Big Apple Tompkins Realty LLC, Mojahed H. Bhutta, Partnership Representative, Petitioner(s)
Held: Whether an FPA is properly issued and mailed is determined in pari materia with our deficiency caselaw.
Held, further, R properly issued and mailed the FPA to PS and PR.
Held, further, the 90-day filing deadline in
Held, further, R’s Motion to Dismiss for Lack of Jurisdiction will be denied.
Mimi M. Wong and Sharmila J. Porter, for respondent.
OPINION
MARVEL, Judge: This matter is before the Court on respondent’s Motion to Dismiss for Lack of Jurisdiction (Motion) on the ground that the Petition was not filed within the time prescribed by section 6234(a)1 or 7502.
Background
The following facts are derived from the parties’ pleadings and Motion papers. They are stated solely for the purpose of resolving respondent’s Motion and not as findings of fact in this case. See Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff’d, 17 F.3d 965 (7th Cir. 1994).
Big Apple Tompkins Realty, LLC (Big Apple), is treated as a partnership for federal income tax purposes, and it is subject to the partnership audit and litigation procedures established by the Bipartisan Budget Act of 2015 (BBA), Pub. L. No. 114-74, § 1101, 129 Stat. 584, 625–38.2 Mr. Bhutta is Big Apple’s partnership
On November 13, 2023, Big Apple filed its Petition in this Court. The Petition arrived at the Court in an envelope bearing a printed U.S. Postal Service (USPS) stamp dated November 6, 2023, which partially obscures what is presumably a postmark beneath it. Big Apple attached to its Petition two copies of the Final Partnership Adjustment (FPA) dated August 11, 2022, one addressed to Big Apple and the other addressed to Mr. Bhutta. See §§ 6231(a)(3), 6234(a); Rules 255.1(b)(4), 255.2(b)(10). The FPA determined an imputed underpayment of $87,586 and a section 6662(d) accuracy-related penalty of $17,517 for tax year 2018.
Respondent filed his Answer on January 24, 2024. On March 8, 2024, respondent filed the Motion. The Motion alleges that respondent sent the two copies of the FPA via certified mail on August 11, 2022, to Big Apple’s and Mr. Bhutta’s last known addresses. See § 6231(a) (flush language). Attached to the Motion are USPS Form 3877, Firm Mailing Book for Accountable Mail, and two USPS Forms 3800, Certified Mail Receipt. The Motion requests that the Court dismiss this case for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by section 6234(a) or 7502.
On March 26, 2024, Big Apple filed its Objection to Motion to Dismiss for Lack of Jurisdiction (Objection). The Objection states that an FPA was not received by the Petitioner(s) or by the duly appointed Representative (Power of Attorney) until November, 2023. Petitioner(s) promptly filed a Petition with the United States Tax Court, as required. The Objection requests that the Motion . . . be denied and that the appeal be allowed to proceed.
On June 10, 2025, we ordered respondent to file a supplement to his Motion. We noted that respondent’s Motion referred to, but did not attach, certain USPS.com tracking information. We thus directed respondent to attach the tracking information or otherwise state whether it is in respondent’s possession. On June 27, 2025, respondent filed a First Supplement to Motion to Dismiss for Lack of Jurisdiction
Discussion
I. BBA Partnership Audit Procedures
In 2015 Congress enacted the BBA, which repealed TEFRA. BBA § 1101(a), (c)(1), 129 Stat. at 625; see supra note 2. The BBA created a new set of rules for making adjustments to partnership-related items for tax years beginning after December 31, 2017. See BBA § 1101(g)(1), 129 Stat. at 638. The BBA applies to any entity that is required to file a partnership return under section 6031(a) or that files a partnership return. §§ 6221(a), 6241(1), (8);
An audit under the new procedures begins with the Commissioner’s mailing the partnership and the partnership representative a notice that he has initiated an administrative proceeding. § 6231(a)(1). During the audit the partnership is the sole party to appear before the Commissioner and is represented by the partnership representative, who has the sole authority to act on behalf of the partnership. § 6223(a). All partners are bound by the actions of the partnership during these proceedings. § 6223(b). The Commissioner determines partnership adjustments, if any, at the partnership level, and any tax attributable to those adjustments is also assessed and collected at the partnership level. § 6221(a); cf. Goldberg v. Commissioner, 73 F.4th 537, 539 (7th Cir. 2023) (explaining that, under TEFRA, assessment and collection of tax occurred at the partner level), aff’g T.C. Memo. 2021-119. A partnership adjustment comprises any adjustment to a partnership-related item, which includes (1) any item or amount with respect to the partnership that is relevant in determining the income tax liability of any person and (2) a partner’s distributive share of any such item. § 6241(2).
