UNITED STATES TAX COURT
[Petitioner name(s)], Petitioner(s), v. Commissioner of Internal Revenue, Respondent. Docket No. [Number, if assigned]
STATEMENT IN SUPPORT OF EQUITABLE TOLLING OF THE PERIOD FOR FILING THE PETITION [Delete one: (filed with the petition) / (filed in response to Respondent's Motion to Dismiss for Lack of Jurisdiction)]
Petitioner states as follows:
1. The notice and the deadline
[VARIANT A, CDP case: On [date] the IRS Independent Office of Appeals issued a Notice of Determination Concerning Collection Actions under IRC 6320 and/or 6330 for [type of tax] for [periods]. Under IRC 6330(d)(1) the period for petitioning this Court ended on [date].]
[VARIANT B, deficiency case: On [date] respondent mailed a notice of deficiency for [tax year(s)] by certified mail to petitioner's last known address at [address]. The notice states that the last day to file a petition is [date]. Under IRC 6213(a) the period ended on [date] (90 days, or 150 days because the notice was addressed to a person outside the United States).]
A copy of the notice is attached to the petition as required by Rule [34(b)(2) / 331(b)(8)].
2. When the petition was mailed and filed
- Method of filing: [electronically through DAWSON at [time, eastern] on [date] / by United States mail, [certified / registered] no. [number], deposited on [date] / by [designated private delivery service], shipment no. [number], on [date]].
- Postmark or delivery service date: [Date shown on the postmark, certified mail receipt or shipping record; attach it as Exhibit 1].
- Date received by the Court: [Date].
- Days late, measured from the last day to file: [Number].
[If any fact above makes the petition timely, say so first: Petitioner contends the petition was timely under IRC 7502(a) because it was postmarked on [date], within the period, and was properly addressed to the Court with postage prepaid; equitable tolling is argued in the alternative.]
3. Why the deadline may be tolled
[VARIANT A: In Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), the Supreme Court held that the 30-day period in IRC 6330(d)(1) is a nonjurisdictional deadline subject to equitable tolling. Petitioner asks the Court to toll the period on the facts below.]
[VARIANT B: Petitioner's legal residence (or principal place of business) at the time the petition was filed is [city, state], so under IRC 7482(b)(1) an appeal in this case would lie to the Court of Appeals for the [Second / Third] Circuit. That court has held that the IRC 6213(a) deadline is a nonjurisdictional claim-processing rule subject to equitable tolling: Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023) / Buller v. Commissioner, No. 24-1557 (2d Cir. Aug. 14, 2025). Petitioner acknowledges Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022), and asks the Court to apply the law of the circuit of appeal.]
[VARIANT B, other circuits: Petitioner acknowledges that this Court held in Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022), that the IRC 6213(a) deadline is jurisdictional, and that the Court of Appeals for the [number] Circuit has not decided the question. Petitioner preserves the argument that the deadline is a nonjurisdictional claim-processing rule for the reasons stated in Culp and Buller, and asks the Court to toll it on the facts below.]
4. Diligence
Petitioner pursued the right to petition this Court diligently. [State dated facts within the petitioner's control, for example: the petitioner received the notice on [date]; engaged a representative on [date]; prepared the petition on [date]; delivered it to [carrier or post office] on [date]; checked DAWSON for confirmation on [date]; called the Court's clerk on [date] when no confirmation arrived. Avoid conclusions such as 'petitioner acted diligently' without the dates.]
5. The extraordinary circumstance
The following circumstance, which was beyond petitioner’s control, prevented filing within the period: [Describe with dates and specifics, for example: petitioner was hospitalized from [date] to [date] (records attached); the notice was mailed to [address] after the IRS had been notified of the new address on Form 8822 filed [date]; the DAWSON filing attempt on [date] at [time] failed for reasons recorded in the attached error message and the Court's system notice; the post office returned the properly addressed envelope on [date] for reasons noted on the cover. Do not rely on confusion about the law, pro se status, a representative's calendaring error, or a short miss on its own.]
