Tag Archives: Time Bar

Average Joe SCOTUS: Boechler v. Commissioner of Internal Revenue

Hello, SCOTUS nerds. In today’s episode of “How Fast Can I Put You To Sleep?” we have a monstrously boring procedural issue at play.

The basic idea is that Boechler P.C., some podunk Fargo North Dakota law firm (yes, that Fargo), submitted the taxes they withheld for their employees, but apparently their accountant sucks royal ass—making a good number of mistakes in their submission to the IRS.

So the IRS sent Boechler a letter saying, “Hey, you’re into law? So are we. Cool-cool-cool. Hey, um…we couldn’t help but notice your accountant’s math is about as accurate as a storm trooper’s aim. They kinda fucked up your employee’s tax withholdings. But it’s all good, we don’t want no trouble or anything. Could you please just correct it, and resubmit it. Thank you so much. Call us sometime. Toodles!”

Jeanette Boechler

Here’s the rub, not only is Boechler’s accountant trash, but apparently their mailroom sucks balls too, because they got the letter, and either lost it, or just didn’t respond to it all.

So the IRS got their feelings hurt at this point because they were ghosted by Boechler. Since they’re whiny little bitches, they wielded their superpower to fine people for shit they don’t like, hitting Boechler with a 10% “We got our feelings hurt” fee, amounting to a little over $19,000.

In a rather admirable move, Boechler, ever the master ghosting artists didn’t respond to that shit either. Apparently there are a lot of people in North Dakota who need lawyers, and they’re just to busy to deal with the IRS’ shit right meow.

So now the IRS’ feelings were REALLY hurt. This time, they’re like, “You know what, fuck you. We didn’t want to talk to you anyway. But we want our $19,250, so we’re levying your ass, and we’re just going to conveniently pull that shit right out of your bank account. How do you like dem apples, mother fucker?”

Knowing that they were going to be stuck paying this shit, Boechler finally decided to respond. They started off by saying, “First of all, fuck you. And fuck your petty-ass fine, too. We’re submitting a request for a “Collection Due Process” (CDP) hearing. We’ll see you cunts in tax court.”

They were told in the notice they received from the IRS they had 30 days to respond. The deadline according to the IRS, was August 28th, 2017, 30 days after they mailed that shit out. Boechler, being the consummate troll, mailed that shit August 29th, 2017, precisely one day late, by the IRS’ definition.

So you’re probably wondering why SCOTUS is involved with this shit, right? Well, we’ve talked before about how SCOTUS loves nerdy shit. Well…here comes the nerdgasm.

You see, that 30 day time limit that required they respond by August 28th…it’s debatable when the clock starts on that 30 days. The IRS argues it starts as soon as they mail it. But Boechler, being a law firm, loves to fucking argue with anyone they can. It’s what they do.

So they were like, “Listen you IRS cunts, I don’t know if you’re aware of this, because you’re an incompetent bunch of government hacks, but there’s another group of incompetent government hacks called the United States Postal Service. And it might come as a surprise to you dumb fucks, but they don’t deliver mail instantaneously like an email. It takes them several days to bring that shit to us. As such, we think the 30-day response limit should start from when we received your letter, not from when you sent it. I mean, how does that make any fucking sense? We’re not fucking psychics. We don’t know you even fucking mailed a letter until we receive it. So this is some straight up bullshit.”

*Mic drop*

The issue at hand for SCOTUS to decide, is a legal principle called “Equitable Tolling.” It basically means that in instances like this, where there’s a time bar (a legal term for a time limit), the courts have the authority to decide when the clock starts, stops, and even sometimes when it pauses.

The U.S. Courts of Appeals for the 8th and 9th Circuits were like, “Fuck Boechler. Rules are rules. The court hearing Boechler’s argument lacks jurisdiction to allow for equitable tolling.” But then along comes the U.S. Court of Appeals for the District of Columbia Circuit, and they’re like, “Whoa, you assholes. Boechler has a fair fucking point. They filed an appeal, and the court should absolutely have the right to apply equitable tolling if they think it’s appropriate.

So the question before SCOTUS is whether the U.S. Tax Court has the right to apply equitable tolling in this case, and potentially grant relief to Boechler, extending their deadline to 30 days after they received the letter, as opposed to when the letter was sent.

As arguments began, one sticking point was in the tax code itself. Code 26 U.S.C. § 6330 (d)(1) says the following

(1) Petition for review by Tax Court

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).