To make those adjustments, the Commissioner must issue a Notice of Proposed Partnership Adjustment (NOPPA) within a specified time. §§ 6231(a)(2), (b)(1), 6235(a); see Mammoth Cave Prop., LLC v. Commissioner, No. 5401-24, 166 T.C., slip op. at 7 (Mar. 9, 2026); JM Assets, LP v. Commissioner, 165 T.C. 1, 10–11 (2025). The NOPPA includes the adjustments as well as the amount of any imputed underpayment due from the partnership. The imputed underpayment
The Commissioner generally must wait 270 days after issuing the NOPPA before issuing the FPA, see § 6231(b)(2), and then has 60 days to do so, see § 6235(a)(3).5 To make his final determination, the Commissioner must mail an FPA to the partnership and the partnership representative. § 6231(a)(3); Mammoth Cave, 166 T.C., slip op. at 7; JM Assets, LP, 165 T.C. at 9. From that FPA, the partnership may file a petition for judicial review with the Tax Court, the Court of Federal Claims, or the district court where the partnership’s principal place of business is located. § 6234(a). A petition must be filed within 90 days of the date the FPA is mailed. Id. An assessment of an imputed underpayment may be made after the close of that 90-day period or, if a petition is filed, upon final decision of the court. § 6232(b). If a petition
II. Jurisdiction
We are a court of limited jurisdiction and can exercise our jurisdiction only to the extent provided by Congress. See § 7442; Commissioner v. Zuch, 145 S. Ct. 1707, 1712 (2025) (citing Commissioner v. McCoy, 484 U.S. 3, 7 (1987)); Judge v. Commissioner, 88 T.C. 1175, 1180–81 (1987). Nonetheless, we have jurisdiction to determine whether we have jurisdiction. See Bongam v. Commissioner, 146 T.C. 52, 54 (2016); Kluger v. Commissioner, 83 T.C. 309, 314 (1984). Even when we lack jurisdiction, we have jurisdiction to determine the reason we lack jurisdiction. See Shelton v. Commissioner, 63 T.C. 193, 194–95 (1974). Where this Court’s jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke it. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff’d, 22 F. App’x 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, petitioner, as the party seeking to invoke our jurisdiction, must establish affirmatively all facts giving rise to our jurisdiction. David Dung Le, M.D., Inc., 114 T.C. at 270. The jurisdictional prerequisites to bring a section 6234 case in this Court are matters of first impression for us, and we now turn to them.
III. FPA Issuance and Timeliness of the Petition
We have held in the deficiency context that we have no jurisdiction unless a proper notice of deficiency has been mailed in accordance with the provisions of law, Heaberlin v. Commissioner, 34 T.C. 58, 59 (1960), and that a valid notice of deficiency has been issued if it is mailed to the taxpayer’s last known address by certified or
Similarly, under the BBA, an FPA provides notice of a final administrative determination for one or more tax years,8 Mammoth Cave, 166 T.C., slip op. at 10, and is a prerequisite to assessment, see § 6232(b)(1). The statutory text concerning the issuance and mailing of a notice of deficiency is very similar to the text concerning the issuance and mailing of an FPA.9 Compare § 6212(b)(1) ([N]otice of a deficiency in respect of [income, gift, or certain excise taxes] . . . if mailed to the
Big Apple has not disputed that the addresses shown for it and Mr. Bhutta on the two copies of the FPA are their respective last known addresses.10 We therefore need address only the evidence of mailing.