Petitioner filed the petition [on [date], the first business day after the circumstance ended / within [N] days after the circumstance ended].
6. Documents attached
- Exhibit 1: envelope, certified or registered mail receipt, private delivery service record, or DAWSON confirmation or error message.
- Exhibit 2: [USPS tracking history / proof of the date the notice was actually received].
- Exhibit 3: [Medical records, Form 8822 and proof of mailing, correspondence with the IRS or the Court, declarations of witnesses].
- Exhibit 4: a declaration of petitioner under penalties of perjury stating the facts in sections 2, 4 and 5.
7. Request
Petitioner asks the Court to find that the period for filing the petition was equitably tolled from [Date] to [Date], to treat the petition as timely filed, [and to deny Respondent's Motion to Dismiss for Lack of Jurisdiction]. If the Court requires an evidentiary hearing on the tolling facts, petitioner requests one.
Dated: [Date]
[Signature of petitioner or counsel]
[Name, mailing address, email, telephone]
Tax Court Bar No. [Number, if counsel]
When this statement helps and when it does not
The statement is for a petition filed after the statutory deadline that no timing rule saves. Check those rules first. IRC 7502(a)(1) deems the postmark date the delivery date for a petition that arrives late, if the postmark is within the period and the petition was properly addressed with postage prepaid; registered mail makes the registration date the postmark date (IRC 7502(c)). Tax Court Rule 22(d) says an electronically filed paper “will be considered timely filed if it is electronically filed at or before 11:59 p.m., eastern time, on the last day of the applicable period for filing.” And IRC 6213(a) protects the printed date: “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.” The petition deadline calculator computes the last day. If any of these applies, plead timeliness first and tolling in the alternative, as section 2 does.
The statement extends nothing. File the petition immediately and treat tolling as a fallback; the Form 12153 and notice of deficiency pages say the same.
The two deadlines and the split
CDP petitions (Variant A). IRC 6330(d)(1) gives 30 days after a determination. In Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), the Supreme Court held that this limit “is an ordinary, nonjurisdictional deadline subject to equitable tolling,” reasoning that “nonjurisdictional limitations periods are presumptively subject to equitable tolling.” It did not decide whether Boechler deserved tolling; that went back to the lower courts on the facts, which is why the statement is built around facts. See CDP hearings.
Deficiency petitions (Variant B). IRC 6213(a) allows 90 days (150 for a notice addressed outside the United States) after mailing. In Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022), the Tax Court held that “timely filing of a deficiency petition is a jurisdictional requirement.” Two circuits disagree. The Third Circuit in Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023), wrote that “Without a clear statement, courts will treat a filing period to be a claims-processing rule that is presumptively subject to equitable tolling,” and remanded for the Tax Court to decide whether the taxpayers were entitled to it. The Second Circuit followed in Buller v. Commissioner, No. 24-1557 (2d Cir. Aug. 14, 2025): “we hold that section 6213(a) is a nonjurisdictional, claim-processing rule,” subject to tolling, and likewise remanded on the facts.
The Tax Court follows the law of the circuit to which the case is appealable, so the statement must identify it. IRC 7482(b)(1) fixes venue by an individual’s legal residence, or a corporation’s principal place of business, when the petition is filed; the venue and circuit lookup maps states to circuits. In the Second or Third Circuit, Variant B asks the Court to apply Culp or Buller. Elsewhere the Tax Court will apply Hallmark, and the statement can only preserve the argument for appeal; the template has a paragraph for that. See Tax Court petitions.
The standard. Holland v. Florida, 560 U.S. 631 (2010), states the federal test: a litigant is entitled to tolling only on showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way,” and the diligence required is “reasonable diligence.” Culp applied the same test to section 6213(a). Sections 4 and 5 of the template track the two elements.
