Arlene L. Pollock v. Commissioner

132 T.C. No. 3

UNITED STATES TAX COURT

ARLENE L. POLLOCK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 17755-07. Filed February 12, 2009.

P sought relief from joint liability for unpaid
taxes under sec. 6015, I.R.C. R sent her a notice of
determination denying relief, but at a time before
Congress gave the Tax Court jurisdiction to review such
denials. R then sought to collect the taxes in a lien-
enforcement action. This prompted the District Court
hearing the lien-enforcement action to invoke the
doctrine of equitable tolling and give P 30 days to
file a petition with the Tax Court. P filed her
petition within the time limit set by the District
Court’s order. R moved to dismiss for lack of
jurisdiction because P filed her petition more than 90
days after R had mailed the notice of determination to
her.

Held: We are not barred from reviewing the
District Court’s order.
 - 2 -

Held, further: Sec. 6015, I.R.C., sets a
jurisdictional time limit which may not be equitably
tolled. The Tax Court has no jurisdiction to review
P’s petition.

Jason Grimes, for petitioner.1

Leonard Provenzale, for respondent.

OPINION

HOLMES, Judge: The IRS sent Arlene Pollock a notice of

determination denying her request for innocent-spouse relief on

April 27, 2006. She filed a petition seeking review of that

notice more then a year later on August 9, 2007. The Code gives

taxpayers only 90 days to file. Pollock waited 469 days. Do the

math, the Commissioner tells us, and dismiss her petition for

lack of jurisdiction.

Not so fast, says Pollock. On the day that the Commissioner

mailed his notice of determination, the Government’s position was

that the Tax Court lacked jurisdiction to review it. This

position had already been endorsed by the Ninth Circuit,2 and

would be again five days later by the Eighth Circuit.3 On July

1
The Court acknowledges the outstanding pro bono effort of
petitioner’s counsel in this case.
2
Commissioner v. Ewing, 439 F.3d 1009 (9th Cir. Feb. 28,
2006), revg. 118 T.C. 494 (2002), vacating 122 T.C. 32 (2004).
3
Bartman v. Commissioner, 446 F.3d 785 (8th Cir. May 2,
(continued...)
 - 3 -

25, 2006, two days before Pollock’s 90-day window would shut, we

ourselves decided that we had no jurisdiction.4 And on August

25, 2006, the Chief Counsel of the IRS told his lawyers to move

to dismiss any such petitions still pending before us for lack of

jurisdiction. Congress later amended the Code to give us

jurisdiction and made the change effective for all taxes “arising

or remaining unpaid on or after [December 20, 2006].”5 Pollock’s

taxes remain unpaid to this day. How can the usual 90-day limit

apply to her?

The question presented: Must we dismiss Pollock’s case for

failure to file a petition with us when we would have had no

jurisdiction over it?

Background

Pollock married in 1986, and had two children. She has an

eighth-grade education and was a stay-at-home mom for most of the

marriage. Differences between her and her husband grew and

became irreconcilable, and they divorced in November 2000, with

Pollock getting the family’s home. Left behind from the marriage

was an enormous tax debt--for the years 1995-99, the Pollocks

jointly owed a total of $183,331, which with interest has grown

3
(...continued)
2006), affg. in part, vacating in part T.C. Memo. 2004-93.
4
Billings v. Commissioner, 127 T.C. 7 (2006).
5
Tax Relief and Health Care Act of 2006 (TRHCA), Pub. L.
109-432, div. C, sec. 408(a), (c), 120 Stat. 3061, 3062.
 - 4 -

to over $400,000. Neither Pollock paid and, between August 2001

and May 2002, the IRS sent them notices that it had filed federal

tax liens (NFTLs) against them.

It is from this debt that Pollock seeks relief. That

liability is hers because the Code makes spouses who sign a joint

return jointly and severally liable for any tax due. Sec.

6013(d)(3).6 But relief is available in some cases under section

6015. And one way for a spouse to win relief under that section

is to show that, “taking into account all the facts and

circumstances, it is inequitable to hold [her] liable for any

unpaid tax or any deficiency (or any portion of either).” Sec.

6015(f)(1). Our jurisdiction over such nondeficiency stand-alone

petitions7 brought under section 6015(f) was unclear in 2006.

Even before that, back in 2002 when the Commissioner sent

his last NFTL to the Pollocks, we were already analyzing our

jurisdiction over such cases. In Ewing v. Commissioner, 118 T.C.