We have not previously considered which party should bear the burden of proving the date of mailing for an FPA. Generally, our caselaw provides that the Commissioner bears the burden of proving, by competent and persuasive evidence, the date that a notice was mailed. See Coleman v. Commissioner, 94 T.C. 82, 90 (1990); Magazine v. Commissioner, 89 T.C. 321, 324–27 (1987); August v. Commissioner, 54 T.C. 1535, 1537 (1970). We apply this standard in deficiency cases, lien or levy cases under section 6320 or 6330, and section 7436 employment status redetermination cases. See, e.g., Belagio Fine Jewelry, Inc. v. Commissioner, 162 T.C. 243, 248 (2024); Cataldo v. Commissioner, 60 T.C. 522, 524 (1973), aff’d per curiam, 499 F.2d 550 (2d Cir. 1974); Portwine v. Commissioner, T.C. Memo. 2015-29, at *10–11, aff’d, 668 F. App’x 838 (10th Cir. 2016).
We recently discussed the factors bearing on the allocation of burden of proof in Belagio Fine Jewelry, 162 T.C. at 246, and stated that
A properly completed USPS Form 3877 is direct evidence of the date and fact of mailing. Coleman, 94 T.C. at 90; Magazine, 89 T.C. at 324–27. Generally, if the Commissioner establishes that the notice existed and produces a properly completed USPS Form 3877 showing that the notice was sent to the taxpayer’s last known address, the Commissioner is entitled to a presumption of proper mailing. See Coleman, 94 T.C. at 91. A properly completed USPS Form 3877 is one completed in compliance with the Commissioner’s established procedure for mailing. See Lander v. Commissioner, 154 T.C. 104, 118 (2020). Even without the presumption of proper mailing, the Commissioner may prevail by providing otherwise sufficient evidence of mailing. See Coleman, 94 T.C. at 91–92; Portwine, T.C. Memo. 2015-29, at *11.
There is no dispute that the FPA exists because Big Apple attached two copies of it to its Petition. Respondent attached to his Motion a USPS Form 3877 related to the two copies of the FPA. The USPS Form 3877 includes a USPS date stamp for August 11, 2022, and lists tracking numbers for two articles of mail, along with Big Apple’s and Mr. Bhutta’s names and addresses, which match those shown on the two copies of the FPA. Nonetheless, the USPS Form 3877 is incomplete because it contains no indication of the number of articles received by USPS and is not signed or initialed by a USPS employee. See O’Rourke v. United States, 587 F.3d 537, 541 (2d Cir. 2009) (per curiam); O’Neill v. Commissioner, T.C. Memo. 2025-49, at *2–3; Bobbs v. Commissioner, T.C. Memo. 2005-272, 2005 WL 3157919, at *2; Wheat v. Commissioner, T.C. Memo. 1992-268, 1992 WL 95632, at *4. Therefore, respondent is not entitled to the presumption of proper mailing to prove that he mailed the two copies of the FPA on August 11, 2022.
The burden of production shifts to Big Apple to show that respondent did not mail the two copies of the FPA on August 11, 2022. See Coleman, 94 T.C. at 92. Although Big Apple asserts that it received them in November 2023, it has adduced no evidence of a mailing date other than August 11, 2022. The preponderance of the evidence supports a finding that respondent mailed the two copies of the FPA to Big Apple and to Mr. Bhutta on August 11, 2022. Thus, the deadline to file a petition with this Court was November 9, 2022.
Big Apple’s Petition was mailed to the Court no earlier than November 6, 2023, the date on the printed stamp affixed to the envelope received by the Court, which is 452 days after the two copies of the FPA were mailed. Cf. Pearson v. Commissioner, 149 T.C. 424, 440 (2017)
IV. Whether the Section 6234(a) Filing Deadline is Jurisdictional
There is no dispute that the FPA exists, and respondent has established that he properly mailed a copy of it to both Big Apple and Mr. Bhutta. We must now determine as a matter of first impression whether we have jurisdiction to readjust the Commissioner’s adjustments in an FPA when a partnership untimely files a petition in a section 6234 case.
If a federal court’s subject matter jurisdiction depends on the timely filing of a complaint or petition, a litigant’s failure to comply with the bar deprives a court of all authority to hear a case. United States v. Wong, 575 U.S. 402, 408–09 (2015). Courts must enforce the deadline sua sponte, the deadline cannot be tolled or waived, and there is no room for equitable exceptions to be made on account of the specific facts of a case. See Arbaugh v. Y & H Corp., 546 U.S. 500, 514 (2006). Instead, late-filed cases must be dismissed for lack of jurisdiction. See id.
