Denise Mannella v. Commissioner IRS

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 10-1308

DENISE MANNELLA

v.

COMMISSIONER OF INTERNAL REVENUE,
Appellant

On Appeal from the United States Tax Court
(Tax Court No. 17531-07)
Tax Court Judges: Hon. Harry Haines
and Hon. Michael B. Thornton

Argued November 17, 2010

BEFORE: AMBRO, FISHER and
GREENBERG, Circuit Judges

(Filed: January 19, 2011)
Derek P. Dissinger (argued)
Russell, Krafft & Gruber
930 Red Rose Court
Hempfield Center, Suite 300
Lancaster, PA 17601-0000

Alice L Stewart
Duquesne University School of Law
Low Income Tax Practicum
Room 125
600 Forbes Avenue
Pittsburgh, PA 15282-0000

Raymond C. Vogliano
Eckert, Seamans, Cherin & Mellott
600 Grant Street
44th Floor, U.S. Steel Tower
Pittsburgh, PA 15219-0000

Attorneys for Appellee

John A. DiCicco
Acting Assistant Attorney General
Teresa E. McLaughlin (argued)
Steven W. Parks
Attorneys Tax Division
United States Department of Justice
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, DC 20044-0000

2
William J. Wilkins
Internal Revenue Service
1111 Constitution Avenue, N.W.
Washington, DC 20224-0000

Attorneys for Appellant

Carlton M. Smith
Director, Benjamin N. Cardozo School of Law Tax Clinic
55 Fifth Avenue
New York, NY 10003

Attorney Pro Se as Amicus Curiae

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before the Court on the
Commissioner of Internal Revenue=s appeal from a decision of
the United States Tax Court entered on November 5, 2009, in
accordance with a Tax Court opinion dated April 13, 2009, and
a stipulation of the parties dated October 28, 2009, that
together provided that Appellee Denise Mannella did not owe
any income taxes, interest, or penalties for the taxable years
1996 through 2000. In its opinion leading to its decision, the
Tax Court invalidated a Treasury Department regulation, 26

3
C.F.R. ' 1.6015-5(b)(1), that sets a two-year deadline to file a
claim for equitable Ainnocent spouse@ relief under 26 U.S.C. '
6015(f) from liability resulting from a jointly filed federal
income tax return. We now hold that the regulation is neither
contrary to nor an impermissible implementation of section
6015, and, therefore, inasmuch as Denise filed her claim for
innocent spouse relief beyond the regulation=s two-year
deadline for seeking such relief, we will reverse the decision of
the Tax Court. See Chevron U.S.A., Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984). We,
however, will remand the case to that Court to consider an
equitable tolling contention that Denise advances on this
appeal with respect to the running of the two-year period.1

II. BACKGROUND

A. Statutory and Regulatory Framework

Before addressing the facts of this case, we first quote
the Court of Appeals for the Seventh Circuit=s thorough
explanation of the relevant portions of the Internal Revenue
Code and the related Treasury Department regulation at issue:

1
There is no issue raised on this appeal concerning the
calculation of the taxes, interest, or penalties.

4
 Taxpayers filing a joint return are jointly and
severally liable for the entire tax liability shown
or that should have been shown on their return.
26 U.S.C. ' 6013(d)(3). But section 6015 of the
Internal Revenue Code sets forth
grounds->innocent spouse= rules first added to the
Code in 1971 and liberalized since . . . -for
relieving the signer of a joint return of his or her
joint and several liability for understatement or
nonpayment of income tax due.

Section 6015(f), captioned >equitable relief,=
provides that >under procedures prescribed by
the [Secretary of Treasury], if (1) taking into
account all the facts and circumstances, it is
inequitable to hold the individual liable for any
unpaid tax or any deficiency . . . ; and (2) relief is
not available to such individual under subsection
(b) or (c) [of section 6015], the [Secretary] may
relieve such individual of such liability.= By
regulation the Treasury has fixed a deadline for
filing claims under subsection (f) of two years
from the IRS=s first action to collect the tax by
(for example) issuing a notice of intent to levy on
the taxpayer=s property. 26 C.F.R. '
1.6015-5(b)(1); see also IRS Rev. Proc.2003-61
' 4.01(3); 26 U.S.C. ' 6630(a).

Lantz v. Commissioner, 607 F.3d 479, 480 (7th Cir. 2010)
(internal citations omitted) (alterations in original). As the
foregoing passage indicates, the two-year deadline for seeking
relief under section 6015(f) does not arise from section 6015

5
but rather comes from the Treasury regulation implementing
subsection 6015(f).

Subsections (b) and (c) of section 6015 also provide
avenues of relief for innocent spouses, but, in contrast to
subsection (f), both contain two-year filing deadlines for
seeking such relief. Subsection (b) provides:

Under procedures prescribed by the Secretary [of
Treasury], ifB

(A) a joint return has been made
for a taxable year;

(B) on such return there is an
understatement of tax attributable
to erroneous items of one
individual filing the joint return;

(C) the other individual filing the
joint return establishes that in
signing the return he or she did not
know, and had no reason to know,
that there was such
understatement;

(D) taking into account all the
facts and circumstances, it is
inequitable to hold the other
individual liable for the deficiency
in tax for such taxable year

6
 attributable to such
understatement; and

(E) the other individual elects (in
such form as the Secretary may
prescribe) the benefits of this
subsection not later than the date
which is 2 years after the date the
Secretary has begun collection
activities with respect to the
individual making the election,

then the other individual shall be relieved of
liability for tax (including interest, penalties, and
other amounts) for such taxable year to the
extent such liability is attributable to such
understatement.

