencing the day after the
end of the five business day notification period, within which the
taxpayer may request a CDP hearing.” Id.
Further, the portion of the regulation that controls a taxpayer’s
right to a CDP hearing provides the following:
Entitlement to a CDP hearing—(1) In general. A taxpayer
is entitled to one CDP hearing with respect to the first
filing of a NFTL (on or after January 19, 1999) for a given
tax period or periods with respect to the unpaid tax shown
on the NFTL if the taxpayer timely requests such a hearing.
The taxpayer must request such a hearing during the
30-day period that commences the day after the end of the
five business day period within which the IRS is required
to provide the taxpayer with notice of the filing of the NFTL.
Id. para. (b)(1) (emphasis added).
We cannot breeze by this provision’s use of the words
“entitlement,” “timely,” and “must,” as it sets out a taxpayer’s right to a
CDP hearing and insists that the right depends upon the filing of the
request within the 30-day period. “Entitlement” is defined as “[a]n
absolute right to a (usu. Monetary) benefit, such as social security,
granted immediately upon meeting a legal requirement.” Entitlement,
35
Black’s Law Dictionary (7th ed. 1999). 4 “Timely,” which is used as an
adverb in Treasury Regulation § 301.6320-1(b)(1), 5 means “[i]n time;
opportunely.” Timely, The American Heritage Dictionary of the English
Language (4th ed. 2000). “Must” is defined as “[t]o be obliged or required
by morality, law, or custom.” Id., Must. 6
In other words, the regulation plainly states that a taxpayer is
required to file a request for a CDP hearing within the 30-day period to
exercise her right to such a hearing. The implication—which is also
made clear in the regulations—is that there is no equitable tolling with
respect to the strict and inflexible 30-day deadline.
Consistent with this position, the regulation’s guidance on
requesting a hearing provides:
Requesting a CDP hearing—(1) In general. When a
taxpayer is entitled to a CDP hearing under section 6320,
the CDP hearing must be requested during the 30-day
period that commences the day after the end of the five
business day period within which the IRS is required to
provide the taxpayer with a CDP Notice with respect to the
filing of the NFTL.
Treas. Reg. § 301.6320-1(c)(1).
Treasury Regulation § 301.6320-1(c)(2) continues to focus on the
importance of timely filing a request. At Q-C3, the paragraph poses the
question: “When must a taxpayer request a CDP hearing with respect
to a CDP Notice issued under section 6320?” At A-C3, the answer is:
4 See also Entitlement, The American Heritage Dictionary of the English
Language (4th ed. 2000) (“The state of being entitled.”); Entitlement, Webster’s New
Universal Unabridged Dictionary (2003) (same); Entitled, The American Heritage
Dictionary of the English Language (4th ed. 2000) (“To furnish with a right or claim to
something.”); Entitled, Webster’s New Universal Unabridged Dictionary (2003) (“[T]o
give (a person or thing) a title, right, or claim to something; furnish with grounds for
laying claim.”).
5 See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 140 (2012) (“Words are to be given the meaning that proper grammar and
usage would assign them.”).
6 See also Must, Webster’s New Universal Unabridged Dictionary (2003)
(defining the term “Must,” when used as an auxiliary verb, as “to be obliged or bound
to by an imperative requirement”).
36
A taxpayer must submit a written request for a CDP
hearing within the 30-day period that commences the day
after the end of the five business day period following the
filing of the NFTL. Any request filed during the five
business day period (before the beginning of the 30-day
period) will be deemed to be filed on the first day of the
30-day period. The period for submitting a written request
for a CDP hearing with respect to a CDP Notice issued
under section 6320 is slightly different from the period for
submitting a written request for a CDP hearing with
respect to a CDP Notice issued under section 6330. For a
CDP Notice issued under section 6330, the taxpayer must
submit a written request for a CDP hearing within the
30-day period commencing the day after the date of the
CDP Notice.
At Q&A-C4, subparagraph (c)(2) provides that the rules and
regulations under sections 7502 and 7503 will be used to determine the
timeliness of a taxpayer’s request for a CDP hearing.
Furthermore, the regulations soundly reject equitable tolling at
subparagraph (c)(2), Q&A-C5. That provision asks: “Is the 30-day period
within which a taxpayer must make a request for a CDP hearing
extended because the taxpayer resides outside the United States?” At
A-C5, the answer is:
No. Section 6320 does not make provision for such a
circumstance. Accordingly, all taxpayers who want a CDP
hearing under section 6320 must request such a hearing
within the 30-day period that commences the day after the
end of the five business day notification period.