Claim-processing rules, on the other hand, are those that seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times. Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). The failure to meet a claim-processing rule do[es] not deprive a court of authority to hear a case. Wong, 575 U.S. at 410. [F]iling deadlines . . . are quintessential claim-processing rules, Henderson, 562 U.S. at 435, and ordinarily are not jurisdictional, Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013). This is true even when the time limit is important . . . and even when it is framed in mandatory terms. Wong, 575 U.S. at 410. Deadlines that are claim-processing rules are subject to the rebuttable presumption that they may be equitably tolled upon the particular facts of a case. See Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990). A litigant’s failure to meet the deadline risks dismissal for failure to state a claim. See Arbaugh, 546 U.S. at 511–13. Nonetheless, the issue of the complaint’s or the petition’s timeliness may be waived. See Kontrick v. Ryan, 540 U.S. 443, 459–60 (2004).
Congress is free to attach the conditions that go with the jurisdictional label to . . . a claim-processing rule. Henderson, 562 U.S. at 435. [I]t is no less jurisdictional when Congress prohibits federal courts from adjudicating an otherwise legitimate class of cases after a certain period has elapsed . . . . Bowles v. Russell, 551 U.S. 205, 213 (2007). Congress must do something special, beyond setting an exception-free deadline, to tag a statute of limitations as jurisdictional and so prohibit a court from tolling it. Wong, 575 U.S. at 410. Congress, however, need not use magic words, Henderson, 562 U.S. at 436, as a statutory deadline may be jurisdictional even without using the word jurisdiction, see, e.g., Bowles, 551 U.S. at 208–10 (holding
To determine whether Congress has made the necessary clear statement, we examine the text, context, and relevant historical treatment of the provision at issue. Musacchio v. United States, 577 U.S. 237, 246 (2016) (quoting Reed Elsevier, 559 U.S. at 166). Statutes that provide jurisdictional deadlines share several qualities. They speak of a court’s power in jurisdictional terms or refer to a court’s jurisdiction. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). They define a federal court’s jurisdiction . . . , address its authority to hear untimely suits, [and] cabin its usual equitable powers. Wong, 575 U.S. at 411. Finally, their context—such as their placement within a statutory regime, history of reenactments, or longstanding judicial interpretation—reflects that Congress imbued a deadline with jurisdictional consequences. See, e.g., id. at 410; Henderson, 562 U.S. at 439; Bowles, 551 U.S. at 209–13; Zipes, 455 U.S. at 394.
Recently, we held in North Wall Holdings, LLC v. Commissioner, 165 T.C. 143, 154 (2025), that the filing deadlines in section 6226 under TEFRA are jurisdictional because the statute imposes a highly detailed and technical regime consisting of coordinated deadlines that cannot be read to contain implicit exceptions and that would fail to function were equitable tolling applied. In our discussion, we noted that the Supreme Court has twice before addressed whether a particular deadline in the tax area is subject to equitable tolling: in United States v. Brockamp, 519 U.S. 347 (1997), which predated the mandate to bring discipline to the term jurisdictional made in Henderson and Arbaugh; and most recently in Boechler, P.C. v. Commissioner, 142 S. Ct. 1493. Only in Boechler did the Supreme Court also address the question of whether the filing deadline at issue was jurisdictional. In Boechler, the Supreme Court reviewed section 6330(d)(1), which reads: The person may, within 30 days of a determination under this section, petition the Tax Court for review of such determination (and the Tax Court shall have jurisdiction with respect to such matter). Because the phrase such matter, notably contained in a parenthetical at the end of the statute at issue, had no clear antecedent in this context, there was no clear tie between the filing deadline and the Court’s jurisdiction.11 Boechler, P.C. v. Commissioner, 142 S. Ct. at 1497–99.
Since the decision in Boechler, this Court has reaffirmed the jurisdictional nature of the filing deadlines in section 6015(e)(1)(A) in Frutiger, 162 T.C. 98; and section 6213(a) in both Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022), and Sanders v.