So the IRS is arguing that this 30-day time bar written into this statute is as solid as an 18 year old boy’s dick at a strip club in this wording, and only if the person files within 30 days (by the IRS’ definition), can a tax court opine on whether this person owes the IRS their fines and shit. But because that shit is worded before the part in parenthesis giving the tax courts jurisdiction, it means the tax courts don’t have jurisdiction on the time bar, and thus can’t grant equitable tolling.

But those creative legal fucks at Boechler argue that the part in parenthesis about the Tax Court having jurisdiction, applies to everything, including whether or not to grant equitable tolling.

So when I say SCOTUS loves nerdy shit, I’m going to tell you, I’m serious, y’all. They spend a LOT of time debating why Congress would put this shit in parenthesis, and how that mattered in the decision of this case.

To begin arguments, counsel Melissa Arbus Sherry opened with this:

Mr. Chief Justice, and may it please the Court: This Court has repeatedly held that time limits are rarely jurisdictional and that if Congress wants to make them jurisdictional, it has to speak clearly.

Section 6330(d)(1) does not have the needed clarity. The first clause reads like an ordinary statute of limitations.

It says what the taxpayer may do, and it says nothing about the Tax Court’s jurisdiction.

The second clause does speak to jurisdiction, but the only reference back to the first is through the two words “such matter.” Now we think “such matter” refers to a petition to the Tax Court for review of a CDP determination.

The Commissioner agrees, but he says it also refers to the 30-day deadline to file that petition. Our reading is more natural.

It stops at the closest reasonable antecedent, and it uses the word “matter” as it’s ordinarily understood.

The Commissioner’s reading requires more work, and it requires this Court to treat the time limit the same as subject matter in the context of subject matter jurisdiction.

If nothing else, it is far from clear. The statutory history resolves any doubt.

Melissa Arbus Sherry

As originally enacted, the same time limit governed the Tax Court and the district courts and it was not jurisdictional.

The relevant language has not changed.

It has to mean the same thing today as it did in 1998. Congress enacted this collection due process regime in order to protect taxpayers from IRS abuses.

It would not have included a rare and harsh jurisdictional deadline to close those courthouse doors, let alone through a vague parenthetical reference to “such matter.” And equitable tolling easily follows from that.

That is the presumption, and it is not overcome here.

The limitations period looks just like the one in Irwin, and it looks nothing like the deadlines in Brockamp.

The CDP regime is remedial, and it is a place where equity finds a comfortable home. I welcome the Court’s questions.

By and large, the justices seemed to accept counsel Sherry’s argument, not really seeming to argue against her in any way. They all seemed of the opinion that the wording of the statute could have specifically addressed time bar jurisdiction, and it didn’t, leaving the idea of equitable tolling open to the Tax Court which has jurisdiction otherwise in this statute.

Justice Clarence Thomas

For the IRS, counsel Johnathan Bond argued that the statute above basically says that the Tax Court has jurisdiction over their CDP claim, if it’s filed within the time bar, meaning that the time bar is absolute, and only if they submit it on time, can the tax court give their opinion. So if this is true, then the tax court can’t fuck around with no equitable tolling.

Justice Thomas chimed in immediately and asked if there was ever an instance where equitable tolling was considered for such cases.

This started off a fairly interesting exchange between counsel Bond, and Justices Roberts and Barrett:

Jonathan C. Bond

Yes, there are statutory grounds for tolling that apply that are different fundamentally from equitable tolling, and if I could address those specifically. There’s one in this provision itself, 630 — 6330(d)(2) for cases of bankruptcy. There are also general statutory tolling provisions that apply to this and many other provisions in the code for cases where a person is in a combat zone or a disaster area. What’s fundamentally different about those — about each of those areas is that the information the IRS needs to know in order to determine whether it can proceed with collection is in its possession and is automatically processed by its system. The IRS gets monthly data from the Department of Defense on whether someone is in a combat zone.

It has — its systems automatically query whether someone’s ZIP code is affected by a disaster declaration.

And the IRS is served with a bankruptcy petition and knows whether to put a freeze code on that person’s account. Equitable tolling is fundamentally different.

Jonathan C. Bond

And the open-ended exception that I think Petitioner is proposing would not be workable for the IRS because, when the IRS issues these 26,000-plus collection due process determinations, it would have no way of knowing whether a particular taxpayer who doesn’t pay or doesn’t file their petition on time is subject to an equitable circumstance or an extraordinary circumstance that stands in their way.

John G. Roberts, Jr.

They get monthly reports from the Department of Defense over who’s in a combat zone?

Jonathan C. Bond

They receive monthly data from the Department of Defense that is — that flows into the IRS’s data system, that’s correct.

John G. Roberts, Jr.