What each section does
| Section | Purpose | Source |
|---|---|---|
| 1. Notice and deadline | Establishes the date the period began and the last day to file; a wrong IRS date on the notice is itself a timeliness argument | IRC 6213(a), 6330(d)(1) |
| 2. Mailing and filing dates | Gives the postmark, delivery service or DAWSON facts so the Court can first test IRC 7502 and Rule 22 | IRC 7502; Rule 22(c), (d) |
| 3. Legal basis | Names the right case for the deadline and the circuit; concedes Hallmark where it controls instead of ignoring it | Boechler; Culp; Buller; Hallmark; IRC 7482(b) |
| 4. Diligence | Dated steps the petitioner took; conclusory statements do not meet the test | Holland |
| 5. Extraordinary circumstance | The event outside the petitioner's control, with dates and proof, and how quickly the petition followed once it ended | Holland |
| 6. Documents | The envelope or confirmation, proof of receipt date, records of the circumstance, and a declaration | Rule 34(b)(2); Rule 331(b)(8) |
| 7. Request | States the tolling period and the relief; asks for a hearing if facts are disputed | Rule 53 |
The petition itself must still meet Rule 34(b) or Rule 331(b) and attach the notice. Rule 34(b)(1)(G) warns that “Any issue not raised in the assignments of error will be deemed conceded,” so plead the merits in the petition while timeliness is contested.
What Appeals does with a tolling claim
The IRS has absorbed Boechler into its CDP procedures, and the same facts are often raised first there. IRM 5.1.9.3.9 lists, among the equivalent hearing situations where the taxpayer can still go to court, the case where “the taxpayer claims the deadline should be extended due to equitable tolling.” IRM 8.22.5.3.2 gives settlement officers the standard for a late hearing request: “Equitable tolling pauses the running of, or "tolls," a statutory period in cases where taxpayers pursued their rights diligently, but some extraordinary circumstance that was beyond their control prevented compliance with the statutory period.” It adds that “Taxpayers are not required to specify the term "equitable tolling."” and lists reasons courts have rejected, including that the person “was represented by an attorney who made a mistake.” Those rules govern the hearing request deadline, not the petition, but they preview the arguments Counsel will make. See equivalent hearings for the one-year window, which the same IRM section treats as tollable.
How and where to file it
- File the petition first, by DAWSON or by mail to the Court in Washington, D.C. (Rule 22(a)), with the $60 fee (Rule 20(d)) and the Form 4 statement of taxpayer identification number (Rule 20(b)).
- Attach the statement to the petition or file it immediately after. If Counsel has already moved to dismiss, file it as the response within the time the Court's order allows.
- Attach the exhibits and a declaration under penalties of perjury for every fact not shown by a document, and keep the envelope, receipts and screen captures.
Mistakes
- Arguing tolling when IRC 7502 makes the petition timely. A timely postmark ends the inquiry.
- Omitting the circuit. In a deficiency case the result turns on IRC 7482(b).
- Conclusory diligence. Give dates for each step; the IRM rejects assertions of diligence without specific facts, and courts do the same.
- Relying on a representative’s calendaring error. Holland left room for egregious misconduct, but ordinary negligence is routinely refused.
- Waiting to file until the facts are assembled. Each extra day weakens the diligence showing.
Questions practitioners ask
Does Boechler apply to a late deficiency petition?
Not by itself. Boechler construed IRC 6330(d)(1). For IRC 6213(a) the Tax Court holds in Hallmark that the deadline is jurisdictional, while the Third Circuit (Culp) and Second Circuit (Buller) hold it is not, and the Tax Court applies the circuit's law where the circuit has spoken.
How late is too late?
There is no fixed limit. The test is diligence and an extraordinary circumstance, and the petition should follow as soon as the obstacle ends. A short miss alone does not qualify; IRM 8.22.5.3.2 uses the example of a request mailed one day late.
Can the IRS and the taxpayer agree to extend the petition period?
No. The statute sets it, and Publication 5 says the IRS and the Court cannot change it.
What if the 90th day fell on a weekend?
IRC 6213(a) does not count a Saturday, Sunday or District of Columbia legal holiday as the last day, so the period runs to the next business day. Check this before conceding the petition was late.