Second Circuit Redefines the 90-Day Deficiency Deadline: I.R.C. § 6213(a) Deemed Non-Jurisdictional and Subject to Equitable Tolling

I. Introduction

In Buller v. Commissioner, No. 24-1557 (2d Cir. Aug. 14, 2025), the United States Court of Appeals for the Second Circuit confronted a seemingly routine late-filed Tax Court petition. What emerged is a significant doctrinal shift: the court held that the 90-day period for petitioning the Tax Court under Internal Revenue Code § 6213(a) is (i) a non-jurisdictional claim-processing rule and (ii) presumptively subject to equitable tolling.

Petitioners Mark Buller and Sarah Beatty received a notice of deficiency on August 22, 2022 but filed their Tax Court petition nine days past the statutory deadline. The Tax Court dismissed for lack of jurisdiction; the Second Circuit reversed, relying on recent Supreme Court jurisprudence tightening the definition of “jurisdiction.” The decision unsettles decades of lower-court authority, unlocks an equitable safety valve for late filers, and aligns deficiency practice with modern jurisdictional doctrine.

II. Summary of the Judgment

• The panel (Cabranes, Lohier & Sullivan, JJ.) unanimously held that § 6213(a)’s 90-day deadline regulates claim processing rather than the Tax Court’s adjudicatory power.
• Because it is non-jurisdictional, the deadline can be waived, forfeited, or equitably tolled if a taxpayer meets traditional tolling criteria.
• The case is remanded to the Tax Court to decide, on the merits, whether Petitioners qualify for equitable tolling.

III. Analysis

A. Precedents Cited

The opinion synthesizes a line of Supreme Court cases recalibrating the use of the word “jurisdiction”:

• Arbaugh v. Y&H Corp. (2006) – Introduced the “clear statement” rule: Congress must clearly label a requirement as jurisdictional.
• Henderson v. Shinseki (2011) – Warned against the “profligate” use of jurisdictional language and highlighted practical consequences.
• Sebelius v. Auburn Regional (2013) – Deadlines directed to parties, not courts, tend to be non-jurisdictional.
• United States v. Wong (2015) – “Most time bars are non-jurisdictional.”
• Boechler, P.C. v. Commissioner (2022) – § 6330(d)(1)’s 30-day deadline for CDP appeals is non-jurisdictional and equitably tollable.
• Wilkins v. United States (2023) – Prior bare references to jurisdiction lack precedential effect if unsupported by analysis.

The court also contrasts United States v. Brockamp (1997), which denied tolling for refund claims under § 6511 due to Congress’s unusually emphatic language and multiple explicit exceptions.

B. Legal Reasoning

1. High “Clear Statement” Threshold. Applying Arbaugh and progeny, the panel searched for an “unmistakable” textual link between § 6213(a) and the Tax Court’s jurisdiction. None exists: the provision merely says a taxpayer “may file” a petition within 90 days.
2. Location of the Language. The 90-day deadline appears in a sentence aimed at taxpayers, not courts. Sections that truly limit jurisdiction (e.g., § 6015(e)(1)(A)) explicitly condition jurisdiction on timely filing, a feature absent in § 6213(a).
3. Statutory Structure. A later sentence denying Tax Court authority to issue injunctions absent a timely petition actually underscores that Congress can speak clearly when it intends jurisdictional consequences, reinforcing the non-jurisdictional reading of the filing deadline itself.
4. Intervening Supreme Court Authority Supersedes Old Circuit Precedent. Earlier Second Circuit cases labelled § 6213(a) jurisdictional but offered no reasoning. Under Wilkins and circuit law on overruled precedent (Lotes), those decisions no longer control.
5. Equitable Tolling Presumption. Once non-jurisdictional, the deadline carries a presumption of equitable tolling unless Congress expressly disallows it—something § 6213(a) does not do. The panel found no “unusually emphatic” text or complex exceptions akin to § 6511 that would rebut the presumption.

C. Likely Impact

• Tax Litigation. Deficiency petitions filed after the 90-day period will now survive dismissal motions if taxpayers can show grounds for equitable tolling (e.g., extraordinary circumstances, diligence).
• Administrative Practice. The IRS may revise deficiency-notice letters and internal manuals to advise employees of potential tolling arguments.
• Judicial Resources. Tax Court judges must engage in fact-intensive tolling inquiries rather than issuing automatic jurisdictional dismissals, lengthening some proceedings but arguably improving fairness.
• Beyond Tax. The decision contributes to a broader trend limiting “jurisdictional” labels across federal procedural statutes, influencing courts that still rely on legacy precedent.
• Potential for Certiorari. A circuit split is emerging (e.g., the Eighth and Eleventh Circuits maintain the older view that § 6213(a) is jurisdictional). Supreme Court review is plausible to unify the rule nationwide.

IV. Complex Concepts Simplified

Jurisdiction

The power of a court to hear and decide a case at all. If a rule is jurisdictional, failure to comply means the court cannot act, no matter the equities.

Claim-Processing Rule

A procedural requirement controlling how and when parties must act. Courts may excuse non-compliance through waiver, forfeiture, or equitable doctrines.

Equitable Tolling

A judge-made doctrine allowing courts to pause (“toll”) a statutory deadline when extraordinary circumstances beyond a party’s control prevent timely filing, and the party acted with reasonable diligence.

Notice of Deficiency

The IRS’s formal assertion that a taxpayer owes additional tax, triggering the 90-day window to petition the Tax Court instead of first paying the tax.

§ 6213(a) vs. § 6511

Section 6213(a) governs pre-payment litigation in Tax Court; § 6511 governs post-payment refund claims. The latter remains non-tollable under Brockamp.

V. Conclusion

Buller v. Commissioner decisively modernizes deficiency practice within the Second Circuit. By divorcing the 90-day filing period from the Tax Court’s subject-matter jurisdiction and embracing equitable tolling, the court prioritizes taxpayer access to judicial review and harmonizes tax procedure with the Supreme Court’s contemporary “clear statement” approach. Unless and until the Supreme Court speaks, taxpayers in the Second Circuit—and potentially other circuits that adopt Buller’s reasoning—gain an important procedural safeguard when life events, disasters, or attorney error cause minor but consequential delays.