Well, how do they even know that — I mean, when do they find out? I mean, nobody knows if they’re going to make — file a claim for something until they file a claim. I mean, I — I’m just — there are a lot of people, and the Department of Defense — I — I — I just am struck by the difficulty that that presents and want to make sure I understand what’s involved.

Jonathan C. Bond


As — as — as we understand it, the Department of Defense provides this data that goes into the IRS’s system addressing taxpayers generally, not just those —

John G. Roberts, Jr.

Taxpayers generally? Like every taxpayer in the country?

Jonathan C. Bond

Those — those who are in combat zones, that data is provided by the Department of Defense.

John G. Roberts, Jr.

Chief Justice John Roberts

So there is somewhere in there something said, you know, Fred Smith not in combat zone.

And we don’t even know if Fred Smith’s going to file something in the Tax Court or not.

Amy Coney Barrett

And do you cross-reference it when the list comes in and — and — and —

Jonathan C. Bond

Yes, this is processed by the IRS’s computers.

And that — that’s because this doesn’t just affect collection due process but a number of other deadlines and provisions in —

John G. Roberts, Jr.

Yeah, I know. But my point is that your name is there even though you’ve got nothing to do with — there’s no reason the IRS should worry about you, or —

Jonathan C. Bond

Well, if you’re a taxpayer. It’s not all persons generally but all taxpayers.

John G. Roberts, Jr.

Wow. Okay.

So let me summarize what was said here and what his argument is. He’s saying the fucking IRS gets monthly reports from the government as to who is going through bankruptcy, who’s in a combat zone, or who is in a disaster area. Even if they don’t owe the IRS a fucking dime. Sounds like a big fucking list, yo.

The IRS then cross reference that with all the fuckwads they think owe them money, against this grand list of people who are going through some shit, and any matches they find, they’ll cut them a little slack on that 30 day time limit. Everyone else? Fuck ’em.

“Wow” indeed, justice Roberts. “Wow” indeed.

I don’t know about you, but this seems like a pretty crazy system the IRS has set up, just to determine who can get a little leniency on the 30-day time bar.

Justice Breyer also seemed to think counsel Bond might have been hitting the crack pipe before he walked into the court room, because he took him to task on his knowledge on the meaning of words. See, counsel Bond argued that the tax court’s ability to hear a CDP petition rests on the “timely” submission of the request, according to the statute. So he thinks that means that “timely” must be settled first, before the tax court gets involved. But justice Breyer seemed to be having none of this shit:

Stephen G. Breyer

Justice Stephen Breyer

So does that mean it’s well established — look, the obvious thing in English — I don’t know about the last antecedent rule and so forth, but — but just in ordinary English, it says here “such matter.” Okay? Now that could refer to the appeal of such determination, or it could refer to the appeal of such determination filed within 30 days.

Okay? Now I think that was Justice Kavanaugh’s point.

And it got me why it couldn’t refer to either.

And — and then, if you go back to (e), it does say timely, but, I mean, you go back to laws — Black’s Law Dictionary, I don’t know, maybe you go back to Justinian, and it says what tolling does is it stops the clock.

Okay? It stops the clock. So, if you do have tolling and you stop the clock for three days because the person involved was very ill or his family was or something, and the best reason in the world he couldn’t get to the post office, there was black ice everywhere, I don’t know, but then it stopped three days later.

Okay? Then it was timely when he got around to filing it, and they excused it. I mean, can’t it be read that way? I mean, I guess everybody’s asking the same question, just emphasizing “can’t.”

Jonathan C. Bond

So I don’t think “timely” in (e)(1) can mean that —

Stephen G. Breyer


Jonathan C. Bond

— again because — because — again, for two reasons.

First, that’s not how this — that’s the opposite of how this Court has described the effect of tolling in the equitable tolling context on which Petitioner relies.

And in this particular provision, where Congress is saying a timely petition is a jurisdictional prerequisite, it’s passing strange for Congress to say timely when they — if what they meant was timely only by operation of equitable doctrines that do not apply to jurisdictional prerequisites. So I think that argument just doesn’t hold.

Stephen G. Breyer

The law dictionary says equitable tolling is a court’s discretionary extension of a legal deadline.

So they extended the legal deadline, and, therefore, it is timely.

Justice Breyer, hearing his arguments, and clearly not being too impressed by them, went on to ask, “OK, you dumb fuck. Let me ask you this. If we side with Boechler, explain to us exactly what bad shit is going to happen to the IRS as a result?”