A. Text of Section 6234(a)
We begin with an analysis of the text of the statute itself. See Boechler, P.C. v. Commissioner, 142 S. Ct. at 1497–98; Frutiger, 162 T.C. at 103 (citing Blue Lake Rancheria v. United States, 653 F.3d 1112, 1115 (9th Cir. 2011)). If the statutory language is plain, we must enforce it according to its terms. Frutiger, 162 T.C. at 103 (first citing King v. Burwell, 576 U.S. 473, 486 (2015); and then citing Green v. Commissioner, 707 F.2d 404, 405 (9th Cir. 1983), rev’g 78 T.C. 428 (1982)). When deciding whether the language is plain, we must read the words in their context and with a view to their place in the overall statutory scheme. Id. (quoting King, 576 U.S. at 486). Oftentimes, the meaning—or ambiguity—of certain words or phrases may only become evident when placed in context. King, 576 U.S. at 486 (quoting FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)). Our duty is to construe statutes, not isolated provisions, id. (quoting Graham Cnty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 290 (2010)), and our focus is on whether the statute expressly refers to the Court’s authority to hear a case rather than merely the consequences to the taxpayer, Belagio Fine Jewelry, 162 T.C. at 251–52 (first citing Harrow v. Dep’t of Def., 144 S. Ct. 1178, 1183–84 (2024); then citing Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500; then citing Wong, 575 U.S. at 411; then citing Dolan v. United States, 560 U.S. 605, 610 (2010); then citing Reed Elsevier, 559 U.S. at 161; and then citing Landgraf v. USI Film Prods., 511 U.S. 244, 274 (1994)).
The statute provides as follows:
Sec. 6234. Judicial review of partnership adjustment
(a) In general.—Within 90 days after the date on which a notice of a final partnership adjustment is mailed under section 6231 with respect to any partnership taxable
year, the partnership may file a petition for a readjustment for such taxable year with—
- the Tax Court,
- the district court of the United States for the district in which the partnership’s principal place of business is located, or
- the Court of Federal Claims.
(b) Jurisdictional requirement for bringing action in district court or Court of Federal Claims.—
- In general.—A readjustment petition under this section may be filed in a district court of the United States or the Court of Federal Claims only if the partnership filing the petition deposits with the Secretary, on or before the date the petition is filed, the amount of (as of the date of the filing of the petition) the imputed underpayment, penalties, additions to tax, and additional amounts with respect to such imputed underpayment if the partnership adjustment was made as provided by the notice of final partnership adjustment. The court may by order provide that the jurisdictional requirements of this paragraph are satisfied where there has been a good faith attempt to satisfy such requirement and any shortfall of the amount required to be deposited is timely corrected.
- Interest payable.—Any amount deposited under paragraph (1), while deposited, shall not be treated as a payment of tax for purposes of this title (other than chapter 67).
(c) Scope of judicial review.—A court with which a petition is filed in accordance with this section shall have jurisdiction to determine all partnership-related items for the partnership taxable year to which the notice of final partnership adjustment relates, the proper allocation of such items among the partners, and the applicability of any penalty, addition to tax, or additional amount for which the partnership may be liable under this subchapter.
(d) Determination of court reviewable.—Any determination by a court under this section shall have the force and effect of a decision of the Tax Court or a final judgment or decree of the district court or the Court of Federal Claims, as the case may be, and shall be reviewable as such. The date of any such determination
shall be treated as being the date of the court’s order entering the decision.
(e) Effect of decision dismissing action.—If an action brought under this section is dismissed other than by reason of a rescission under section 6231(c), the decision of the court dismissing the action shall be considered as its decision that the notice of final partnership adjustment is correct, and an appropriate order shall be entered in the records of the court.