26 U.S.C. ' 6015(b)(1) (emphasis added). Subsection (c)
provides for an allocation of liability if the signer of a joint
return is divorced, legally separated, or no longer living in the
same household as the individual with whom the signer filed
the joint return. In a provision paralleling subsection
(b)(1)(E), subsection (c) provides that a taxpayer seeking relief
under (c) must elect such relief Anot later than 2 years after the
date on which the [Secretary] has begun collection activities
with respect to the individual making the election.@ 26 U.S.C.
' 6015(c)(3)(B).

B. Facts

7
 Denise2 and her husband Anthony Mannella filed joint
federal income tax returns for the years 1996 through 2000.
The Mannellas agreed to the assessment of a deficiency for the
year 1996. For the years 1997, 1998, 1999, and 2000, the
Mannellas did not pay fully the taxes their returns showed as
due. Consequently, the Commissioner on June 4, 2004,
initiated collection procedures to recover the back taxes that
they owed by sending the Mannellas separate notices of his
intent to levy. The notices indicated, however, that the
Mannellas each had the right to a collection-due-process
hearing before such levy.

The notices instructed the Mannellas how to obtain
innocent spouse relief under section 6015 by including an IRS
publication titled AWhat You Should Know About [t]he IRS
Collection Process,@ which contained the following provision:

2
Our use of Denise Mannella=s first name in this opinion does
not suggest a lack of respect but rather is intended to keep the
opinion clear with respect to the parties= identification.

8
 Help for an innocent spouse C In some cases,
you may not be responsible for taxes, interest,
and penalties on a joint income tax return.
Contact your local IRS office for more
information. For information about your rights
as an innocent spouse, see Publication 971,
Innocent Spouse Relief. For information on
three ways to get help with the amount you owe,
see Form 8857, Request for Innocent Spouse
Relief (And Separation of Liability and
Equitable Relief).

2 App. at 39, 42. The notices also included IRS Form 12153,
which states that A[i]f you believe that your spouse or former
spouse should be responsible for all or a portion of the tax
liability from your tax return, check here [__] and attach Form
8857, Request for Innocent Spouse Relief, to this request.@ 2
App. at 51.

The IRS sent the notices to the Mannellas= correct
address by certified mail return receipt requested. IRS
records indicate that it received signed return receipts dated
June 17, 2004, for both notices at an IRS Service Center.
Denise asserts, however, that her husband signed her name on
the return receipt and did not inform her that the notice had
arrived until more than two years after its arrival and the
Commissioner does not challenge this assertion. On
November 1, 2006, after learning of the notice of intent to levy
and speaking with an attorney, Denise filed two Form 8857
applications under section 6015, subsections (b), (c), and (f),
for innocent spouse relief from joint and several liability on the
Mannellas= joint returns filed for the years 1996-2000. The

9
Commissioner, however, issued Denise a notice of
determination dated May 3, 2007, denying her relief under
section 6015 because she had not filed her claim within two
years of June 4, 2004, the date that the Commissioner took his
first collection action against her by mailing her notice of the
intent to levy. Denise does not contend that the
Commissioner misapplied the statutory and regulatory
two-year deadline periods, as written, as she does not assert
that she filed her applications within the two-year statutory and
regulatory deadlines period allowed for such applications.

C. Procedural History

In response to the Commissioner=s rejection of her
applications, Denise, acting pro se, filed a petition for relief
with the Tax Court, contending in part:

My claim for relief was denied because it was
filed 4 2 months to[o] late. When the
collection process was started against me [on]
June 4, 2004[,] it was immediately stopped. I
was informed by my husband that everything
was handled and that I was not liable for his tax
obligation. The IRS stopped collection activity
against me so I thought it was taken care of. I
was not aware of any other problems and never
received any other papers from the IRS
concerning my liability for his taxes or anything
concerning my rights as an innocent spouse. I
never received any benefits from my husband

10
 not paying his taxes. . . . Denying my claim
because it was filed late when I was never
informed that a time limit existed is wrong.

2 App. at 4. Denise=s husband was informed of his right to
intervene in the Tax Court proceedings, but did not do so.

The Commissioner moved for summary judgment on
the sole basis that Denise=s applications for relief under section
6015 were untimely. She opposed the motion on the ground
that she never received her notice from her husband and
therefore the two-year period for seeking innocent spouse
relief should not have begun to run against her. Denise
represented to the Tax Court that she and her husband were
prepared to testify in support of her contentions at a trial. She
did not argue, however, that the regulation setting a two-year
deadline for requesting relief under subsection 6015(f) was
invalid.

In an opinion dated April 13, 2009, the Tax Court
granted the Commissioner=s motion for summary judgment in
part and denied it in part. The Court determined that the
mailing of the notice to Denise=s last known address triggered
the running of the two-year deadline periods under subsections
6015(b) and (c) regardless of whether she actually received the
June 4, 2004 notice. Accordingly, the Tax Court granted the
Commissioner=s motion for summary judgment on Denise=s
claims under those subsections. Nevertheless, the Court sua
sponte held that the two-year regulatory deadline under
subsection 6015(f) was invalid, a conclusion that it based on its
prior decision in Lantz v. Commissioner, 132 T.C. 131

11
(2009). 3 Consequently, the Court concluded that Denise=s
subsection (f) claim was timely and it denied the
Commissioner summary judgment on that claim.

After the Tax Court filed its opinion, the parties
executed a stipulation that if Denise=s subsection (f) request
had been timely, which it was if the regulation was invalid,
Denise Ais entitled to relief from all joint and several liabilities
in income tax, additions to tax, penalties and assessed interest@
for all the taxable years within the scope of this action. See 2
App. at 74. Following the filing of the stipulation, the Tax
Court entered a decision on November 5, 2009, in Denise=s
favor, but reserving the Commissioner=s right to appeal, which
he has done.