Counsel Bond resonded:

So I would point you to two things, one specific to this context and more a — a broader concern of spillover effects in the code. The specific consequence here is that if tolling is available, then when the 30-day deadline to petition runs, in the 26,000 cases where the IRS issues these determinations, it then will be in a state of uncertainty about what, if anything, it can do to collect because it will know that a taxpayer may file a late petition, assert tolling, and months or years later a court will conclude that tolling was, in fact, available.

And I think that puts the IRS in an impossible position. More broadly, I would — I would point the Court to spillover effects of interlocking relationships in the code.

The Ninth Circuit, in the Organic Cannabis case, pointed to an illustration of this if you apply Petitioner’s approach to Section 6213(a) governing deficiency.

And that’s 95 percent of the court’s docket.

And they explained that if you apply equitable tolling there, because of the interrelationships of the code, you’ll end up harming taxpayers by precluding them from seeking — or from bringing refund suits. The Taxpayer Advocate has acknowledged that

Counsel Bond seems to be arguing that the time bar is paramount and absolute, and thus not available for tolling, because congress knew it would cause the IRS to wonder if and when it’s gonna get fucking paid. Congress needs that money, yo! They argue if tolling is allowed, then when someone fails to respond, the IRS will have to sit around with their thumbs in their asses, waiting to see if these deadbeat tax-dodgers are going to ask for equitable tolling. The IRS would much rather be stealing money out of these fuckers’ bank accounts than engaging in some thumb ass play, as appealing as that might sound.

In a unanimous decision, siding with Boechler, SCOTUS told the IRS that while their argument was wildly creative, they’re basically a bunch of fucking idiots. Apparently, SCOTUS are no fans of the IRS, nor the 8th and 9th circuit of appeals.

They argued that the law in question could have been written by congress in such a way as to make it clear who has jurisdiction over these time bars, and congress didn’t. The idea that the statute above somehow means that the tax court can’t opine on whether equitable tolling is warranted, is absurd. When they wrote “Such matter” into the clause giving the tax court jurisdiction, they could have excluded the time limit, and they didn’t. So “Such matter” can and should include the time limit.

SCOTUS is apparently not much of a fan of those lazy fucks in congress either, because this ruling basically says that going forward, if congress wants to limit who has jurisdiction to apply equitable tolling, they had better fucking do so explicitly, otherwise all the courts who have jurisdiction to hear the case, can consider equitable tolling. When they use ambiguous terms such as “Such matter” they leave their laws open to interpretations they may not have intended, and thus we’re sick of having to sort their shitty laws that appear to have been written by a fucking twelve year old out.

Part of their argument also seems to be that equitable tolling is an important part of judicial review. As such, it must be the default position that courts may consider tolling, until congress specifically writes otherwise, for whatever dumb fucking reasons they can think of.

Maybe the IRS will be a little more efficient now, too. Since they won’t have to do any more crazy cross-referencing.

Average Joe SCOTUS: Niz-Chavez v. Barr

Agusto Niz-Chavez fled Guatemala  and all its glorious violence for the good ole USA in 2005. Since then, he knocked up his wife here three separate times, so now he’s got three citizen babies.

In 2013 he got pulled over for a fucked up taillight, and officers busted him and sent him to immigration. He was issued a Notice to Appear (NTA) which told him to appear in court.

So this is basically a rules issue. If you’re here for more than ten years, we basically say you can stay, barring you being a scumbag murderer or some shit.

Chavez is like, “I’ve been here ten years, assholes. Why are you bothering me. I did my time, I’m here now.”

But the lower court judge was like, “Wait a minute fuck face, you were only here eight years when you got the NTA, and that triggers a stop time rule, meaning that when considering if you fulfilled the ten year requirement, any time after you got the NTA doesn’t count. But Chavez was like, “How can you say the stop time rule is in effect when the notice you sent, didn’t even have a fucking date as to when I was supposed to be removed?”

So basically Chavez ‘s team is trying to say because the notice he initially received didn’t have all the relevant info on it that Chavez needed, the time bar shouldn’t have kicked in, because they fucked up.

So basically, SCOTUS is being asked to let him off on a technicality.

In a 6:3 opinion, where Justices Roberts, Alito, and Kavanaugh dissented, SCOTUS ruled in favor of Niz-Chavez. As Oyez.com writes, the opinion stated that The government must serve a single document that includes all the required information for the notice to appear to trigger the IIRIRA’s stop-time rule.

The dissenters felt like there is no need for all that bullshit. Once you receive the NTA, you know you’ve been fucking told, and you know the government is on to you. You don’t get off because they don’t have a date set yet, or some shit.

Hear oral arguments or read about the case here at Oyez.com