(Emphasis added.)
Treasury Regulation § 301.6320-1(c) is not shy about the
consequence of failing to submit a request for a CDP hearing within the
30-day period: A taxpayer who fails to make a timely request for a CDP
hearing is not entitled to a CDP determination. The regulation makes
no distinction between taxpayers residing inside or outside of the United
States; there is one 30-day period that applies to all taxpayers that
cannot be extended, for example, on the basis of place of residence.
Treas. Reg. § 301.6320-1(c)(2), Q&A-C5.
37
Further, at Q&A-C7, the question presented is: “What will
happen if the taxpayer does not request a CDP hearing in writing within
the 30-day period that commences the day after the end of the five
business day notification period?” The answer is that the taxpayer has
forfeited her right to a CDP hearing:
If the taxpayer does not request a CDP hearing in writing
within the 30-day period that commences on the day after
the end of the five-business-day notification period, the
taxpayer foregoes the right to a CDP hearing under section
6320 with respect to the unpaid tax and tax periods shown
on the CDP Notice. A written request submitted within the
30-day period that does not satisfy the requirements set
forth in A-C1(ii)(A), (B), (C), (D) or (F) of this paragraph
(c)(2) is considered timely if the request is perfected within
a reasonable period of time pursuant to A-C1(iii) of this
paragraph (c)(2). If the request for CDP hearing is untimely,
either because the request was not submitted within the
30-day period or not perfected within the reasonable period
provided, the taxpayer will be notified of the untimeliness of
the request and offered an equivalent hearing. In such
cases, the taxpayer may obtain an equivalent hearing
without submitting an additional request. See paragraph
(i) of this section.
Id. (emphasis added).
To summarize, the text of Treasury Regulation § 301.6230-1
(1) establishes clearly and consistently that a taxpayer’s right to a CDP
hearing is conditioned on the filing of a request within the 30-day period;
(2) provides that the rules and regulations under sections 7502 and 7503
will be used for determining the timeliness of a taxpayer’s request;
(3) rejects the notion that the 30-day deadline can be extended for
taxpayers residing outside of the United States and requires that all
taxpayers who want a CDP hearing must request a hearing within the
30-day period; (4) provides that failure to file a request within the 30-day
period means that the taxpayer “foregoes the right to a CDP hearing”;
and (5) provides that a taxpayer who fails to file a timely request will be
offered an equivalent hearing. 7
7 The regulation holds the line on the 30-day period with respect to substitute
CDP Notices too. Treas. Reg. § 301.6320-1(c)(2), Q&A-C8.
38
Yet the majority opinion states that the regulations “allow for
equitable considerations with respect to the 30-day deadline and do not
interpret the deadline as strict or inflexible.” See op. Ct. p. 27. 8 I believe
this conclusion is at odds with the text of the regulation.
As a consequence, the majority’s reliance on Craig v.
Commissioner, 119 T.C. 252 (2002), is misplaced. The Court’s opinion
states that “[t]he regulations establish the procedures for equivalent
hearings, and nothing in those procedures categorically precludes
equitable tolling.” See op. Ct. p. 27. As previously discussed, I disagree.
The opinion continues, recognizing that Treasury Regulation
§ 301.6320-1(i)(2), Q&A-I6, provides that “[s]ection 6320 does not
authorize a taxpayer to appeal the decision of Appeals with respect to
an equivalent hearing” but concludes that “under Craig, if the 30-day
period is tolled, we would review Appeals’ conclusion from an equivalent
hearing as a determination.” See op. Ct. p. 27.
The opinion of the Court rests on the unspoken assumption that
a CDP request is “timely” when equitable tolling is applicable, but as
previously discussed, the regulation is at odds with our interpretation of
the statute. Under the regulation, a CDP request is timely only if it is
received within the 30-day period, and the regulation repeatedly
provides this rule in absolute, strict, and inflexible terms. Treas. Reg.
§ 301.6320-1(b)(1) (“The taxpayer must request [a CDP] hearing during
the 30-day period . . . .”); see also id. para. (c)(1), (2), Q&A-C3 and
Q&A-C4. The regulation provides in no uncertain terms that all
taxpayers who want a CDP hearing must request one within the 30-day
period. See Treas. Reg. § 301.6320-1(c)(2), Q&A-C5, Q&A-C7.
