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Keith Fogg, Excuses, Excuses: Which Ones Will Work, 24 J. Tax Prac. & Proc. 37 (2022).

Abstract: In Brockamp, the Supreme Court faced the issue of whether the three-year time limit for filing an administrative tax refund claim in Code Sec. 6511 was subject to equitable tolling.8 Without discussing whether the time period was jurisdictional (and apparently assuming that it was not), the Court held that, even if the Irwin presumption applied to this time period, a combination of factors would rebut any presumption that equitable tolling could apply: (1) the time limits were set forth in an "unusually emphatic form"; (2) the statute set forth the limitations in a "highly detailed technical manner," by reiterating the limitations period in multiple subsections; (3) the statute specified numerous exceptions to the filing deadline, which did not include equitable tolling9; (4) the granting of equitable tolling would require tolling substantive limitations on the amount of recovery, for which there was no direct precedent (see Code Sec. 6511 (b) lookback amount limitations); and (5) granting equitable tolling could create serious administrative problems by forcing the Internal Revenue Service (IRS) to respond to large numbers of late claims.10 In Holland, the Supreme Court revisited Brockamp when addressing whether the one-year statute of limitations for asking a federal district court to engage in habeas review of a state death penalty conviction was subject to equitable tolling.11 In distinguishing the habeas statute from the one in Brockamp, the Court found that the presumption in favor of equitable tolling was not rebutted because (1) the language of the limitations provision was not unusually emphatic, (2) the statute did not "reiterate" its time limitation, (3) the one exception the statute enunciated (tolling during state collateral review proceedings) was a necessary procedural measure to account for exhaustion of state remedies, (4) the application of equitable tolling would not affect the substance of a habeas petitioner's claim, and (5) the subject matter at issue, habeas corpus, pertains to an area in which equitable considerations often factor (which "reinforced" the presumption in favor of tolling), unlike the area of refund claim administration.12 Refunds claims present a special problem for the IRS because most tax returns qualify as refund claims making the number of claims huge, over 90 million according to Brockamp, and the consequent administrative problems if equitable tolling applied significant. [...]in Rubel, the IRS gave a taxpayer an incorrect deadline for filing a Tax Court petition in written correspondence.19 Likewise, in Matuszak, an IRS employee orally gave an unrepresented taxpayer the wrong last date to file a petition.20 In Nauflett, an employee of the IRS's Taxpayer Advocate Service orally gave another unrepresented taxpayer an incorrect final filing date.21 Although these cases arose in the innocent spouse context, rather than under Code Sec. 6330, they illustrate the contexts in which a failure to allow for equitable tolling can be outcome-determinative for litigants. In each of these cases, the tax clinic at Harvard Law School filed an appeal from the dismissal for lack of jurisdiction of the case by the Tax Court and in each case the circuit court upheld the dismissal and did not get to the issue of equitable tolling because of the ruling on jurisdiction. In one of the Code Sec. 6330(d)(1) cases described above in which the tax clinic at Harvard represented the petitioner on appeal, the Fourth Circuit found that the IRS language was not confusing enough to justify equitable tolling.25 The Ninth Circuit declined to even consider the taxpayer's equitable-tolling arguments, reasoning that Code Sec. 6330(d)(l)'s deadline was jurisdictional.26 B. Extraordinary Circumstances Sometimes Prevent Taxpayers from Meeting Tax Court Filing Deadlines In other cases, taxpayers experience extraordinary circumstances that prevent them from timely filing petitions with the Tax Court.