By itself, section 6234(a), which provides the filing deadline, clearly contains a permissive grant for a partnership to file a claim but not a grant of jurisdiction. Compare § 6234(a), with Auburn Reg’l Med. Ctr., 568 U.S. at 154 (concluding that the phrase may obtain a hearing does not speak in jurisdictional terms). Although it is not required, the statute does not contain the word jurisdiction. See Bowles, 551 U.S. at 208–13. But see Buller, 160 F.4th at 269 (finding significant that section 6213(a) did not include the word jurisdiction in the relevant portion of the statute); Oquendo v. Commissioner, 148 F.4th at 832. It simply lists the venues in which a partnership may file after receiving a timely FPA and within the 90-day deadline. There is no language beyond mere reference to the courts of review that speaks to the Court’s authority to hear a case, just mundane statute-of-limitations language. Wong, 575 U.S. at 410. Section 6234(a) does not even go as far as section 7436(b)(2) in providing the consequences of an untimely filing. See Belagio Fine Jewelry, 162 T.C. at 252.
Instead, we find our grant of jurisdiction in section 6234(c). Whereas section 6234(a) appears to speak only to deadlines directed at the taxpayer, section 6234(c) speaks very clearly and directly to the jurisdiction of the reviewing court. Section 6234(c) mandates that a court shall have jurisdiction, see Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 171 (2016) ([T]he word ‘shall’ usually connotes a requirement.), and specifies what precisely a court may review and determine, i.e., partnership-related items . . . the proper allocation of such items among the partners, and the applicability of any penalty, addition to tax, or additional amount for which the partnership may be liable under this subchapter, § 6234(c). The proximity, or lack thereof, of the filing deadline to the jurisdictional grant is not dispositive, however. Boechler, P.C. v. Commissioner, 142 S. Ct. at 1499. [T]he important feature is . . . a clear tie between the deadline and the jurisdictional grant. Id. And in this case, we think that analysis comes down to the clarity of the phrase in accordance with, as used in section
The ordinary meaning of the phrase in accordance with is in agreement or harmony with; in conformity to; according to. See Accordance, Oxford English Dictionary, https://www.oed.com/dictionary/accordance_n?tab=meaning_and_use#37376661 (last visited July 20, 2026); In accordance with, Merriam-Webster, https://www.merriam-webster.com/dictionary/in%20accordance%20with (last visited July 20, 2026) (in a way that agrees with or follows (something, such as a rule or request)); see also Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1750 (2020) ([T]he law’s ordinary meaning at the time of enactment usually governs . . . .); Freeman v. Quicken Loans, Inc., 566 U.S. 624, 634 (2012) ([I]t is normal usage that, in the absence of contrary indication, governs our interpretation of texts. (first citing Crawford v. Metropolitan Gov’t of Nashville & Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009); and then citing Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995))). The statute could therefore quite plausibly be read as saying that a court shall not have jurisdiction to review partnership-related items where a petition is filed in nonconformity with the express requirements of section 6234,14 including section 6234(a). See United States v. Menasche, 348 U.S. 528, 538 (1955) (applying the surplusage canon under which [t]he cardinal principle of statutory construction is to save and not to destroy (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937))); see also Growmark, Inc. & Subs. v. Commissioner, 160 T.C. 475, 486 (2023) (When construing a statute, the Court must interpret it so as to avoid rendering any part of the statute meaningless surplusage. (quoting 15 W. 17th St. LLC v. Commissioner, 147 T.C. 557, 586 (2016))).15 Although this interpretation is plausible, we stop
[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion. Russello v. United States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972) (per curiam) (alteration in original)); see also Enbridge Energy, LP v. Nessel ex rel. Michigan, 146 S. Ct. 1074, 1084 (2026) (citing Bittner v. United States, 143 S. Ct. 713, 720 (2023)); United Therapeutics Corp. v. Commissioner, 160 T.C. 491, 512 (2023), aff’d, 105 F.4th 183 (4th Cir. 2024). In contrast to the permissive language of section 6234(a), section 6234(b) very clearly delineates jurisdictional requirements, referring to them in both the title16 and the body of the statute.17 Courts have long recognized that the phrase jurisdictional requirements as used in the body of former section 6226(e)(1) under TEFRA, which nearly mirrored the text of section 6234(b)(1), rendered the deposit requirements described therein jurisdictional prerequisites. See, e.g., Letko v. United States, 176 Fed. Cl. 682, 685 (2025). Indeed, we can think of no phrasing more clearly intended to convey the jurisdictional nature of a requirement than jurisdictional requirements.18
B. Context of Section 6234
If we expand our frame of reference beyond section 6234, the text and context of the BBA’s overall statutory scheme lend themselves to a nonjurisdictional reading of the petition filing deadline as well. The TEFRA partnership audit and litigation provisions were distressingly complex and confusing because they blend[ed] the entity and aggregate theories of partnership tax. Rhone-Poulenc Surfactants & Specialties, L.P. v. Commissioner, 114 T.C. 533, 540 (2000). The BBA now provides a different regime in which [a]ny adjustment to a partnership-related item shall be determined, and any tax attributable thereto shall be assessed and collected, . . . at the partnership level, except to the extent otherwise provided in subchapter C of chapter 63 of subtitle F of the Code. § 6221(a).
