recent years has relied on language and iris notice a terminations to her detriment and ask you about that number but it really doesn't help me at all without any context as to how many folks don't comply with the statue so what does that mean late and thought they filed on time and then when the tax were dismissed their case for being untimely said i thought i filed on time because i complied with the language of this letter that the ira sent seventeen hundred times to those thirty four the period begins a forty day period beginning the day after date of this letter the language of section sixty three thirty d one which controls your right to petition the tax court says within thirty days of a determination under this section within thirty days of  determination is closed ended language such that if you misunderstood the statute or the rules of the tax court and began counting you would think that within thirty days begins on the day of the determination and you would accidentally file on the twenty ninth day thinking it was the thirtieth on the other hand the language a thirty day period beginning the day after the date of this letter causes pro se tax payers like miss cunningham to begin on the day after the date of the letter which they're supposed to but most people think that time begins at zero like a stopwatch and it runs for most people what's the evidence for that is the evidence is that we know the number of people have misunderstood that and that although people are eight people if not most people well the argument that we're making is that a procedure taxpayer is likely to count time differently than a lawyer does to be read based on what the statute says not what approach to a pro se taxpayer cannot claim ignorance of the law if the issue is jurisdiction of the court it may come into play in terms of equitable tolling but not in terms of the jurisdiction of the court really what the pro se tax payer thought is irrelevant isn't it in terms of the to the jurisdictional question in this case is that a statute of limitations is not jurisdictional unless there is a clear statement by congress that it is this is the simple test in our bobbie why each corporation and this case congress has not made such a statement now section honor because that subsection clearly says the tax court child had no jurisdiction under this paragraph to join any action in the us a timely appeal has been filed so timely appeal is apparently very closely tied in statutory language to the issue of jurisdiction so how do we then get beyond when you read d n a together in one in your honor i have two responses when you read the two together first this our point about the prove a point about conditional statements that we make in the breeze which is that congress knows how to make a sentence and a statute conditional when it wants to and we see that that's what it did in section sixty three thirty second is that the  time we appeal is question there are other sections in the tax code such as those that apply to timely mailing is timely filing or being a soldier in a combat zone which are universally applicable exceptions to any limitation period  six which means that you may file late within the statutory period under the claims processing rule and still have time we filed your application additionally dramatically with respect to such matter does not modify the time period while sixty three thirty is phrased differently there is ambiguity about the meaning of the sentence within thirty days of a determination under this sentence is an appositive clause that modifies what the person may do and the with respect to such matter modifies that subject it does not additionally modify the a positive clause where ambiguity remains the clear statement will suggest that there is a strong presumption that this is not a jurisdictional clause and instead is a claims is a unique animal in our law and that any ambiguities with respect to the jurisdiction or lack thereof should be construed against the tax care your honor tax exceptionality seems to have fallen out of favor and although there are decisions like hearings here so the fact that these hacks screwed nate that he's been different does not mean that we should treat taxes different broadly especially because nothing about the trend in recent supreme court case law suggests that that's how we should be reading these have no jurisdiction to enjoin any action or proceedings unless the timely peerless been filed so then under your theory of the case the tax court would be able to unjoin any action or proceeding if the timely appeal of be filed but wouldn't have jurisdiction to enjoin an action or proceeding if the appeal had not been time and i guess what i'm saying and you're sure the last part what i'm saying is that the jurisdiction of the or to use it's in jumped to powers would depend on whether a timely appeal had been filed so people would be treated differently under your theory at the case depending on whether their appeal was timely the tax court could do certain things when a timely appeal was file and could do would only other things if the timely was not file isn't that true that you or your argument necessarily leads to the treatment of people differently with regard to the injunction powers of the tax court depending on whether the appeal was timely filed tonight your honor that's certainly possible but it is also have a serious why isn't that a serious defect in your argument so as congress surely didn't intend for people to be treated differently with regard to the jurisdiction to issue injunctions based on whether their appeal was timely first is because it's an equitable provision and so it could be that you can equitabl means that the appeal that may have been technically late filed was timely filed and so the appeal is still timely which means you could still have injunctive powers even if you didn't think that were true there would be one of the face of the language of the just the war you're better off under the law if you don't file a timely appeal and your theory of the case because the texas court would be stripped of jurisdiction to issue any injunctions because there had been no timely appeal but yet the what is the what's the rationale because you've got to have a rationale that explains that in order for your argument to fly you are our rationale is primarily that congress meant what it said and that in addition to that the way that the statute  timely appeal has been filed but the phrase timely appeal opens questions about what counts as an appeal which was time and we see that congress didn't write section sixty three thirty eat differently that route section sixty three thirty d one which means that even though they could have chosen to make both of those powers equivalent they did not the jurisdictional power is phrased in different language than the injunction power congress has to do something that a limits the ambiguity about sixty three appeal which could be deemed timely such as through apple tolling or under one of those provisions loses the ability to have an injunction issued against the other side so does that mean that the government can go ahead and take their money while they you can go ahead in filing or challenge to the government taking your money but p s because it was late we're going to let the government take your money before we decide the case that seems very odd your honor during the case the government would not be able to issue a levy on say your house however the tax court also has the ability to enjoin their ability to take your