494 (2002) (Ewing I), we held--at the suggestion of the

6
Unless otherwise indicated, all section references are to
the Internal Revenue Code.
7
“Nondeficiency” because the IRS accepted the return
computing the unpaid tax as filed and asserted no deficiency, and
“stand-alone” because the claim for innocent-spouse relief was
made under section 6015 and not as part of a deficiency action or
as part of a collection due process hearing under section 6320 or
6330. See Billings, 127 T.C. at 7.
 - 5 -

government--that we did have jurisdiction.8 Our initial analysis

did not go unnoticed. In 2004 the Second Circuit expressed

doubt. Maier v. Commissioner, 360 F.3d 361, 363 n.1 (2d Cir.

2004), affg. 119 T.C. 267 (2002). The Government then changed

its mind and argued that we had no jurisdiction when Ewing I was

appealed. In February 2006, the Ninth Circuit agreed with the

Government’s new position. Commissioner v. Ewing, 439 F.3d 1009

(9th Cir. 2006), revg. Ewing I, vacating 122 T.C. 32 (Ewing II).

Pollock began the process that would lead to this case sometime

between Ewing I and the Ninth Circuit’s reversal by filing a Form

8857 with the IRS.9

On April 27, 2006, four months after the Ninth Circuit ruled

in Ewing, the IRS mailed a notice of determination denying

innocent-spouse relief to Pollock. Prominently featured on its

first page was a warning that she had only 90 days to file a

petition challenging it. But where? The notice said Tax Court,

but just days after the Commissioner mailed the notice to

8
IRS litigation policy at the time was to concede our
ability to hear all claims for relief under section 6015(f). See
IRS Chief Counsel Notice N(35)000-338 (June 5, 2000).
9
Form 8857, Request for Innocent Spouse Relief, is filed by
a spouse seeking relief from joint and several liability and
related penalties. Pollock claims she submitted Form 8857 in
August 2002. The Commissioner claims that she first requested
innocent-spouse relief in December 2005, and then amended her
Form 8857 in January 2006. We sidestep this dispute; resolving
it would not affect our analysis of the Commissioner’s motion to
dismiss.
 - 6 -

Pollock, the Eighth Circuit in Bartman v. Commissioner, 446 F.3d

785, 787 (8th Cir. 2006), affg. in part, vacating in part T.C.

Memo. 2004-93, adopted the Ninth Circuit’s position. The final

blow came on July 25, 2006, when we revisited the question and

agreed with these circuit courts that we did not have

jurisdiction over cases like Pollock’s. See Billings v.

Commissioner, 127 T.C. 7 (2006). Two days later, Pollock’s 90-

day deadline for filing with us expired. She had at this point

never filed a petition contesting the IRS’s denial of relief with

us or any other court.

Later that summer, the IRS’s Office of Chief Counsel

notified IRS attorneys about how they should handle section

6015(f) nondeficiency stand-alone cases after Billings. IRS

Chief Counsel Notice CC-2006-020 (Aug. 25, 2006). This notice

instructed IRS attorneys to file motions to dismiss for lack of

jurisdiction in all nondeficiency stand-alone cases. Id.

Although this was already happening with success (as the Ninth

Circuit’s ruling in Ewing proved), this notice coordinated the

effort and changed the IRS’s previous official stance that we had

jurisdiction over these cases. IRS Office of Chief Counsel

Notice CC-2006-020 (Aug. 25, 2006); see supra n.8.

A month later, the Department of Justice began a collection

suit against the Pollocks by filing a lien-enforcement action in

the Southern District of Florida. The Government’s goal was to
 - 7 -

collect more than $378,000 in income-tax debt from both Pollocks,

and more than $318,000 in an unpaid trust-fund-recovery penalty

owed by Pollock’s former husband alone.10 If the Government won,

it would be able to foreclose on the home transferred to Pollock

during the divorce settlement.

On December 20, 2006, Congress amended section 6015 to grant

us jurisdiction to hear section 6015(f) nondeficiency stand-alone

cases. TRHCA, div. C, sec. 408(a), (c); sec. 6015(e)(1)(A). The

amendment was effective for tax liabilities “arising or remaining

unpaid on or after the date of the enactment.”