In Craig, a taxpayer made a timely request for a CDP hearing,
but instead of holding a CDP hearing and issuing a notice of
determination, the IRS erroneously held an equivalent hearing and
issued a decision letter based on the mistaken belief that the taxpayer’s
CDP request was untimely. Craig, 119 T.C. at 258–59. This Court
stated:
Although the Appeals officer concludes an equivalent
hearing by issuing a decision letter, as opposed to a notice
8 To the extent the regulations “allow for equitable considerations with respect
to the 30-day deadline,” see op. Ct. p. 27, such leniency is with respect to perfecting and
clarifying hearing requests that are filed within the 30-day period, Treas. Reg.
§ 301.6320-1(c)(2), Q&A-C1(iii). If a request is not so filed, the taxpayer gets an
equivalent hearing.
39
of determination, the different names which are assigned
to these documents are merely a distinction without a
difference when it comes to our jurisdiction over this case,
where a Hearing was timely requested.
Id. at 258 (emphasis added). The Court continued, stating that “[u]nder
the facts herein, where Appeals issued the decision letter to [the
taxpayer] in response to his timely request for a Hearing, we conclude
that the ‘decision’ reflected in the [equivalent hearing] decision letter
issued to [the taxpayer] is a ‘determination’ for purposes of section
6330(d)(1).” Id. at 259 (emphasis added).
Under the Court’s holding in Craig, the Court has jurisdiction to
review the equivalent hearing decision letter only when it is, in
substance, a section 6330(d)(1) “determination.” In Craig, the equivalent
hearing decision letter was in substance a section 6330(d)(1)
“determination” because the taxpayer timely requested a CDP hearing,
and thus was entitled to a determination. Craig, 119 T.C. at 259; see
Treas. Reg. § 301.6320-1(f)(1). And as previously discussed, see supra
p. 33, the regulation clearly provides that a timely request for a CDP
hearing is one made within the 30-day period.
Properly applied, Craig does not permit the Court to review a
decision letter from an equivalent hearing unless the hearing request
was timely filed within the 30-day period prescribed by the regulation.
Craig, 119 T.C. at 258–59. Viewing equivalent hearings as an equitable
exception to the 30-day period, as the opinion of the Court does, see op.
Ct. p. 27, is only possible if the request for the CDP hearing was not filed
within the 30-day period. In such a case Craig would be inapplicable.
The regulation clearly provides that Appeals can issue a determination
that is reviewable by this Court only if the taxpayer requested a CDP
hearing within the 30-day period. See Treas. Reg. § 301.6320-1(b)(1),
(f)(1). Craig does not depart from this rule. 119 T.C. at 258–59.
The regulations proceed from the assumption that the 30-day
deadline in section 6320 is fixed, i.e., not subject to equitable tolling. See
op. Ct. p. 16 (“Respondent argues [that the 30-day deadline] is not
[amenable to equitable tolling]; he argues that it is a fixed deadline and
equitable tolling is categorically precluded.”); see also op. Ct. pp. 13 n.8,
14 n.9. That premise is borne out in the text and in the dichotomy of
process the regulations establish for hearing requests filed within the
30-day period (CDP hearing) as opposed to those not filed within that
period (equivalent hearing). Compare Treas. Reg. § 301.6320-1(f)(1)
40
(“Appeals is required to issue a Notice of Determination in all cases
where a taxpayer has timely requested a CDP hearing. The taxpayer
may appeal such determinations made by Appeals within the 30-day
period commencing the day after the date of the Notice of Determination
to the Tax Court”), with id. para. (i)(1) (“A taxpayer who fails to make a
timely request for a CDP hearing is not entitled to a CDP hearing. Such
a taxpayer may nevertheless request an administrative hearing with
Appeals, which is referred to . . . as an ‘equivalent hearing.’ . . . Appeals
will not, however, issue a Notice of Determination.”), and Treas. Reg.
§ 301.6320-1(i)(2), Q&A-I6 (“Section 6320 does not authorize a taxpayer
to appeal the decision of Appeals with respect to an equivalent
hearing.”). Of course, as the opinion of the Court points out, the
regulations provide that the consequence of a timely requested hearing
is a “determination,” which this Court reviews while the consequence of
an equivalent hearing is a “decision,” which we do not review. See op. Ct.
pp. 10–11; see also Treas. Reg. § 301.6320-1(f)(1).
