When the Tax Court has jurisdiction
The IRM states the court's purpose: “Congress created the Tax Court to provide a judicial forum in which affected persons could dispute tax deficiencies determined by the Commissioner of Internal Revenue (IRS Commissioner) prior to payment of the disputed amounts.” (IRM 8.4.1.4). In a deficiency case, jurisdiction depends on a notice of deficiency under IRC 6212 and a timely petition (Tax Court Rule 13(a)). The notice is sent by certified or registered mail; see the notice of deficiency, Letter 3219 and CP3219A.
The court also hears other cases on specific grants of jurisdiction, each with its own notice: CDP determinations (CDP hearings), innocent spouse determinations, worker classification, interest abatement, BBA partnership adjustments (BBA cases), passport certifications and others (IRM 8.4.1.3 and 8.4.1.4). This page focuses on deficiency cases.
The petition deadline
Under IRC 6213(a), the petition must be filed within 90 days after the notice is mailed, or 150 days if the notice is addressed to a person outside the United States, not counting a Saturday, Sunday or District of Columbia legal holiday as the last day. The notice shows the last day, and the statute protects reliance on it: “Any petition filed with the Tax Court on or before the last date specified for filing such petition by the Secretary in the notice of deficiency shall be treated as timely filed.”
Publication 5 warns about the common trap: “The law sets the time to file your petition; the IRS or the U.S. Tax Court cannot change this time period.” and “You have only the timeframe specified to petition the court, even if you continue to talk to IRS examiners or Appeals.” Settlement talks, audit reconsideration requests and calls to the examiner do not stop the clock. If the 90 days pass, the deficiency is assessed and billed (IRC 6213(c)), and the remaining routes are paying and suing for a refund or seeking audit reconsideration.
Whether a late petition can ever be saved now depends on the circuit. The Tax Court holds the deadline jurisdictional (Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022)), while the Third Circuit (Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023)) and the Second Circuit (Buller v. Commissioner, No. 24-1557 (2d Cir. 2025)) treat it as a claim-processing rule open to equitable tolling. The decisions and what to plead are covered on the notice of deficiency; the practical rule is unchanged: file within the 90 days.
A notice of deficiency can sometimes be rescinded with the taxpayer's consent, for example where the taxpayer asks for an Appeals conference to negotiate, but only if Appeals first decides the case is susceptible to agreement; once rescinded, the notice cannot support a petition (Pub 556, citing Rev. Proc. 98-54). Do not count on rescission to cure a missed deadline.
What the petition must contain
Tax Court Rule 34(b) requires a deficiency petition to be substantially in the form of the court's Form 1 and to contain:
| Rule 34(b)(1) | Content |
|---|---|
| (A), (B) | Petitioner's name and state of legal residence (individual), or principal place of business or office (other petitioners) |
| (C) | Mailing address and the IRS office where the return was filed |
| (D) | Date of the notice and the city and state of the IRS office that issued it |
| (E) | Reason for any difference between the petitioner's name and the name on the notice |
| (F) | Amount of the deficiency, nature of the tax, the years, and the approximate amount in dispute if only part is contested |
| (G) | Separately lettered, clear and concise assignments of each error, including those on which the Commissioner bears the burden |
| (H) | Separately lettered statements of the facts supporting each assignment of error |
| (J), (K) | The relief sought; signature, mailing address, email and phone of each petitioner or counsel, and counsel's Tax Court bar number |
A copy of the notice must be attached (Rule 34(b)(2)). Rule 34(b)(1)(G) carries the most important warning: “Any issue not raised in the assignments of error will be deemed conceded.” Assign error to every adjustment and penalty in dispute, including penalty issues on which the IRS has the burden of production. The protest, if one was filed, is a good starting outline (formal protest). Spouses who both want to contest a joint notice must each satisfy the rule, by joint or separate petition (Rule 34(b)(3)).
Filing, fee and place of trial
“A fee of $60 must be paid at the time of filing a petition.” The fee may be waived on an affidavit or declaration with specific financial information (Tax Court Rule 20(d), rules as amended through August 2024). The petitioner must also submit a statement of taxpayer identification number on the court's Form 4 (Rule 20(b)), and a request for place of trial on Form 5 (Rule 140(a)); if none is filed, the Commissioner requests one with the answer. Corporate petitioners file a disclosure statement (Rule 20(c)). The court's mailing address is in Publication 5; the IRM refers to the court's DAWSON system for docket records.
The place of trial is a convenience choice; the law that will be applied is fixed by the circuit of appeal. Under IRC 7482(b)(1), a Tax Court decision is reviewed by the court of appeals for the circuit of an individual petitioner's legal residence, or a corporation's principal place of business or principal office, at the time the petition is filed. In Golsen v. Commissioner, 54 T.C. 742 (1970), the Tax Court held that it will follow a court of appeals decision “which is squarely in point where appeal from our decision lies to that Court of Appeals and to that court alone”, even where the Tax Court disagrees with it, so a favorable (or unfavorable) circuit precedent controls the case from the day the petition is filed. Check the circuit's law on each disputed issue before filing, state the residence or principal place of business accurately in the petition (Rule 34(b)(1)(A) and (B)), and raise any controlling circuit authority with Appeals and Counsel; Appeals applies the same Golsen rule when it weighs hazards (IRM 8.6.4.2.7; see hazards of litigation). Where the circuit has not spoken, the Tax Court applies its own precedent nationwide.
If the deficiency for each year is $50,000 or less, the petitioner may elect the small tax case procedure in the petition. That choice has consequences for appeal rights; see the S case procedure.