In 2007, the Commissioner moved for summary judgment against

Pollock and her former husband in District Court. Pollock argued

that she is entitled to innocent-spouse relief under section

6015(f), but everyone now acknowledges that this is not a defense

to a lien-enforcement action.11 On July 9, 2007, the District

10
Taxes that employers withhold from their employees’ wages
are known as "trust fund taxes" because they are deemed a special
fund in trust for the United States under sec. 7501(a). The
Commissioner may collect unpaid employment taxes from a
"responsible person" within the company; that is, someone who was
required to pay over the tax. The money that is collected is
called a trust-fund-recovery-penalty tax. Sec. 6672; see also
Bennett v. Commissioner, T.C. Memo. 2008-251.
11
This may or may not be correct. United States v.
Shanbaum, 10 F.3d 305, 310 (5th Cir. 1994) and United States v.
Haag, 94 AFTR 2d 6665, 2005-1 USTC par. 50,131 (D. Mass.2004),
affd. 485 F.3d 1 (1st Cir. 2007), don’t question the jurisdiction
of Article III courts to entertain innocent-spouse defenses,
while in both cases rejecting them on other grounds. United
States v. Boynton, 99 AFTR 2d 920, 2007-1 USTC par. 50,328 (S.D.
(continued...)
 - 8 -

Court granted summary judgment against Pollock’s former husband.

But on July 12 the same court stayed the case against Pollock and

granted her 30 days to bring a claim for relief before our Court.

In its order, the District Court explained that the special

circumstances of this case--namely, the disordered state of the

law in 2006--justified tolling the 90-day limit:

Ms. Pollock’s failure to file a petition in the
ninety-day window is excusable, given the uncertainty
in the law over this issue. I find that the ninety-day
review period for 6015(f) petitions is analogous to the
ninety-day window for filing a complaint with the EEOC
in Title VII cases. In that situation, the Supreme
Court has held that the filing window is a “requirement
subject to waiver, estoppel, and equitable tolling.”
Zipes v. TWA, 455 U.S. 385, 393 (1982). Waiver and
equitable tolling should also be available to those
seeking review of a denial of innocent spouse relief,
although like the Title VII cases, it should be granted
sparingly. See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 (1984).

Ms. Pollock’s situation merits either a waiver or
tolling of the ninety-day time period for filing a
petition for review with the tax court. The uncertain
state of the law on the jurisdiction of the tax court
at the time she would have had to file the petition
excuses her failure to file. * * *

11
(...continued)
Cal. 2007), following United States v. Feda, 97 AFTR 2d 1985,
2006-1 USTC par. 50,330 (N.D. Ill. 2006), does question the
jurisdiction of District Courts to hear the merits of innocent-
spouse defenses raised as a defense against enforcement actions.
It concludes that section 6015 limits jurisdiction to reviewing
denials of relief in cases before the Tax Court, sec. 6015(e)(1),
and refund suits before a District Court or the Court of Federal
Claims, sec. 6015(e)(3).
 - 9 -

United States v. Pollock, No. 06-80903 (S.D. Fla., July 12, 2007)

(order staying case, granting defendant Arlene Pollock 30 days to

file for relief in United States Tax Court).

Pollock filed her petition with us by the deadline set in

the District Court’s order, and we must now decide whether we

have jurisdiction to hear her case. She has been a Florida

resident throughout, and we held oral argument in Miami on the

Commissioner’s motion to dismiss this case for lack of

jurisdiction.

Discussion

Our Court is one of limited jurisdiction, and we hear only

those cases Congress tells us we can. Sec. 7442; Kluger v.

Commissioner, 83 T.C. 309, 314 (1984). Like other federal

courts, however, we do have jurisdiction in all cases to decide

whether we have jurisdiction. Kluger, 83 T.C. at 314-15. And in

this particular case we look at four questions:

! What weight do we give to the District Court’s order?

! Is section 6015(e)’s deadline for filing petitions with
us a jurisdictional limit or a statute of limitations?

! Can we construe section 6015(e) to give us jurisdiction
over this case?

! Does the effective date of the law granting us
jurisdiction apply to Pollock’s case in a way that
would give us jurisdiction?
 - 10 -

I. The District Court’s Order and Law of the Case

We begin by asking if the District Court has answered the

question of our jurisdiction for us. The legal doctrine that

seems to be involved is “law of the case”--namely, that one

court’s decision over a legal question generally governs later

stages of litigation in the same case. Christianson v. Colt

Indus. Operating Corp., 486 U.S. 800, 815-16 (1988); Pollei v.

Commissioner, 94 T.C. 595, 601 (1990). Law of the case promotes

finality and efficiency by treating an issue as settled once it’s

been decided. Christianson, 486 U.S. at 816. We frankly

acknowledge, however, that law-of-the-case doctrine may not be

the right source of law here, because courts generally apply the

doctrine where there’s a single case being swatted from one court

to the next. But the District Court here did not transfer the

entire lien-enforcement case to us; it just sent us the question

of whether Pollock deserves innocent-spouse relief. Still, if we

ultimately resolve the innocent-spouse issue in Pollock’s favor,

her lien case would go away. This makes us tentatively think

that transfer of the innocent-spouse issue is sufficiently

similar to other case transfers discussed in this corner of the

law to at least consider the doctrine here.