Second, although we made this point in North Wall in the context of whether equitable tolling applies,19 we think it relevant in this analysis as highlighting the fundamental structural differences between TEFRA and the BBA: The TEFRA regime contained explicit, highly detailed exceptions to the filing deadlines clearly showing that implicit exceptions such as equitable tolling could not easily be read into it. North Wall, 165 T.C. at 164–66.20 These detailed exceptions were intended to account for people who might be unable to file a timely petition. Id. at 165. In contrast, the BBA does not provide a multitude of tailored exceptions to the rule created by sections 6223 and 6234 that only the partnership, by and through the partnership representative, may initiate a proceeding within 90 days of the mailing of an FPA, see
The BBA does provide one main exception to the requirements under section 6223 and 6234(a): a complete opt-out of BBA procedures under section 6221.22 Section 6221 allows partnerships with 100 or fewer partners23 to opt out of the BBA procedures for a taxable year through an election made on a timely filed return for that year. See § 6221(b). The election is valid only for the taxable year for which it is made and is binding on all partners unless determined to be invalid. Id.; see also
Third, we held in North Wall that equitable tolling was not compatible with TEFRA’s assessment procedures.26 Id. at 161–64. TEFRA’s complex assessment process, by which partnership-level adjustments were converted to partner-level assessments, could not function without a clearly fixed and final assessment date. Id. The system would grind to a halt if the Commissioner were required to unwind actions taken against each partner, which in some cases may include other partnerships, every time a petition was equitably tolled. Id. Put simply, allowing equitable tolling because of one party’s circumstances would affect multiple parties. Id. at 160. But whereas equitable tolling of a TEFRA petition threatened administrative paralysis, it only poses headaches under the BBA.
The BBA uses certain timing concepts, including and especially the adjustment year, see § 6225(d)(2), to ensure that the partnership is treated primarily as an entity and that the aggregate theory of the partnership—while not obsolete in tax procedure—is only invoked selectively (e.g., in aid of collection after liability has been finally determined in the adjustment year). Under the default rule,27 who
By virtue of the concept of the adjustment year, applying equitable tolling may result in a situation in which the notice-year partners (i.e., the partners at the close of the partnership taxable year in which an FPA is mailed) may no longer be the proper subjects of collection because there would be no adjustment-year partners until the decision of the court is final. See §§ 6225(d)(2), 6232(b)(2), (f)(1)(B). Were a partnership able to file beyond the 90-day deadline, the Commissioner would therefore need to unwind any assessments, including those made on individual partners under section 6232(f)(1)(B) and potentially any collection activities already taken, regardless of the final decision made. This raises two potential problems, neither of which supports a reading of the 90-day deadline under section 6234 as jurisdictional.
First, as to the game of musical chairs that may occur with respect to the partners ultimately liable for an imputed underpayment, this is not a product of the application of equitable tolling but of Congress’s decision to tie liability to the adjustment year by default rather than to the reviewed year. Tying liability to the reviewed-year partners would
Second, where an imputed underpayment has not been paid by the partnership, the Commissioner may assess that imputed underpayment on the individual partners. See § 6232(f). But, unlike TEFRA, this is never an individualized partner-level assessment, see N. Wall, 165 T.C. at 161–62 (discussing the tedious process of converting partnership-level adjustments into partner-level assessments), just an assessment of the partner’s proportionate share of the imputed underpayment already assessed against the partnership,31 § 6232(f)(1)(B), (3). More importantly, the Commissioner is not required to assess proportionate shares of an imputed underpayment against individual partners but may do so as a secondary means of collection. The assessment made against the partnership remains regardless of whether authority under section 6232(f)(1)(B) is exercised;32 and even
In sum, although the text of sections 6234 of the BBA and 6226 of TEFRA is nearly identical,34 we do not find in the BBA the same legal and administrative complexities that led us to our holding in North Wall.