Who can represent the petitioner
Practice before the Tax Court is separate from practice before the IRS. An attorney is admitted on application with a certificate of good standing; a nonattorney, including a CPA or enrolled agent, must pass the court's written examination (Rule 200(a)). A petitioner may also appear without counsel. Once counsel enters an appearance, that attorney is counsel of record, needs no Form 2848 to deal with the IRS on the case, and Appeals communicates exclusively with counsel of record (IRM 8.4.1.9.1). Others working with counsel must be eligible to practice before the IRS and present authorization.
How a docketed case goes to Appeals
Counsel files the answer. Under Rev. Proc. 2016-22 sec. 3.01, Counsel then refers the docketed case to Appeals for settlement unless Appeals issued the notice of deficiency, or the taxpayer tells Counsel it wants to forgo Appeals. If Appeals issued the notice without fully considering an issue because the statute was about to run, Appeals can ask for the case back (sec. 3.02). Counsel does not refer issues designated for litigation, and may withhold others in limited circumstances, with notice to the taxpayer (sec. 3.03). Section 3 does not apply to certain case types, including CDP, interest abatement and some innocent spouse petitions (sec. 4.01).
| Step | Timing or rule (Rev. Proc. 2016-22) |
|---|---|
| Referral to Appeals | Within 30 calendar days after the case is at issue (Rule 38); delays need manager approval, and more than 90 extra days needs a Counsel executive and notice to the taxpayer (sec. 3.04) |
| Settlement authority | “Appeals has the sole authority to resolve a docketed case through settlement until the case is returned to Counsel.” (sec. 3.05) |
| Return to Counsel (regular cases over $50,000 a year) | When Appeals concludes the case is not susceptible to settlement, or within 10 days after it appears on a trial calendar, whichever is sooner (sec. 3.07) |
| Return to Counsel (S cases and regular cases of $50,000 or less a year) | Counsel may recall after six months; otherwise Appeals returns it at least 30 days before the calendar call (sec. 3.07) |
| Counsel at the conference | Counsel may ask to attend; Appeals may decline with manager approval. Counsel continues trial preparation either way (sec. 3.11) |
| New issues raised by the taxpayer | Appeals tells Counsel; Examination may develop facts first (sec. 3.13) |
If you did not appeal before the notice, Publication 5 says you will normally have an opportunity to attempt settlement with Appeals while waiting for trial, while the court schedules the case in the normal way. Appeals sends Letter 3808 (or 3808-A to counsel of record) to open the docketed conference (IRM 8.6.1.2). In docketed cases, the government can raise new issues in its pleadings and bears the burden of proof on them (IRM 8.6.1.7.2 and 8.6.1.7.3).
Trial preparation runs alongside. Rule 70(a)(1) says “the Court expects the parties to attempt to attain the objectives of discovery through informal consultation or communication before utilizing the discovery procedures provided in these Rules.”, and Rule 91(a) requires the parties to stipulate all matters that fairly should not be in dispute. Counsel will ask for informal conferences and stipulations even while Appeals is negotiating.
Settling a docketed case
The settlement standard is the same as before docketing: an unacceptable settlement in nondocketed status “does not become acceptable solely because it is reconsidered in docketed status” (IRM 8.4.1.11; hazards of litigation). A docketed case is not settled until the ATE has the petitioner's or counsel's verbal or written confirmation of the terms and agreement to sign a decision document; “I need to think about it” is not agreement. The ATE prepares settlement computations, and Appeals or Counsel prepares a stipulated decision. Under Rev. Proc. 2016-22 sec. 3.15, “By signing the proposed stipulated decision document and returning the document to the IRS, the taxpayer makes an offer to settle the case.” Counsel reviews it, signs for the Commissioner and files it.
What a petition does to the statute and refunds
- Assessment barred. No assessment or levy until the Tax Court decision is final (IRC 6213(a)).
- Statute suspended. The assessment and collection periods are suspended while the IRS is barred from assessing and, once the case is docketed, until the decision is final, plus 60 days (IRC 6503(a)). Publication 5 notes that docketed cases “do not have the statute of limitation concerns that non-docketed cases do.”
- Refund suit barred. Once a timely petition is filed, no refund suit for the same tax and year may be brought, except as to overpayments the Tax Court determines and a few other exceptions (IRC 6512(a)). Choose the forum before filing; see refund suits.
- Paying does not end the case. A payment after the notice is mailed may be assessed but does not deprive the court of jurisdiction (IRC 6213(b)(4)).
- Frivolous positions. Publication 5 cautions that the court can impose a penalty of up to $25,000 if a case is primarily for delay or the position is frivolous or groundless.
Questions practitioners ask
Does the 90-day period run from the date on the notice or the date it was received?
From mailing (IRC 6213(a)). A petition filed by the last date the IRS printed on the notice is treated as timely even if that date is wrong.
We are still talking to Appeals. Do we still have to file?
Yes. Publication 5: the time to petition is fixed even if the taxpayer continues to talk to examiners or Appeals. A docketed case usually goes to Appeals anyway under Rev. Proc. 2016-22.
Can a CPA or enrolled agent sign the petition as counsel?
Only if admitted to practice before the Tax Court, which for nonattorneys requires passing the court's written examination (Rule 200(a)(3)). The taxpayer can also file pro se.
Will the docketed case go to the same Appeals Officer who issued the notice?
If Appeals issued the notice, Counsel generally does not refer the case back to Appeals unless Appeals asked for its return because issues were not fully considered (Rev. Proc. 2016-22, secs. 3.01 and 3.02).
What happens if the petition misses an issue?
Rule 34(b)(1)(G) says any issue not raised in the assignments of error is deemed conceded. An amended petition may be possible under the court's rules; raise it with the court promptly.