III. JURISDICTION AND STANDARD OF REVIEW

The Tax Court had jurisdiction pursuant to 26 U.S.C. ''
6015(e)(1)(A)(ii) and 7442, and we have jurisdiction to review
that Court=s decision granting summary judgment pursuant to
26 U.S.C. ' 7482(a)(1). Our review of the Tax Court=s
decision is plenary. Connecticut Gen. Life Ins. Co. v.

3
As we discuss below, after the Tax Court filed its opinion and
decision in this case, the Court of Appeals for the Seventh
Circuit reversed the Tax Court decision in Lantz in an opinion
filed June 8, 2010. See 607 F.3d 479. In this opinion we
refer to the Tax Court opinion in that litigation as Lantz v.
Commissioner and the Court of Appeals opinion as Lantz.

12
Comm=r, 177 F.3d 136, 143 (3d Cir. 1999); ACM P=ship v.
Comm=r, 157 F.3d 231, 245 (3d Cir. 1998).

IV. DISCUSSION

The primary issue on this appeal is whether the
Secretary validly exercised his rulemaking authority in
adopting the regulation setting a two-year deadline for
requesting relief under subsection 6015(f). In considering
this issue we apply the principles the Supreme Court set forth
in Chevron that we recently explained as follows:

[U]nder Chevron, we must first determine >if the
statute is silent or ambiguous with respect to the
specific issue of law in the case, using traditional
tools of statutory construction to determine
whether Congress had an intention on the precise
question at issue.= If congressional intent is
clear, >the inquiry ends, as both the agency and
the court must give effect to the plain language
of the statute.= Where, however, a >statute is
silent or ambiguous with respect to the specific
issue, the court proceeds to step two, where it
inquires whether the agency=s answer is based on
a permissible construction of the statute.=

Lin-Zheng v. Attorney Gen., 557 F.3d 147, 155 (3d Cir. 2009)
(en banc) (internal citations omitted). The Tax Court in this
case, following its opinion in Lantz v. Commissioner in which
it had applied Chevron, held that the regulation conflicts with

13
the clear language of subsection 6015(f) and that, even if the
language of the statute is ambiguous, the regulation
impermissibly implements that subsection. Denise, with
effective assistance from amicus curiae, supplements the Tax
Court opinion by arguing that even if we uphold the regulation
under Chevron, the two-year filing deadline is subject to the
doctrine of equitable tolling and that there should be equitable
tolling in her case to the end that her applications were timely.
We consider each issue in turn.

A. Lantz

As we have indicated, in invalidating the regulation the
Tax Court followed its prior decision in Lantz v.
Commissioner in which it stated:

[b]y explicitly creating a 2-year limitation in
subsections (b) and (c) but not subsection (f) [of
section 6015], Congress has >spoken= by its
audible silence. Because the regulation
imposes a limitation that Congress explicitly
incorporated into subsections (b) and (c) but
omitted from subsection (f), it fails the first
prong of Chevron.

132 T.C. at 139. The Tax Court further reasoned that because
subsection (f), in terms, is only available to taxpayers
ineligible for relief under subsections (b) or (c), Congress, by
omitting the two-year time limit in subsection (f), intended that
the subsection be available to taxpayers who missed the filing

14
deadline under subsections (b) or (c) as a result of some
inequity. Id. at 139-41.

After the Commissioner filed his opening brief on this
appeal, the Court of Appeals for the Seventh Circuit released
the opinion in Lantz, which we quote above, reversing the
decision of the Tax Court in that case and upholding the
two-year regulatory deadline for claims filed under subsection
6015(f). In its opinion the Court of Appeals rejected the Tax
Court=s theory of Aaudible silence.@ In so doing, the Court
noted that Aif there is no deadline in subsection (f), the
two-year deadlines in subsections (b) and (c) will be set largely
at naught because the substantive criteria of those subsections
are virtually the same as those of [subsection] (f).@ Lantz, 607
F.3d at 484. The Court found further support for its decision
in several of section 6015=s provisionsCincluding the
introductory phrase of subsection (f)Cexpressly granting the
Secretary rulemaking authority, and in the circumstance that
subsection (f), rather than requiring the Secretary to grant
relief if certain conditions are met, vests him with discretion to
grant such relief. Id. at 485; see Lopez v. Davis, 531 U.S.
230, 243-44, 121 S.Ct. 714, 723-24 (2001) (A[E]ven if a
statutory scheme requires individualized determinations . . .
the decisionmaker has the authority to rely on rulemaking to
resolve certain issues of general applicability unless Congress
clearly expresses an intent to withhold that authority.@)
(internal citation and quotation marks omitted).

B. Chevron - Step 1

15
 The Supreme Court in Chevron instructed that courts,
when analyzing administrative regulations to determine if they
are valid, first should look at whether Congress has Adirectly
spoken to the precise question at issue.@ 467 U.S. at 842, 104
S.Ct. at 2781. Denise argues that Congress unequivocally has
spoken to the question at issue here and has precluded the
Secretary from adopting a regulation establishing a two-year
filing deadline under subsection (f). She predicates this
contention on the correct observation that Congress did not
include a two-year filing deadline in subsection (f) equivalent
to that it did include in subsections (b) and (c). Rather,
Congress instructed the Secretary to consider all relevant facts
and circumstances when deciding whether to grant relief under
subsection (f), and stated that relief is available under
subsection (f) only if unavailable under (b) and (c). We
disagree with Denise on this point.