II. Context of Promulgation and Amendment
A careful consideration of the history of Treasury Regulation
§ 301.6320-1, see Kisor, 139 S. Ct. at 2415, demonstrates that it is built
on the understanding that the 30-day deadline in section 6320 is fixed. 9
As explained below, such a reading is consistent with the context in
which Treasury Regulation § 301.6320-1 was promulgated.
A. The temporary and final regulations published in 1999 and
2002, respectively, explained Treasury’s view of the 30-day
deadline.
On January 22, 1999, temporary regulations implementing
changes made by section 3401 of the IRS Restructuring and Reform Act
of 1998 (RRA), Pub L. No. 105-206, 112 Stat. 685, 746, were published.
T.D. 8810, 1999-1 C.B. 470. A notice of proposed rulemaking cross-
referencing the temporary regulations was published on the same day
in the Federal Register. Prop. Treas. Reg. § 301.6320-1, 64 Fed. Reg.
3461 (Jan. 22, 1999).
9 It makes sense that the agency that promulgated regulations that reject
equitable tolling would litigate to that end, as respondent has done. On brief,
respondent propounds his view that the 30-day deadline in section 6320 is fixed. See
supra p. 39.
41
The relevant portions of the preamble to Treasury Decision 8810
provide the following background:
The legislative history accompanying RRA also explains
that Congress intended the IRS to grant an equivalent
hearing to taxpayers who do not request a hearing under
section 6320 within the 30-day period that commences the
day after the five business day notification period. H. Conf.
Rep. No. 599, 105th Cong., 2d Sess. 266 (1998).
T.D. 8810, 1999-1 C.B. at 470 (emphasis added). The preamble
continues, stating the following in the “[e]xplanation of [p]rovision”
section:
The notification must state the amount of unpaid tax,
inform the taxpayer of the right to request a hearing during
the 30-day period that commences the day after the end of
the five business day notification period, inform the
taxpayer of the administrative appeals available with
respect to such lien and the procedures related to such
appeals, and inform the taxpayer of the provisions and
procedures relating to the release of liens. Unless the
taxpayer withdraws the request that Appeals conduct a
hearing when the taxpayer has made a timely request for a
hearing, Appeals will hold one collection due process
hearing (CDP hearing) with respect to the tax and tax
period or periods specified in the CDP hearing notice (CDP
Notice). . . . If a taxpayer timely requests a CDP hearing,
the periods of limitation relating to collection after
assessment, relating to criminal prosecutions, and relating
to suits are suspended.
....
Lastly, the temporary regulations provide rules and
procedures with respect to the administrative hearing
(referred to as an “equivalent hearing”) the IRS will
provide to taxpayers who do not timely request a hearing
under section 6320.
Id. at 470–71 (emphasis added).
On January 18, 2002, the final regulations were published in the
Federal Register. T.D. 8979, 2002-1 C.B. 466. The preamble notes that
42
no comments on the temporary regulations were received during the
comment period and only two comments were received after the period. 10
Id. at 467. It is noteworthy that neither comment challenged or even
mentioned that the temporary regulations required a CDP hearing to be
requested within the 30-day period; or that the temporary regulations
deemed a taxpayer to have forgone his right to a CDP hearing if the
request was not timely; or that the temporary regulations provided
taxpayers with an “equivalent hearing,” not subject to judicial review, if
a request was not timely. Accordingly, these provisions were adopted in
the final regulations without further explanation.
B. Treasury maintained its position regarding the 30-day
deadline when it amended the regulations in 2006.
On September 16, 2005, Treasury published a notice of proposed
rulemaking that proposed to amend Treasury Regulation § 301.6320-1.
