Second Circuit Opens the Door to Equitable Tolling for Late Tax Court Petitions: Buller et al. v. Comm.

The Second Circuit’s recent decision in Buller et al. v. Commissioner of Internal Revenue, No. 24-1557 (2d Cir. 2025), is a game-changer for taxpayers who miss the critical ninety-day deadline to petition the Tax Court after receiving an IRS notice of deficiency.

The Backstory

Mark Buller and Sarah Beatty received a notice of deficiency from the IRS regarding their 2018 income tax return. Under the Internal Revenue Code, they had ninety days to file a petition in Tax Court challenging the IRS’s findings. Unfortunately, their attorney filed the petition nine days late. As is routine, the Tax Court, following its longstanding precedents, found the lateness stripped it of jurisdiction and dismissed the case.

The Appeal and a Shift in the Law

Buller and Beatty didn’t give up. They appealed to the Second Circuit, arguing that the ninety-day deadline shouldn’t be a hard jurisdictional line but rather a procedural rule that, in some cases, could allow for flexibility if there’s a good reason, what’s known as “equitable tolling.”

In a ruling with far-reaching implications, the Second Circuit agreed. The court reasoned that recent Supreme Court decisions have drawn a sharp line between rules that truly limit a court’s power (“jurisdictional” rules) and those that just set up ordinary filing requirements (so-called “claim-processing rules”). The latter can sometimes be bent for equity’s sake.

The court specifically referenced the Supreme Court’s determination in Boechler P.C. v. Commissioner and other cases that deadlines like this one shouldn’t be treated as jurisdictional unless Congress clearly said so, which wasn’t the case here.

What This Means

The Second Circuit held that the ninety-day deadline in section 6213(a) is not jurisdictional, and is instead a claim-processing rule that can be subject to equitable tolling if circumstances justify it. This means the Tax Court can hear late petitions in rare cases where, for instance, the taxpayer was prevented from filing on time due to extraordinary circumstances, though taxpayers will still need to convince the court they meet these criteria.

The court sent Buller and Beatty’s case back to the Tax Court to decide whether their situation met the standard for equitable tolling.

Tax Practitioners And Affected Litigants Should Take
Note: While Deadlines Still Matter, For Some Late Filers,
The Courthouse Doors Are Not Forever Barred.

Why This Matters

Before this decision, missing the ninety-day filing deadline almost always spelled doom for a taxpayer’s Tax Court challenge, no matter the reason for the delay. Going forward, at least in the Second Circuit, taxpayers whose late filings result from circumstances beyond their control now have a shot at getting their day in court.

This aligns the Tax Court’s approach with modern Supreme Court doctrine and signals a more flexible, humanity-driven reading of procedural requirements, at least in cases where equity calls for a second look.

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Sources:

1.       https://law.justia.com/cases/federal/appellate-courts/ca2/24-1557/24-1557-2025-08-14.html

2.      https://kpmg.com/us/en/taxnewsflash/news/2025/08/second-circuit-90-day-time-limit-equitable-tolling.html