Section 6015 tells us nothing about when claims may be
brought under subsection (f) as the section does not address
this point. We agree with the Court of Appeals for the
Seventh Circuit that this silence is not made audible by the
presence of deadlines in subsections (b) and (c). Though we
recognize that A[i]t is generally presumed that Congress acts
intentionally and purposely when it includes particular
language in one section of a statute but omits it in another,@ see
City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338, 114
S.Ct. 1588, 1593 (1994) (internal quotation marks and citation
omitted), the absence of a statutory filing deadline in
subsection (f) similar to those in subsections (b) and (c) does
not require us to conclude that the Secretary cannot impose a
two-year deadline by regulation.

16
 It is important to recognize that there can be several
explanations for Congress=s omission of a deadline for filing an
application for relief under subsection (f). To start with,
Congress may have intended to defer the issue of timing to the
Secretary who can establish procedures for granting relief
under subsection (f) and can determine whether relief, no
matter when sought, should be granted.4 On the other hand, it
is possible that Congress intended that there not be a deadline
for claims under subsection (f) or, alternatively, that any
deadline imposed by a regulation under that subsection be
greater than the two-year period provided in subsections (b)
and (c). But we cannot say that section 6015, in terms,
requires that we embrace any particular view of Congress=s
intent with respect to a subsection (f) filing deadline.

4
There is considerable discussion on this appeal between the
parties involving the question of whether a limitations period is
procedural or substantive. But we will not focus on that
discussion as we are not concerned with issues such as the
applicability of federal or state law under Erie R. Co. v.
Tomkins, 304 U.S. 64, 58 S.Ct. 817 (1938), or the choice of
law when the law of different states may be implicated in
litigation. Rather, we are concerned with whether Congress
intended to authorize the Secretary to include a filing time
deadline among the Aprocedures@ that he can adopt to
implement subsection 6015(f).

17
 Nor is the question of whether there can be a two-year
deadline period under subsection (f) answered by its provision
that the Secretary Atak[e] into account all the facts and
circumstances@ when deciding whether to grant relief under
that subsection. See 26 U.S.C. ' 6015(f)(1). Denise argues
that this instruction makes clear that the timing of the request is
a factor that the Secretary must take into account in
considering a claim under subsection 6015(f). Congress,
however, included an identical instruction in subsection (b),
see 26 U.S.C. ' 6015(b)(1)(D), despite the presence of an
explicit filing deadline in that subsection, see subsection
(b)(1)(E), and the requirement that relief be granted if all the
criteria listed in subsection (b)(1) are satisfied. The Secretary
thus cannot grant relief to a taxpayer who elects to seek
subsection (b) relief after the deadline under that subsection
has passed, nor can he consider timing as a factor in a
determination of whether to grant relief if the taxpayer makes a
request for relief within the two-year period. Because the
Secretary is prevented from considering the timing of an
election for relief under subsection (b) notwithstanding the
statutory instruction to Atak[e] into account all the facts and
circumstances,@ we hardly can hold that the exact same
instruction clearly requires the Secretary to consider the timing
of a request for relief on an individualized basis under
subsection (f).

Denise also points to the circumstance that relief under
subsection (f) is limited to individuals ineligible for relief
under subsections (b) and (c). See 26 U.S.C. ' 6015(f)(2).
Because the requirements for relief under subsections (b) and
(f) are similar, though not identical, Denise argues that
Congress must have intended that relief under subsection (f) be

18
available to persons who missed the filing deadline under
subsection (b). Yet Denise does not dispute that, regardless of
timing, a taxpayer would be eligible for relief under subsection
(f) but not subsection (b) when the taxpayer is seeking relief
from liability for an underpayment as distinguished from an
understatement of taxes, undoubtedly a very large category of
cases, or when the taxpayer is seeking relief from an
understatement that he or she knew or should have known was
made. Accordingly, subsection (f)=s exclusion of those
eligible for relief under subsection (b) and (c) sheds little light
on the question before us.

What subsection (f)(2) may mean is that for relief to be
granted under subsection (f) it must never have been available
under subsection (b) or (c) whether or not timely sought under
those subsections. Indeed, such a view of Congress=s intent
would be consistent with the establishment of explicit deadline
periods in subsections (b) and (c). Along this line we point
out that it would be strange if Congress established a deadline
for a claim under one subsection but also provided that a
claimant at a date beyond that deadline could make the same
claim for the same type of relief under another subsection and
thereby effectively by-pass the deadline period. In addressing
this point we reiterate that among the reasons that relief might
be available under subsection (f) that never was available
under subsection (b) or (c) is that subsection (f) relief may be
available for both understatements and underpayments of taxes
whereas subsections (b) and (c) are limited to understatements.
Therefore, the provision of subsection (f) limiting the
availability of that subsection to taxpayers ineligible for relief
under subsection (b) and (c) has real meaning even if it does
not save claims that had been, but no longer are, within the

19
scope of subsections (b) and (c) because, if asserted, they
would be untimely under those two subsections. Overall, we
see no escape from the conclusion that section 6015 is
ambiguous on the question of when a request for relief may be
brought under subsection (f).

C. Chevron - Step 2

Inasmuch as Congress has not spoken directly to the
precise question in issue, i.e., can the Secretary by regulation
establish a deadline for a taxpayer to seek subsection (f) relief,
we next must examine whether the Secretary=s imposition of a
two-year deadline for claims brought under subsection (f)
permissibly implements that subsection. In resolving this
question, we defer to the Secretary=s implementation of the
subsection Aunless the legislative history or the purpose and
structure of the act clearly reveal a contrary intent on the part
of Congress.@ Appalachian States Low-Level Radioactive
Waste Comm=n v. O=Leary, 93 F.3d 103, 110 (3d Cir. 1996)
(quoting Chem. Mfrs. Ass=n v. Natural Res. Def. Council, Inc.,
470 U.S. 116, 126, 105 S.Ct. 1102, 1108 (1985)). ASo long as
the regulation bears a fair relationship to the language of the
statute, reflects the views of those who sought its enactment,
and matches the purpose they articulated, it will merit
deference.=@ Id. at 110 (quoting Sekula v. F.D.I.C., 39 F.3d
448, 452 (3d Cir. 1994)).5 We therefore turn to the legislative

5
The deference is particularly broad when the regulation is
adopted pursuant to authority in a specific statute as
distinguished from being adopted under general rule making

20
history and purpose of section 6015 to determine whether they
reveal that Congress had an intent in adopting section 6015(f)
that was contrary to the regulation establishing the two-year
deadline. See id.

authority. See Armstrong World Indus. Inc. v. Comm=r, 974
F.2d 422, 441 (3d Cir. 1992).