Courts also commonly apply law of the case vertically--

between inferior and superior courts where obedience and not

deference has to be the rule. Id.; Covell v. Heyman, 111 U.S.
 - 11 -

176, 182 (1884). But law of the case also constrains courts at

the same level--“coordinate courts” as the caselaw calls them:

A court has the power to revisit prior decisions
of its own or of a coordinate court in any
circumstance, although as a rule courts should be
loathe to do so in the absence of extraordinary
circumstances such as where the initial decision was
“clearly erroneous and would work a manifest injustice
* * *.”

Christianson, 486 U.S. at 817 (quoting Arizona v. California, 460

U.S. 605, 618 n.8 (1983)). Law of the case in this situation is

a guide to exercising discretion, not a limit on a court’s

power--making it something of an “amorphous concept.” Arizona,

460 U.S. at 618.

The Eleventh Circuit, which would be the venue for an appeal

in this case, described law-of-the-case doctrine--and in a

context more like ours, between two coordinate courts--in Jenkins

Brick Co. v. Bremer, 321 F.3d 1366 (11th Cir. 2003). A District

Court in Alabama had transferred a case to a District Court in

Georgia. The choice to transfer, rather than dismiss, the case

meant that Alabama law would still govern the outcome--and the

parties were convinced that Alabama’s and Georgia’s law differed

in decisive ways. The Eleventh Circuit recognized and applied

the law-of-the-case rule established for coordinate courts in

Christianson, 486 U.S. at 817. It clarified the phrase “clearly

erroneous” and outlined the standard of deference given to a

coordinate court:
 - 12 -

Courts must rarely invoke the "clear error"
exception, lest the exception swallow the rule. With
this principle in mind, the exception can be restated
this way: in a close case, a court must defer to the
legal conclusion of a coordinate court in the same
case; only when the legal error is beyond the scope of
reasonable debate should the court disregard the prior
ruling.

Jenkins Brick, 321 F.3d at 1370-71.

Jenkins Brick also briefly explained that “manifest

injustice” existed because applying Alabama law would violate

Georgia’s public policy. Id. at 1371. We likewise hold that

expanding our jurisdiction beyond the bounds set by Congress

would violate federally established public policy. We thus turn

to the delicate question of whether the District Court’s

conclusion that the facts of Pollock’s case justify an equitable

tolling of the usual 90-day limit is a “close case” or a “clear

error.”

II. Section 6015’s 90-Day Limit: Jurisdictional or a Statute of
Limitations?

The Commissioner argues that no court has the power to

equitably toll the 90-day limit. He contends that when Congress

expanded our jurisdiction to include nondeficiency stand-alone

cases, it did not specifically provide for equitable tolling of

the existing 90-day limit for potential petitioners like Pollock.

And he says that the 90-day limit is jurisdictional--not a

statute of limitations--so we can’t extend it even if we wanted

to.
 - 13 -

Pollock contends that section 6015 invokes equity on its

face and should therefore allow for equitable tolling. She also

argues that equitable tolling is especially appropriate in her

case, given the very peculiar situation she faced. This last

argument we can quickly reject--the possibility of equitable

tolling isn’t dependent on the underlying facts of a particular

case, but rather on whether the language of a particular time

limit can be extended as a matter of law. See John R. Sand &

Gravel Co. v. United States, 552 U.S. __, __, 128 S. Ct. 750,

753-54 (2008); Zipes v. Trans World Airlines, Inc., 455 U.S. 385,

393 (1982).

This gets us directly to the Commissioner’s most compelling

point--that the District Court misconstrued section 6015’s 90-day

deadline to be a statute of limitations rather than a

jurisdictional requirement. This distinction is crucial: A

statute of limitations simply prescribes a period in which a

court may enforce certain rights. Young v. United States, 535

U.S. 43, 47 (2002). Courts may equitably toll them unless it

would be inconsistent with the particular terms of the relevant

statute. Id. at 49; John R. Sand & Gravel Co., 128 S. Ct. at

753. They “protect a defendant’s case-specific interest in

timeliness,” John R. Sand & Gravel Co., 128 S. Ct. at 753, and

courts may be able to look past delay because a limitations

period is, like other affirmative defenses, subject to exceptions
 - 14 -

such as waiver, estoppel--or equitable tolling, Zipes, 455 U.S.

at 393; In re Int’l Admin. Servs., Inc., 408 F.3d 689, 701 (11th

Cir. 2005).