See 70 Fed. Reg. 54,681 (Sept. 16, 2005). The preamble explained that
the proposed amendments were designed to improve efficiency in the
CDP process following six years of IRS experience. Id. at 54,682–83. In
relevant part, the proposed amendment maintained Treasury’s position
that a taxpayer’s failure to request a CDP hearing during the 30-day
period caused that taxpayer to forfeit such a hearing. The amendment
also set forth Treasury’s position that the IRS could, but is not required
to, treat an untimely request as a request for an equivalent hearing. The
preamble provides the following in the “[e]xplanation of [p]rovisions”
section:
The IRS receives a number of tardy requests for CDP
hearings. The changes to § 301.6320-1(i)(2) explain how
these requests will be treated. The proposed amendments
to the regulations add a new Q&A-I1 to § 301.6320-1(i)(2)
to explain that a taxpayer must request an equivalent
hearing in writing. A taxpayer may obtain an equivalent
hearing if the 30-day period described in section 6320(a)(3)
for requesting a CDP hearing has expired. Unlike an
Appeals determination in a CDP hearing, the Appeals
decision in an equivalent hearing is not reviewable in court.
Under new Q&A-I1, the IRS is not required to treat a
late-filed CDP request as a request for an equivalent
10 The two comments were generally directed at the temporary regulations
under section 6330 that were issued contemporaneously with those under section 6320.
See T.D. 8809, 1991-1 C.B. 476.
43
hearing. Section 301.6320-1(c)(2), A-C7 has been amended
to require that the taxpayer be notified of the right to an
equivalent hearing in all cases in which a tardy request for
a CDP hearing is received. It is expected that the IRS will
either send the taxpayer a letter or orally inform the
taxpayer that the CDP hearing request is untimely and ask
if the taxpayer wishes to have an equivalent hearing.
Id. at 54,683 (emphasis added).
On October 17, 2006, final regulations were published in the
Federal Register. T.D. 9290, 71 Fed. Reg. 60,835 (Oct. 17, 2006). They
adopted the above-referenced provision that was proposed in the
temporary regulations. The preamble to the final regulations discusses
multiple comments that Treasury received in response to the temporary
regulations. Id. at 60,835–39. None of the comments queried or
challenged Treasury’s position that a failure to file a hearing request in
the 30-day period caused the taxpayer to forfeit her right to such
hearing. Rather, commenters requested that Treasury provide by
regulation a specific period within which the IRS would allow a timely
filed request to be perfected. Id. at 60,836.
C. Supreme Court and Tax Court jurisprudence at the time of
promulgation were consistent with Treasury’s view.
Treasury’s position in the promulgation and amendment of
Treasury Regulation § 301.6320-1 (1999–2006) is consistent with the
Supreme Court’s jurisprudence regarding jurisdiction at that time. Last
year, the Supreme Court acknowledged that its efforts to “bring some
discipline” to the use of the term “jurisdictional” have been relatively
recent. Boechler, P.C. v. Commissioner, 142 S. Ct. 1493, 1500–01 (2022)
(quoting Henderson v. Shinseki, 562 U.S. 428, 435 (2011)); see also Reed
Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161 (2010) (discussing the
Supreme Court’s then-recent effort to curtail “drive-by jurisdictional
rulings”). 11
11 A brief for amicus curiae was filed by T. Keith Fogg and Audrey Patten,
counsel for The Center for Taxpayer Rights, in support of petitioner. Therein, amicus
observed that as early as 2004, the Supreme Court acknowledged that the Court itself
had “been too careless” in its use of the term “jurisdictional.” See Brief of The Center
for Taxpayer Rights at 4, Organic Cannabis Found., LLC v. Commissioner, No. 381-
22L (T.C. Jan. 1, 2023) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)).
44
Moreover, Treasury’s regulatory position was consistent with the
Tax Court’s jurisprudence at that time. The opinion of the Court
correctly states that “[i]n Kennedy v. Commissioner, 116 T.C. 255, 262
(2001), we held that Appeals is not authorized to waive the 30-day period
for requesting a CDP hearing and that Appeals is not required to provide
a CDP hearing requested after the 30-day period.” See op. Ct. p. 3.
Accordingly, Treasury’s position that the 30-day deadline was fixed, and
its articulation of that position in the promulgation of the original and
amended regulations, was consistent with caselaw at that time.
III. Conclusion
The text of Treasury Regulation § 301.6320-1 consistently and
clearly treats the 30-day deadline as a fixed deadline (including an
unmistakable rejection of equitably tolling the deadline for taxpayers
residing outside of the United States), and the context of its
promulgation and amendment is consistent with that view. Therefore, I
respectfully dissent from that portion of the opinion of the Court that
holds that the regulations do not preclude application of the doctrine of
equitable tolling to the 30-day period.
FOLEY and BUCH, JJ., agree with this opinion concurring in
part and dissenting in part.