C. Historical Treatment
Given the clear similarities in text between former section 6226 and section 6234, see supra note 34, as well as the fact that the BBA does not benefit from an extensive judicial history, it would be tempting to rely on the historical treatment of TEFRA in determining whether the BBA’s filing deadline is jurisdictional. In North Wall, 165 T.C. at 158–59, we pointed to nearly 40 years of jurisprudence supporting a jurisdictional reading of TEFRA’s deadlines, particularly two relatively recent cases from the U.S. Courts of Appeals for the Ninth and Fifth Circuits: SNJ Ltd. v. Commissioner, 28 F.4th 936 (9th Cir. 2022), and
First, when a long line of Supreme Court decisions, left undisturbed by Congress, has treated a requirement similar to the one at issue as jurisdictional, we presume that Congress intended parallel treatment for the requirement at issue. Henderson, 562 U.S. at 436 (first citing Union Pac. R.R. Co. v. Bhd. of Locomotive Eng’rs & Trainmen Gen. Comm. of Adjustment, Cent. Region, 558 U.S. 67, 82 (2009); and then citing John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133–34, 139 (2008)); Belagio Fine Jewelry, 162 T.C. at 257. The Supreme Court, however, has not ruled on TEFRA’s filing deadlines or on a requirement similar to section 6234(a). Compare § 6234(a), with Belagio Fine Jewelry, 162 T.C. at 258 (noting that the Supreme Court has never considered whether the deadline in section 7436(b)(2) is jurisdictional).
Second, in Hallmark and Sanders, we considered the prior-construction canon in examining the historical treatment of section 6213(a). See Sanders, 161 T.C. at 118–19; Hallmark Rsch. Collective, 159 T.C. at 153–63. [T]he principal ground of our decision [in Hallmark] was the ‘prior-construction canon,’ which is a principle distinct from stare decisis. Sanders, 161 T.C. at 118–19. Whereas
The Supreme Court, however, has advised that we are not to accord precedential effect to rulings in which the court fails to expressly consider whether a dismissal should be for lack of jurisdiction or failure to state a claim. Boechler, P.C. v. Commissioner, 142 S. Ct. at 1500 (citing Henderson, 562 U.S. at 435) (treating caselaw related to the jurisdictional nature of filing deadlines which predated the mandate in Henderson to bring discipline to the term jurisdictional as nonprecedential). We also may not, for purposes of the prior-construction canon, rely on caselaw that post-dates the enactment of the requirement at issue absent a subsequent amendment or reenactment retaining the language held jurisdictional. See Belagio Fine Jewelry, 162 T.C. at 259 (concluding that cases decided subsequent to the most recent amendment of a statute cannot be given precedential effect for purposes of the prior-construction canon). Consequently, our judicial history is limited to just A.I.M. Controls and Wise Guys Holdings.36
Even accepting the similarity in text between former section 6226 and section 6234, we think it too much of a stretch to say that two cases interpreting a preceding statute similarly worded to the one at issue but which operated in a vastly different administrative regime could be said to have settled the meaning of the statutory language used in the new statute or establish consistent construction from one statute to another. Bragdon, 524 U.S. at 645.37 BBA and TEFRA created two
V. Conclusion
Respondent has established that he properly issued and mailed the FPA to Big Apple and to Mr. Bhutta, and that Big Apple did not timely file this Petition. However, considering the relevant text, context, and history of section 6234(a), we conclude that Congress did not clearly state that the 90-day filing deadline is jurisdictional. We therefore are not deprived of jurisdiction because of Big Apple’s untimely filing, and will deny respondent’s Motion. We reserve judgment on whether the 90-day deadline is subject to equitable tolling until the parties raise this issue in an appropriate manner.
To reflect the foregoing,
An appropriate order will be issued.