21
 In her brief, Denise discusses the legislative history of
the provisions at issue at some length. In particular, she
points to statements various Senators made and passages from
a joint conference report to the effect that Congress intended to
expand significantly the prior innocent spouse provisions in
1998 and 2006. See appellee=s br. at 25-34. Certainly there
is no doubt but that Congress significantly expanded the
circumstances in which a taxpayer could obtain innocent
spouse relief when it enacted section 6015 in its current form.
For example, the current statute eliminates the previous
requirements that innocent spouse relief be limited to grossly
erroneous items attributable to the other spouse and that the
Secretary grant relief only for understatements exceeding a
certain monetary threshold. See 26 U.S.C. ' 6013(e),
repealed by Internal Revenue Restructuring and Reform Act of
1998, (ARRA@), Pub. L. No. 105-206 ' 3201, 112 Stat. 685,
740. Moreover, the addition of subsection (f),
notwithstanding the Secretary=s adoption of the regulatory
two-year deadline, allows for the possibility of there being
relief for underpayments and for understatements of which the
taxpayer seeking relief knew or should have known.

The closest Denise is able to come to pointing to any
legislative history suggesting that Congress in enacting
subsection 6015(f) had an intent inconsistent with the terms of
the regulation is in the legislative history of 26 U.S.C. ' 66.
That provision of the Internal Revenue Code addresses the
treatment of community property in community property states
when spouses do not file income tax returns jointly. Congress
amended subsection (c) of section 66 by the same act that

22
created subsection 6015(f) 6 and therefore, not surprisingly,
subsection 66 provides for equitable relief in language that
mirrors that of subsection 6015(f). See 26 U.S.C. ' 66(c)(4);
RRA Pub. L. No. 105-206 ' 3201, 112 Stat. 685, 740. Some
statements in the legislative history of section 66(c) suggest
that the Secretary, when Ataking into account all the facts and
circumstances,@ 26 U.S.C. ' 66(c)(4), should consider the
timing of the request for relief.

The foregoing history, which the Tax Court discussed
in its opinion in Lantz v. Commissioner, 132 T.C. at 141-44,
lends some support to Denise=s position, but it fails to
overcome the deference that we must give to Treasury
Regulation ' 1.6015-5(b)(1) under Chevron and it does not
clearly demonstrate that Congress intended that requests for
relief under subsection 6015(f) not be subject to a two-year
filing deadline. Accordingly, the regulation is valid. See
also Swallows Holding, Ltd. v. Comm=r, 515 F.3d 162, 172 (3d
Cir. 2008) (ADrawing [a] temporal line [to claim a tax
deduction] is a task properly within the powers and expertise
of the IRS. Chevron recognizes the notion that the IRS is in a
superior position to make judgments concerning the
administration of the ambiguities in its enabling statute.@).

6
See RRA, Pub. L. No. 105-206, 112 Stat. 685.

23
 Finally, in our discussion of Chevron we take note of
Denise=s argument that the inclusion of deadline periods in
subsections (b) and (c) but omission of such a period in
subsection (f) Ademonstrates Congressional intent that requests
for equitable relief not be subject to a bright-line time
limitation, but rather allow the taxpayer to request relief during
the 10-year collection period of [26 U.S.C.] ' 6502.@
Appellee=s br. at 15. But inasmuch as Section 6502 is a
limitation only on the government=s time for collection, Denise
really is arguing that there is no deadline for filing a subsection
(f) claim and that the Secretary by regulation cannot fill the
void that Congress left by omitting such a deadline. We are
reluctant to reach such a result as it would be inconsistent with
the practice of the federal courts to borrow statutes of
limitations from appropriate sources, even state law, to fill the
void that Congress leaves when it does not establish a statute of
limitations. See, e.g., Lake v. Arnold, 232 F.3d 360, 366 (3d
Cir. 2000). Moreover, Denise=s argument is hardly consistent
with the general practice of Congress to provide for all sorts of
specific periods for action to be taken under the Internal
Revenue Code.7

7
We have not overlooked our contemporaneous opinion in Rea
v. Federated Investors, No. 10-1440, 2010 U.S. App. LEXIS
25501, at * 7, F.3d , (3d Cir. Dec. 15, 2010), a
case construing a statute dealing with employment protection
to persons who had been or were in bankruptcy enacted in a
format in some ways similar to that in section 6015. There we
would not expand on the limited protection given to persons in
private employment from bankruptcy discrimination to include
the more expansive protection from bankruptcy discrimination

24
given to pubic employees. In Rea we declined to Acontravene
congressional intent by implying statutory language that
Congress omitted.@ But Rea dealt with the construction of a
statute, not with whether a regulation implementing a statute
should be upheld under the principles in Chevron, the issue
involved here. Thus, though we uphold the regulation at issue
here we are not Aimplying@ anything into section 6015.