But jurisdictional time limits have altogether different

consequences. If a deadline is jurisdictional, a court may not

use equitable tolling to extend it. Cooley v. Dir., Office of

Workers’ Comp. Programs, 895 F.2d 1301, 1303 (11th Cir. 1990)

(citing Shendock v. Dir., Office of Workers’ Comp. Programs, 893

F.2d 1458, 1466 (3d Cir. 1990)). And this is true even if the

result is harsh: “The age-old rule that a court may not in any

case, even in the interests of justice, extend its jurisdiction

where none exists has always worked injustice in particular

cases.” Christianson, 486 U.S. at 818.12 In a black-lung

benefits case, for example, a court received a petition in

Atlanta one day after the expiration of the limitations period--

even though it was mailed eight days earlier from Birmingham,

Alabama. The Eleventh Circuit held that it could not grant

relief despite the unusual delay in delivery because

“[j]urisdictional limitations and the policies which they embody

must be honored even in the face of apparent injustice or an

administrative agency’s obvious misapplication or violation of

12
But it’s possible that, in close cases, harshness in
result itself may affect a court’s inquiry into the statute’s
character. See Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1096
(9th Cir. 2005).
 - 15 -

substantive law.” Brown v. Dir., Office of Workers’ Comp.

Programs, 864 F.2d 120, 124 (11th Cir. 1989). In United States

v. Brockamp, 519 U.S. 347 (1997), the Supreme Court similarly

held that, although a taxpayer’s mental disability might be a

valid reason for equitable tolling, the Court could not equitably

toll section 6511’s deadline for filing a refund claim because it

contained no “implied equitable tolling” exception. Id. at 348-

49, 354.13 In other cases, courts have held that mistakes made

by a pro se litigant or an agency’s miscommunications about the

proper appeals process cannot justify equitable tolling of a

jurisdictional deadline.14

We distinguish statutes of limitations from jurisdictional

deadlines by applying the normal rules of construction. We start

with the words of the statute and their context. See Pugh v.

Brook (In re Pugh), 158 F.3d 530, 534 (11th Cir. 1998). We look

past plain meaning to determine congressional intent only if the

13
Congress later amended section 6511 to add subsection
(h), which allows equitable tolling in certain circumstances when
the taxpayer is disabled. IRS Restructuring and Reform Act of
1998, Pub. L. 105-206, sec. 3202(a), 112 Stat. 740.
14
See, e.g., Cooley v. Dir., Office of Workers’ Comp.
Programs, 895 F.2d 1301 (11th Cir. 1990) (relief denied where
appeal timely mailed but sent to wrong office); Shendock, 893
F.2d 1458 (3d Cir. 1990) (no relief for pro se litigant who filed
appeal with wrong office on attorney’s advice); Pomper v.
Thompson, 836 F.2d 131 (3d Cir. 1987) (relief denied where
petitioner filed within time instructed by agency but later than
the law allowed).
 - 16 -

language is ambiguous, applying the plain meaning would lead to

an absurd result, or (maybe) where there is clear evidence of

contrary legislative intent. In re Int’l Admin. Servs., Inc.,

408 F.3d at 707.

We begin with the Code:

SEC. 6015(e). Petition for Review by Tax Court.--

(1) In general.--In the case of * * * an
individual who requests equitable relief under
subsection (f)--

(A) In general.--In addition to any other
remedy provided by law, the individual may
petition the Tax Court (and the Tax Court shall
have jurisdiction) to determine the appropriate
relief available to the individual under this
section if such petition is filed--

(i) at any time after the earlier of–

(I) the date the Secretary mails,
by certified or registered mail to the
taxpayer's last known address, notice of
the Secretary's final determination of
relief available to the individual, or

* * * * * * *

(ii) not later than the close of the
90th day after the date described in clause
(i)(I). [Emphasis added.]

The most important point to notice is that the Code here

actually uses the word “jurisdiction”--giving us “jurisdiction”

if someone files her petition within the 90-day time limit.

Statutes granting a court “jurisdiction” if a case is filed by a
 - 17 -

stated deadline look more like jurisdictional time limits.

Zipes, 455 U.S. at 393-94.

We ourselves have already analyzed a very similar question

about section 6330’s 30-day deadline for filing petitions to

challenge the Commissioner’s determinations on how to collect

unpaid taxes. In Boyd v. Commissioner, 124 T.C. 296, 303 (2005),

affd. 451 F.3d 8 (1st Cir. 2006), we affirmed our decision in

Jones v. Commissioner, T.C. Memo. 2003-29, holding that section

6330(d)(1) is a jurisdictional deadline that can’t be extended.

And that section has language quite similar to section

6015(e)(1)(A)’s:

SEC. 6330(d). Proceeding After Hearing.--

(1) Judicial review of determination.--The person
may, within 30 days of a determination under this
section, appeal such determination to the Tax Court
(and the Tax Court shall have jurisdiction with respect
to such matter). [Emphasis added.]

