Equitable Tolling and the 90-day Tax Court Petition filing period -- The Post-Boechler Circuit Split
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Until recently, everyone understood that the United States Tax Court's 90-day deadline to petition for redetermination of a tax deficiency had no exceptions. Indeed, this rule is statutory -- Internal Revenue Code ("IRC") Section 6213(a) provides that a taxpayer may file a petition with the Tax Court within 90 days (or 150 days if the notice is addressed to a person outside the United States) of receiving a notice of deficiency. For decades, the 90-day deadline has been treated as jurisdictional, meaning that the Tax Court only has jurisdiction if a petition is filed within the 90-day statutory period and cannot take into account any extenuating circumstances resulting in a delay of filing the petition.
This all changed in 2022 when the U.S. Supreme Court opened the door to an alternative interpretation of IRC Section 6213(a). In Boechler, P.C. v. Commissioner, the Supreme Court held that the closely related and structurally similar 30-day Tax Court filing deadline to petition for review of a collection due process determination under IRC Section 6330(d)(1) was non-jurisdictional and subject to equitable tolling. See 596 U.S. 199 (2022). To be entitled to equitable tolling in that circumstance, a taxpayer must establish that it pursued its rights diligently and that extraordinary circumstances outside of its control prevented it from filing on time.
Although the holding in Boechler was expressly limited to IRC Section 6330(d)(1)'s 30-day deadline, its reasoning was broad enough to pave the way for a reinterpretation of IRC Section 6213(a). Boechler concluded that a filing deadline is jurisdictional only where Congress has given a "clear statement" tying the deadline itself to the court's jurisdictional grant. IRC Section 6213(a) does not include such a statement.
Indeed, the dominoes have already started to fall. The US Court of Appeals for the Second Circuit (Buller v. Comm'r, 160 F.4th 266 (2d Cir. 2025)), Third Circuit (Culp v. Comm'r, 75 F.4th 196 (3d Cir. 2023)), Sixth Circuit (Oquendo v. Comm'r, 148 F.4th 820 (6th Cir. 2025)), and Eighth Circuit (Maniktala v. Comm'r, 186 F.4th 548 (8th Cir. 2026)) all held that the 90-day deadline is non-jurisdictional and subject to equitable tolling. The First Circuit (Kyick Holdings LLC v. Comm'r, 188 F.4th 39 (1st Cir. 2026)) complicated the landscape, however, holding that the deadline is non-jurisdictional, but that it is nonetheless a mandatory claims-processing rule that is not subject to equitable tolling.
The issue remains pending and undecided in several more circuits: the Fourth Circuit (Laurenzano v. Comm'r, No. 25-2020), the Seventh Circuit (Lewis v. Comm'r, No. 26-1173), the Eighth Circuit on a second case (Dobson v. Comm'r, No. 26-2087), the Ninth Circuit (O'Neill v. Comm'r, No. 25-5250, and Dorondo v. Comm'r, No. 26-944), the Tenth Circuit (Dugan v. Comm'r, No. 26-9002), and the Eleventh Circuit (Reddick v. Comm'r, No. 26-10999).
Tax Court is the only venue that allows taxpayers to challenge IRS determinations before paying the proposed additional tax and is crucial for taxpayers who cannot afford or would prefer not to pay the tax and file suit for refund to challenge the IRS. This means that the circuit split has created different rights for different taxpayers, and that similarly-situated taxpayers may receive different outcomes depending on where they file their petition.
Congress has taken note of the circuit split. On September 30, 2026, the Senate passed an amended version of H.R. 5349 (the Taxpayer Assistance and Service (TAS) Act) which would, among other things, resolve the split legislatively by making the IRC Section 6213(a) deadline a non-jurisdictional claims-processing rule subject to equitable tolling. The bill is headed back to the House of Representatives to vote on the amended version of the bill.
Practice Point: With four circuits on record for non-jurisdictional treatment, a live split on the separate question of tolling, and multiple additional circuits considering the issue, the odds of Supreme Court review are high. Until either the courts or Congress settle the question, practitioners cannot assume or rely on equitable tolling to file a petition in Tax Court outside of the 90-day window. Even if equitable tolling were available, however, that does not mean that the Tax Court would automatically grant it. The 90-day period (150 days for a notice addressed outside the United States) remains the only safe deadline to ensure a timely filed Petition.
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