25
 D. Equitable Tolling

Denise lastly argues that even if the regulation is valid,
it is subject to equitable tolling and she urges that the deadline
period be tolled here.8 We have held that Athe tolling of filing
deadlines is appropriate where principles of equity would
make the rigid application of a limitation period unfair.@
Walker v. Astrue, 593 F.3d 274, 279 (3d Cir. 2010) (internal
quotation marks and citation omitted). There may be
equitable tolling A(1) where the defendant has actively misled
the plaintiff respecting the plaintiff's cause of action; (2) where
the plaintiff in some extraordinary way has been prevented
from asserting his or her rights; or (3) where the plaintiff has
timely asserted his or her rights mistakenly in the wrong
forum.@ Hedges v. United States, 404 F.3d 744, 751 (3d Cir.
2005) (internal quotation marks and citation omitted). But
inasmuch as the Tax Court did not address the equitable tolling
issue and additional facts not in the record may be material to
the issue we think that that Court should explore the issue in
the first instance. We therefore will remand the case to the
Tax Court to decide whether the Treasury Department
regulation at 26 C.F.R. ' 1.6015-5(b)(1) is subject to equitable
tolling and, if so, whether Denise meets the equitable tolling
standard.

8
In the section of her brief dealing with equitable tolling
Denise does not explain why there should be equitable tolling
in this case. Rather, she concentrates on why there can be
equitable tolling.

26
 V. CONCLUSION

For the foregoing reasons we will reverse the decision
of the Tax Court entered November 5, 2009, to the extent that
that decision reflected the Tax Court=s opinion that the
regulatory deadline for claims under subsection 6015(f) is
invalid, and will remand the case to the Tax Court to consider
the equitable tolling issue. The parties will bear their own
costs on this appeal.

27
 Denise Mannella v. Commissioner of Internal Revenue
No. 10-1308

AMBRO, Circuit Judge, dissenting

Spouses seeking relief from joint and several liability
for understatements or underpayments of income taxes look
to 26 U.S.C. § 6015. Among other things, it spares innocent
spouses when it is equitable to do so. Id. § 6015(b) (dealing
with understatements).1 But to be eligible for relief they must
apply within two years after the IRS begins collection
activity. Id. § 6015(b).

What if an innocent spouse does not qualify because
two years have passed since collection efforts began? It
appears there is a safety-valve (Ms. Mannella’s counsel calls
it a ―catchall‖) ─ § 6015(f). All that it requires, other than
showing relief is not available under subsection (b), is that it
not be fair to hold the innocent spouse responsible for the
other spouse’s tax liability. The intuitive (indeed, blink)
thought, then, is that the time to file under subsection (f)
extends beyond two years. After all, it can’t logically be less
time, as subsection (b) is available for at least some taxpayers
who elect within two years, and thus, one would think, (f)
would be available for later applicants.

Is it that easy? Well, no. There is a catch (as opposed

1
Section 6015(c) also provides relief for certain
divorced or separated taxpayers, and for these persons
imposes an explicit two-year statute of limitations. However,
it is of little relevance to our case and is not discussed in this
dissent.

1
to a catchall), we are told. Though subsection (f) enacted by
Congress sets no time limit to seek relief, the Department of
the Treasury2 has adopted a Regulation ─ 26 C.F.R. § 1.6015-
5(b)(1), complemented by IRS Rev. Proc. 2003-61 § 4.01(3)3
─ that does. It is two years.

The United States Tax Court has overruled that
deadline, Mannella v. C.I.R., 132 T.C. 196 (2009), and the
IRS appeals. Its argument, which won in the Seventh Circuit
Court’s decision in Lantz v. C.I.R., 607 F.3d 479 (7th Cir.
2010), is essentially that Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984), requires us
to defer to its judgment, as that judgment is reasonable.

The Tax Court, whose hands heretofore were tied only
in the Seventh Circuit,4 reasons that the Regulation is invalid
under step one of Chevron’s procedure for reviewing an
agency’s construction of a statute it administers because
Congress has spoken directly to the issue involved.
Specifically, the Tax Court reasons that the Regulation ―runs
directly contrary to the nature of the relief provided in section
6015(f).‖ 132 T.C. at 202. And even were subsection (f)
deemed silent or ambiguous, ―a 2-year limitations period is
not a permissible construction of [that provision], and

2
I use ―Department of the Treasury,‖ ―Secretary‖ (or
―Secretary of the Treasury‖), the ―Service,‖ and ―IRS‖
interchangeably.
3
See also Rev. Proc. 2000-15 § 4.01(3).
4
See Golsen v. Commissioner, 54 T.C. 742, 1970 WL
2191 (1970), aff’d 445 F.2d 985 (10th Cir. 1971)
(determining that the Tax Court must apply the law of the
Court of Appeals to which an appeal for that case would later
lie).

2
therefore [the Regulation] is invalid under Chevron step 2,‖
id., which holds that congressional silence or ambiguity on a
specific issue confers on the administrative agency the power
to construe the statute in any way that is permissible (that is,
reasonable).

I agree with my colleagues, and not the Tax Court, that
Congress has not spoken directly on what the timeframe
under subsection (f) must be. Indeed, the subsection is
literally silent.5

In that case, Chevron’s second step comes into play.
My colleagues, and all three members of the panel in Lantz,
hold that the Regulation passes muster. They reason, per
Chevron, that deference is due an agency’s construction of a
statute it implements, i.e., a presumption of validity attends
that construction. Thus, though Ms. Mannella’s position has
―support,‖ Maj. Op. at 22, and ―[t]he arguments against the
Tax Court’s interpretation of subsection (f) as barring a fixed
deadline . . . are powerful,‖ Lantz, 607 F.3d at 486, they do
not overcome that presumption. Put another way, that some,
or even most, courts would have chosen a different deadline
than that picked by the IRS is irrelevant, as the Supreme
Court has settled since 1984 who gets first call in construing
the statute.6