Courts also commonly distinguish statutes of limitation from

jurisdictional deadlines by the complexity of a statute’s

language. Brockamp, 519 U.S. at 350-51. Finding that section

6511--a statute that on its face doesn’t contain the word

“jurisdiction” or other jurisdictional terms–-did not allow for

equitable tolling, the Supreme Court stated that

[o]rdinarily limitations statutes use fairly
simple language, which one can often plausibly read as
containing an implied “equitable tolling” exception. *
* * But § 6511 uses language that is not simple. It
sets forth its limitations in a highly detailed
 - 18 -

technical manner, that, linguistically speaking, cannot
easily be read as containing implicit exceptions * * *.

Id. at 350 (citation omitted). The Court also pointed out that

section 6511 “sets forth explicit exceptions to its basic time

limits,” a list which doesn’t include equitable tolling. Id. at

351. The presence of such detailed statutory rules is a sign

that “Congress did not intend courts to read other unmentioned,

open-ended, ‘equitable’ exceptions into the statute that it

wrote.” Id. at 352.

Statutes of limitation, on the other hand, have no such

jurisdictional identifiers, and courts construe them with a

presumption that they were written against a backdrop of legal

default rules and doctrines that they can legitimately apply when

the statute is silent and the facts of a particular case warrant

it.15 And one of these default rules, as the Supreme Court

recently clarified, is a rebuttable presumption in favor of

equitable tolling’s availability in suits brought by a private

15
See Young, 535 U.S. at 49-50, 52 (holding that an express
equitable tolling provision is not needed for the doctrine’s
availability in a bankruptcy statute); Albillo-De Leon, 410 F.3d
at 1098 (“the absence of any language clearly proclaiming the
filing deadline as ‘jurisdictional’ suggests that the statute is
not jurisdictional but a statute of limitations”); cf. Doe v.
KPMG, LLP, 398 F.3d 686, 689 (5th Cir. 2005) (“Because Congress
prefers to provide explicit tolling exceptions to the limitations
periods contained in federal tax law, by implication, it does not
intend courts to invoke equitable tolling to alter the plain text
of the statutes at issue”).
 - 19 -

party against the Government. John R. Sand & Gravel Co., 128

S. Ct. at 755-56.

For example, the Supreme Court has ruled that the

limitations period--found at 42 U.S.C. sec. 405(g) -- for those

appealing a denial of Social Security benefits is a statute of

limitations and courts may use equitable tolling when

appropriate. Bowen v. City of New York, 476 U.S. 467, 480

(1986). But the statute being construed there did not use any

jurisdictional terms, explicitly provided discretion to the

Commissioner of Social Security to extend the 60-day filing

deadline, and lacked any other indication that Congress wouldn’t

want courts to apply equitable-tolling doctrine. Id.; see

Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007).

We think that section 6015 is more like section 6511 or 6330

than the statute at issue in Bowen--as we’ve noted, section 6015

uses the word “jurisdiction” and it’s part of a system of

detailed rules on requests for relief and appeals from their

denial. There are also no explicit reservations of discretion to

extend the deadline. We conclude that this is not a “close

case,” and hold instead that section 6015(e)(1)(A)’s 90-day limit

is jurisdictional and therefore doesn’t allow for equitable

tolling, even though such a result may be very harsh for Pollock.

We need not comment on whether the underlying circumstances of

Pollock’s situation merit equitable tolling--“Tax law, after all,
 - 20 -

is not normally characterized by case-specific exceptions

reflecting individualized equities.” Brockamp, 519 U.S. at 352.

III. Liberal Construction

Having decided that section 6015(e)’s time limit is

jurisdictional makes Pollock’s position even more difficult. But

she correctly points out that, at the time her petition was due,

she actually had no forum in which to bring her claim, meaning

that the Commissioner is arguing not just that she failed to file

a timely petition, but that she failed to file a timely petition

in a court that at the time was without jurisdiction to hear her

case. By the time Congress amended the Code to give us

jurisdiction, her 90-day window had already closed.

This leads us to an important question--how flexible we can

be in construing section 6015 to provide her with a forum for her

case under these unusual circumstances?

