New Thinking About Jurisdictional Time Periods in the Tax Code
Forthcoming: 73 Tax Lawyer --- (2019)
77 Pages Posted: 3 Feb 2019 Last revised: 18 Apr 2019
Date Written: January 21, 2019
Tax law tends to be insular. This article addresses one area of insularity in tax and seeks to connect it to broader jurisprudential currents. It addresses the topic of which statutory periods of limitation in the Tax Code are properly viewed as jurisdictional restrictions on the Tax Court.
This topic is extraordinarily timely. The recent 35-day shutdown of the federal government forced the Tax Court to close its doors. For reasons I explained in a series of posts on Procedurally Taxing, this closure is very likely to generate considerable litigation about the jurisdictional nature of Tax Code limitation periods. By organizing the Supreme Court case law into a workable typology this article aims to help practically resolve the upcoming disputes and aims to advance the thinking about what constitutes a jurisdictional time period.
The paper first reviews the Supreme Court’s new thinking about jurisdictional time periods, explains the Court’s enthusiastic 20-year campaign to distinguish between time limits that are jurisdictional and time limits that it calls mere “claims-processing rules.” The paper organizes the Supreme Court’s new thinking into an indeterminate four-factor test.
The Supreme Court's new thinking has not reached the Tax Court or Circuit Courts reviewing statutory time periods in the Tax Code. The lower courts have followed old precedent without reconsidering that precedent in light of the new thinking.
This paper considers how the new thinking should apply to each of four important time periods in the Tax Code. Application of the new thinking turns out to be surprisingly straightforward, and contrary to existing lower court case law. The paper concludes that, for three of the four time periods considered, the new thinking leads to different conclusions from the old. As to the remaining time period, however, application of the new thinking properly types it as jurisdictional.
Keywords: jurisdiction, time periods, jurisdictional, limitation periods, statutes of limitations, sovereign immunity, subject matter jurisdiction
JEL Classification: K10, K34, K40, K41
Suggested Citation: Suggested Citation