5
That said, the Tax Court’s reasoning is not so
specious that it deserves to be dismissed as simply
oxymoronic by its use of ―audible silence.‖ Lantz, 607 F.3d
at 481. That gibe, however, does sidestep another oxymoron
– humble pedantry.
6
As this is settled law, I don’t enter the well-vetted
briarpatch of whether the Supreme Court should have
accorded agencies of the Executive Branch interpretive
powers that courts thought by tradition belonged to them. See

3
 But that first call must be reasonable. It is hard to say
that is so when the IRS gives no reasons for ―add[ing] a new
threshold requirement,‖ Rev. Proc. 2003-61 §3.01, for
subsection (f) eligibility. ―It is well-established that an
agency’s action must be upheld, if at all, on the basis
articulated by the agency itself.‖ Motor Vehicle Mfrs Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983).
Here, however, the IRS has not advanced any reasoning for
its decision to impose a two-year limitations period on
taxpayers seeking relief under subsection (f), leaving us no
basis to conduct the analysis mandated by Chevron step two.

There may exist justifications on which the IRS could
have reasonably relied in order to impose a two-year limit on
subsection (f) relief. The problem is that there are also
arbitrary and capricious reasons that, if articulated by the
Service as the basis for the two-year limit, would require us to
strike down that limit—for example, if the IRS enacted the
two-year deadline based on an incorrect belief that the statute
required it, or based on a factual supposition belied by the
administrative record. See, e.g., Zheng v. Gonzales, 422 F.3d
98, 120 (3d Cir. 2005) (rejecting immigration regulation at
Chevron step two because it was based on an impermissible
reading of the 8 U.S.C. § 1255(a)). Because the IRS has not
articulated its reasoning, we cannot discern whether the two-

generally Jack M. Beerman, End the Chevron Experiment
Now: How Chevron Has Failed and Why It Can and Should
be Overruled, 42 Conn. L. Rev. 779 (2010); Cass R. Sunstein,
Law and Administration After Chevron, 90 Colum. L. Rev.
2071 (1990); Cynthia R. Farina, Statutory Interpretation and
the Balance of Power in the Administrative State, 89 Colum.
L. Rev. 452 (1989); Joseph F. Weis, Jr., A Judicial
Perspective on Deference to Administrative Agencies: Some
Grenades From the Trenches, 2 Admin. L. J. 301 (1988).

4
year limit falls into the permissible, or the arbitrary and
capricious, category.

Into the vacuum left by the IRS the Lantz Court has
injected reasoning of its own, which my colleagues cite at
length. But it is black-letter law—and a necessary corollary
of the deference owed to agencies—that courts may not
supplement deficient agency reasoning. Sec. & Exch.
Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943) (―The
grounds upon which an administrative order must be judged
are those upon which the record discloses that its action was
based.‖). Thus, the Lantz Court’s surrogate surmising of
agency reasons does not, I believe, save the two-year limit.7

Further, I do not find Lantz’s reasoning in support of
the two-year limit to be convincing. I will address those
reasons, which my colleagues seemingly endorse, in turn.

7
My colleagues largely do not engage in this exercise
(though nothing they write shows disagreement), instead
rejecting Ms. Mannella’s arguments against the two-year
limit because they do not ―clearly demonstrate that Congress
intended that requests for relief under subsection 6015(f) not
be subject to a two-year filing deadline.‖ Maj. Op. at 20. By
this approach my colleagues place on Ms. Mannella the
burden (a heavy one, at that) of proving that it is not
reasonable to adopt a deadline backed by no reason. I do not
buy this approach. Moreover, it also ducks the critical
inquiry—whether the IRS’s reason for implementing the two-
year limit was ―arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law.‖ 5 U.S.C.
§ 706(2)(A). By abjuring reason, the IRS, I believe, abuses
its discretion.

5
 1. Reason: The Lantz Court wrote that, absent a two-
year deadline in (f), the two-year deadline in (b) would be
made superfluous, as ―the substantive criteria of th[at]
section[] are virtually the same as those of (f).‖ Lantz, 607
F.3d at 484. Indeed, it took this thought even further by
stating that ―[h]ad the Treasury decided to impose no deadline
on the filing of claims under subsection (f), or even just a
deadline longer than two years, or in lieu of a fixed deadline
the flexible deadline of the laches doctrine, it would have
been undermining the two-year deadline fixed by Congress in
subsection[] (b).‖ Id.

Response: To begin, to the extent that it is correct
that the ―substantive criteria‖ of (b) and (f) are ―virtually the
same,‖ id. at 484, then Lantz’s approach renders subsection
(f) superfluous, which cannot be what Congress intended. As
Lantz later notes, however (and the majority agrees, Maj. Op.
at 18), there is a large class of taxpayers who would be
eligible for relief under (f), but not (b), because the latter,
unlike the former, applies only to: (i) tax understatements,
and not tax underpayments; id. at 486; and (ii) spouses who
lacked actual or constructive knowledge of the
understatement.

Moreover, subsection (f) will not ―undermin[e]‖ the
two-year deadline imposed in subsection (b) even as to those
taxpayers who (but for the two-year limit) might qualify
under both subsections. Of significance, (f) is discretionary,
whereas (b) is mandatory. Compare § 6015(f) (―the Secretary
may relieve [the innocent spouse] of such liability‖), with
§ 6015(b) (―the [innocent spouse] shall be relieved of liability
for tax‖) (emphases added). Thus, even if (f) has no time
limit, taxpayers who might qualify under (b) would be well-
advised to file in time to take advantage of that mandatory
provision instead of waiting to seek discretionary relief under
(f). Put another way, Congress could have chosen to free the

6
IRS to afford discretionary relief to innocent spouses who
missed the two-year deadline in certain exceptional cases,
while maintaining the two-year limitations period for the
mine-run of cases.