“[W]e lack general equitable powers to expand our

statutorily prescribed jurisdiction.” Woods v. Commissioner, 92

T.C. 776, 785 (1989). And though we can apply equitable

principles to decide a case over which we do have jurisdiction,16

our inability to apply those principles to expand our

jurisdiction to cases where we otherwise wouldn’t have it is

16
For example, we can apply equitable principles such as
waiver, duty of consistency, estoppel, substantial compliance,
abuse of discretion, laches, and the tax-benefit rule. Woods, 92
T.C. at 784-85.
 - 21 -

really nothing more than a fancy way of saying we can’t override

statutory limits on our power. Flight Attendants Against UAL

Offset v. Commissioner, 165 F.3d 572, 578 (7th Cir. 1999). We

are similarly reticent in our refusal to create deductions,

credits, or exclusions out of a desire for a fairer outcome--we

understand that this would be legislation, and legislation

belongs exclusively to Congress. Paxman v. Commissioner, 50 T.C.

567, 576-77 (1968), affd. 414 F.2d 265 (10th Cir. 1969); Farmer

v. Commissioner, T.C. Memo. 1994-342.

We have nevertheless decided cases involving the limitations

period found in section 6213(a) (establishing our deficiency

jurisdiction) that, at first glance, may seem to speak to the

issues in this case--choosing to give the language of that

section a “broad, practical construction rather than a narrow,

technical meaning.” Lewy v. Commissioner, 68 T.C. 779, 781

(1977). “Where the statute is capable of two interpretations, we

are inclined to adopt a construction which will permit us to

retain jurisdiction without doing violence to the statutory

language.” Id.; see also Loyd v. Commissioner, T.C. Memo. 1984-

172.

Section 6213(a) has two requirements that must be met:

First, the IRS must issue a valid notice of deficiency, and

second, the taxpayer must timely file a petition with our Court.

Frieling v. Commissioner, 81 T.C. 42, 46 (1983). The
 - 22 -

Commissioner’s mailing of the notice of deficiency starts a 90-

day (or 150-day, if the notice is addressed to a person outside

the United States) period in which the taxpayer may petition our

Court for redetermination. Sec. 6213(a). The IRS may send the

notice to the taxpayer’s last known address, and as long as it

does, the notice is valid whether or not he receives it. Lifter

v. Commissioner, 59 T.C. 818, 820-21 (1973). If the IRS uses the

wrong address, the notice is still valid as long as the taxpayer

receives it in time to file a timely petition. Pugsley v.

Commissioner, 749 F.2d 691, 692-93 (11th Cir. 1985); Frieling, 81

T.C. at 53. This has led to a number of cases in which we have

had to decide how long is enough time for a taxpayer to file with

this Court.17 But even this flexibility doesn’t lead to the

tolling Pollock seeks. Instead, the result of a decision in

favor of the taxpayer in such a case is that the notice of

deficiency itself is invalid.18 See, e.g., Sicker v.

Commissioner, 815 F.2d 1400, 1401 (11th Cir. 1987). But see Gaw

17
See, e.g., Lindstrom v. Commissioner, T.C. Memo. 2007-
243; Fileff v. Commissioner, T.C. Memo. 1990-452; Loftin v.
Commissioner, T.C. Memo. 1986-322.
18
Cf. Kuykendall v. Commissioner, 129 T.C. 77 (2007).
Since the taxpayers received their notice of deficiency with only
12 days remaining before the jurisdictional time limit expired,
we held that they could contest their underlying tax liability at
their collection due process hearing because section
6330(c)(2)(B) contemplates actual receipt of the notice of
deficiency by the taxpayer. See sec. 301.6330-1(e)(3), Q&A-E2,
Proced. & Admin. Regs.
 - 23 -

v. Commissioner, 45 F.3d 461, 468 (D.C. Cir. 1995) (failure to

address notice to last known address tolls 90-day or 150-day

period until actual receipt), revg. T.C. Memo. 1993-379.

Within this same line of cases, we have had to decide how

strictly to apply the language of section 6213(e) allowing 150

days to file a petition “if the notice is addressed to a person

outside the United States.” In Lewy, the taxpayer was a resident

of France with an office and an apartment in New York City.

Although the IRS sent the notice to his New York address, the

taxpayer left for France the next day and didn’t receive the

notice until day 81. We held that he was a “person outside the

United States” and so had 150 days from the time of mailing to

file with this Court--even though he was actually in the United

States on the day the Commissioner mailed the notice of

deficiency--because “petitioner’s absence resulted as a natural

and probable consequence in his delayed receipt of the notice.”

Lewy, 68 T.C. at 784.

We can find no such wiggle room in section 6015(e) as

applied to this case. Its language is clear and is not capable

of more than one interpretation. Pollock is right that the 2006

amendment of section 6015(f) gave us jurisdiction over claims

arising from liability remaining unpaid as of the amendment’s

effective date. But the Commissioner is correct that the

unamended language of 6015(e) limits our new jurisdiction to
 - 24 -

claims filed within 90 days of the IRS’s issuing its notice of

determination.

IV. The Effect of the Effective Date

Pollock makes one more sally at the Commissioner’s defenses.

Congress’s amendment to section 6015(e) was effective with

respect to liability for taxes “arising or remaining unpaid on or

after” December 20, 2006. Pollock asks us whether Congress

really intended to create a cause of action only to

simultaneously foreclose the opportunity to sue for some of those

potential litigants. Could it really be that the 90-day

limitations period in section 6015(e) became effective for her

only after it had already expired?

We agree that the language of the amendment’s effective date

tells us that the statute has some retroactive reach.19 But how

much? There are other possible cases falling into the same

jurisdictional gap as Pollock’s claim--cases where the IRS issued

a notice of determination but the taxpayer never petitioned the

19
In Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994)
(quoting Hallowell v. Commons, 239 U.S. 306, 308 (1916)), the
Supreme Court noted:

We have regularly applied intervening statutes
conferring or ousting jurisdiction, whether or not
jurisdiction lay when the underlying conduct occurred
or when the suit was filed. * * * Application of a new
jurisdictional rule usually “takes away no substantive
right but simply changes the tribunal that is to hear
the case”. * * *
 - 25 -

Court, cases that we dismissed for lack of jurisdiction after

Billings but before the amendment (at least those where we didn’t

vacate our order of dismissal), or cases where we denied relief

on the merits after Ewing I but before Billings. In all of these

situations, it’s conceivable that the requesting spouse’s tax

liability remained unpaid as of the TRHCA’s effective date.

There is a reasonable amount of caselaw construing statutes

that extinguish live claims. Looking to general principles of

statute-of-limitations jurisprudence, the Third Circuit recently

held that “where a shortened limitations period would bar pre-

accrued claims, other circuits have provided claimants the

shorter of: (1) the pre-shortened limitation period, commencing

at the time the action accrued; or (2) the shortened limitation

period, commencing from the date the statute became effective.”

Kolkevich v. Attorney General, 501 F.3d 323, 337 (3d Cir. 2007);

see also Ruiz-Martinez v. Mukasey, 516 F.3d 102, 117 (2d Cir.

2008). So even if we were to hold that a grace period was

appropriate, these cases suggest there would still be a limit of

no more than 90 days after the amendment’s enactment. Pollock

didn’t raise an innocent-spouse defense until May 2007.

And it’s important for us to note that these cases arise

from situations where a court undoubtedly had jurisdiction before

Congress changed the law by imposing a new or shorter deadline.

Texaco, Inc. v. Short, 454 U.S. 516, 529 (1982) (taking
 - 26 -

property); Ruiz-Martinez, 516 F.3d at 115 (habeas corpus);

Kolkevich, 501 F.3d at 335-36 (habeas corpus); Ross v. Artuz, 150

F.3d 97, 100 (2d Cir. 1998) (habeas corpus).

Pollock’s case is different: We had no jurisdiction to hear

section 6015(f) nondeficiency stand-alone cases before the

amendment, so the amendment to section 6015 was Congress creating

jurisdiction for nondeficiency stand-alone claims where there had

been none before. It’s within Congress’s power to create a cause

of action but limit those who may petition their cause. And we

think that’s what happened here--although Pollock falls within

the large set of potential petitioners whose tax liability

remained unpaid, she falls outside the smaller subset of

potential petitioners whose tax liability remained unpaid and to

whom the Commissioner had either mailed a notice of determination

within the 90 days preceding the amendment or who had filed

undismissed petitions with us when we had no jurisdiction. We

recognize this to be an odd result, but it follows from

Congress’s failure to tinker with the 90-day deadline when it

amended the Code to give us jurisdiction. Congress simply

provided people in Pollock’s situation with no window of

opportunity to petition our Court and no grace period to do so.20

20
Certainly Congress could have decided not to act at all,
thereby providing no forum under section 6015(e) for section
6015(f) relief. See Graham v. Goodcell, 282 U.S. 409, 431-32
(1931) (“the broad discretion of the Congress in the exercise of
(continued...)
 - 27 -

We therefore have no jurisdiction to hear her claim, and21

An order of dismissal for

lack of jurisdiction will be

entered.

20
(...continued)
its constitutional power as to taxation * * * necessarily extends
to the whole field of supervision and control of the processes of
enforcement. * * * In its selection the Congress dealt with an
appropriate class and was not bound to include others.”).
21
Perhaps not all hope is lost--the Commissioner conceded
at oral argument, that if she filed a refund action in District
Court after her home was seized and sold, Pollock could try to
make her case that she is an innocent spouse.