In addition, as my colleagues note, Maj. Op. at 21-22,
Congress amended 26 U.S.C. § 66 (addressing the treatment
of community property when spouses do not file joint returns
in community-property states) by adding a subsection (c) at
the same time it added subsection (f) to § 6015, and the
language of each subsection mirrors the other. Statements in
the legislative history of § 66(c) indicate that the IRS should
consider the timing of the request for relief. H.R. Rep. No.
98-432, pt 2, at 1501 & 03 (1984) (the IRS should consider,
inter alia, ―whether the defense was promptly raised so as to
prevent the period of limitations from running on the other
spouse‖). Moreover, the Tax Court pointed out in its decision
now reversed by the Seventh Circuit that, ―[i]n [the]
announcement of the proposed regulations under [§] 66(c), 67
Fed. Reg. 2841 (Jan. 22, 2002), the Secretary [of the
Treasury] observed that the relief provided in sec. 66(c) is
analogous to the relief provision in section 6015(b) *** [and]
section 6015(f).‖ Lantz v. C.I.R., 132 T.C. 131, 142 n.9
(2009), overruled by 607 F.3d 479 (7th Cir. 2010).
2. Reason: The Lantz Court also observed that
―[s]ince the government can refuse to grant equitable relief to
someone who meets the statutory criteria and applies within
two years of the first collection action, why can’t it decide to
deny relief to a class of applicants defined as those who
waited too long?‖ 607 F.3d at 485 (emphasis in text).

Response: I agree that the answer to this rhetorical
question is that the Secretary can exercise the discretion
granted by subsection (f) either case-by-case or categorically.
Cf. Lopez v. Davis, 531 U.S. 230, 243-44 (2001) (Bureau of

7
Prisons could exercise its discretion to reduce the sentences of
certain prisoners on a categorical basis). However, because it
is not clear why the IRS promulgated the two-year limit (or
whether it even purported to do so as an exercise of its
discretion at all, rather than out of a misguided perception of
what the statute required), its authority to exercise its
discretion categorically should not save the two-year limit the
Regulation by ukase imposes.

3. Reason: Though ―innocent spouses who fall
through the cracks in (b),‖ Lantz, 607 F.3d at 484., have the
safety protection of (f), ―[t]he details . . . were left to the
Treasury Department to work out . . . .‖ Id. The preamble to
(f) confers on the Secretary of the Treasury the right to
prescribe ―procedures‖ to relieve individuals of liability on
joint income tax returns. When claims may be brought is
such a procedure. ―Congress’s authorizing an agency to grant
discretionary relief under procedures that the agency is to
devise itself . . . writes the agency a blank check; and one of
the blanks on the check is the deadline for applying for such
relief.‖ Id. at 485.
Response: If the preamble to both subsections (b)
and (f) is ―[u]nder procedures prescribed by the Secretary,‖
and (b) has a deadline of two years while (f) does not, then is
not that deadline substantive rather than procedural?
Procedures here cover how to go about making a request for
relief, and limitations periods are generally considered
substantive. Cf. Lafferty v. St. Riel, 495 F.3d 72, 76 (3d Cir.
2007) (statutes of limitation are substantive, not procedural,
for purposes of determining whether state or federal law
applies in diversity cases). More specifically, in the tax
context ―a time bar is not simply a procedural rule. In the
case of equity, it has the substantive effect of making one
circumstance, the time of the claim, the only relevant factor.‖
Hall v. C.I.R., 2010 WL 3703837 *3 (U.S. Tax Ct.).

8
 4. Reason: Finally, the Lantz Court observed that the
IRS could impose a deadline for subsection (f) applications
―designed to reduce the flow to manageable proportions.‖
607 F.3d at 486.

Response: While it may be true that the IRS
could impose a deadline in order to reduce the sheer number
of applications for relief under subsection (f), that observation
is of little relevance here, where there is no administrative (or
other) record of an unmanageable flow of late-filed
exemption applications.

* * * * *

To deny taxpayers who miss the deadline to invoke
subsection (b) even a chance to make an equitable exemption
claim under (f) is concededly ―harsh.‖ Id. Those taxpayers
are left in a Catch-22 paradox: they are ineligible to seek an
exemption under (f) unless ineligible under (b), but once
ineligible as to timing under the latter they can’t be eligible
under the former. The take-away thought for some may be
that Congress could have drafted directly (or more clearly)
but it didn’t, and now the agency gets to make the
gatekeeping rules. But the agency only gets to do so within
reason.

And there’s the rub. It gave no reasons. Courts thus
make up or surmise reasons (and even they underwhelm). Is
this the proper way to review interpretive decisions by
agencies?

The Supreme Court has answered that question in the
negative. To repeat: ―[i]t is well-established that an agency’s
action must be upheld, if at all, on the basis articulated by the
agency itself.‖ Motor Vehicle Mfrs Ass’n, 463 U.S. at 50.
When courts ignore that admonition, Chevron becomes an

9
exit ramp to the twilight zone by ―reliev[ing] the pressure on
agencies to develop a full, expert record . . . .‖ Elizabeth V.
Foote, Statutory Interpretation or Public Administration:
How Chevron Misconceives the Function of Agencies and
Why it Matters, 59 Admin. L. Rev. 673, 710 (Fall 2007). In
this way, ―[r]eviewing courts can brush off serious challenges
to agency decisions by invoking Chevron without engaging
whether the agency is thwarting imperfectly expressed
congressional intent.‖ Beerman, End the Failed Chevron
Experiment Now: How Chevron Has Failed and Why It Can
and Should be Overruled, 42 Conn. L. Rev. at 784. I believe
this is what happened here, and thus respectfully dissent.

10