house or to let the other property after the case is ended which they would not have the right to do but they could compel other remedies for example when  requested her collection you process hearing she was attempting to negotiate a payment plan so the i r s had requested almost seven hundred dollars a month and she said i can't pay that let's talk about her collection due process petition to the tax court w court and the court should hold that sixty three thirty s he wants time when it is simply a claims processing rule and then determine the equitable tolling issues at a minimum you should hold that the statute  just to the tax court for a decision on whether miss cunningham was diligent in her file your questions about sixty three thirty or more seem to focus on whether or not the taxpayer was diligent such that their appeal could be deemed timely and whether jurisdiction under eat to issue injunctive really depends on whether there's been a timely firing your honor i see that my time has elapsed manser the question argument doesn't require that although it does allow reading the merits of any equitable tolling argument but what else i mean what other information were this court or the tax court have to consider in order to make that determination i thought i understood your argument  ely a question of the language of the letter having misled your client and others similarly situated so why with that issue need to be remanded to the tax court you are we certainly believe that you can decide that issue if you reach it in th opportunity to plead to her diligence at the tax court because her case was done with a motion to dismiss however if she did from time we file or she attempted to timely file and the language of the letter was misleading and that's our predominant argument  believe that that is sufficient to allow equitable tolling particularly since the irwin taste demonstrates that there is a presumption that affable tolling is allowed and the only question is whether equitable tolling is also appropriate ok thank you thank you circular as judge keenan and harris were pointing out today the threshold question is whether or not sixty three thirty d one is jurisdictional or not if it is jurisdictional we don't even need to address the does not or doesn't apply why can't we do that but i believe the supreme court has held that the court must address with a federal statute of limitations whether or not it is jurisdiction we have jurisdiction to hear this case we do have jurisdiction to hear the case so why couldn't we just if we thought that the case could be decided and i'm not saying we do but if we thought it could be decided on the narrow ground that there's just no case here for equitable whether or not the statute was jurisdictional and the tax court examining the recent supreme court case want to terminate that the text of the statute was clear the time limit is in the same sentence with the word shall have jurisdiction appellants have conceded that at least the parent federal information is a jurisdictional grant to the tax or in c cases and this morning as we've heard they also concede that each one which gives the tax court power to ensure injunctions in c d p cases is dependent on a timely appeal and a timely appeal specifically references and subsection he goes back to referencing subsection one which has the thirty day limitations also here the context of sixty three thirty d one again we have the one provision which this morning was conceded is jurisdictional it would have all sorts of a us results that if a timely petition is filed the tax court can enjoy but if a timely petition isn't filed the tax court would have no jurisdiction to review the commissioner notice of determination i think those positions are just an odd with one another and as judge keenan it kind of goes around in a circle and since east specifically refers to de one where it has the three day limitation and it's in the same sentence and given it is in a tax context the tax context is a little different than when you have veterans affairs or medicare which are typically very sympathetic to the plaintiffs in the situation here with the tax revenue the commissioner is charged with collecting revenue here the taxpayers are given their c d p rights here nine per month but that it would need to be a direct debit because you can imagine all sorts of problems where taxpayers don't send in checks or whatnot this is the way that the commissioner can make sure that the tax has an alternative does that go to the question two is it your position that that affects how we think of this sort of threshold jurisdictional question or does it go only to this question of whether assuming it's not jurisdictional it's subject to equitable tolling but you think it goes to both that even in considering the threshold question is this a jurisdictional limit or not we should it sort of pushes against the presumption that the supreme court has announced that the presumption is it's not yours to right because again  which were in the tax arena and against that contacts congress enacted the c d p statute i think the supreme court rejected that argument in a recent case and i can't remember the name but didn't the supreme court reject basically that argument that we sort of because this statute was an active before the supreme court articulated this presumption that these things are jurisdictional we should understand to tell the different meanings no no i understand that i understand that in two thousand and four of the sixty three thirty one was enacted in ninety eight but post two thousand and four this statute again was looked at by congress in two thousand and fifteen and they made certain amendments which really are relevant here but at the time congress made those amendments and i think there were also amendments in two thousand and six congress presumably knew what the judicial interpretations of that provision  circuit considering same supreme court case law basically the same analysis of that statute decided that the tax court's determination that the statutory grant of jurisdiction to the tax  look at sixty two thirteen a to the extent appellant is making the point that the sentence is unclear that the time and jurisdictional jurisdiction are connected sixty two thirteen it's three sentences apart so sixty two thirteen a talks about jurisdiction and then three sentences later it says within a ninety day period so they're not in the same sentence they're three sentences apart and the seventh circuit found that in those circumstances that it was clear what about the fact that the language regarding jurisdiction  that they're making here and they're both of those courts of appeals looked at the statute and it had and parent clavicle and tax courts will have jurisdiction in both of those cases the third circuit in the second circuit concluded that the text was clear it was explicit it used the specific word jurisdiction and the word jurisdiction was in the same sentence with t jurisdiction was in the parent chemicals so both of those courts of appeals looking at what they deemed to be similarly worded language came to that conclusion the governments of the viewpoint that the statute here is equally clear that the tax court only has jurisdiction if the taxpayer files within thirty days it just seems to me that anyone is that whole phrase it seems to me it arguably makes things a little murkier well and again i would finish the sentence you were reading from subsection where it says the attacks were chill have no jurisdiction under this paragraph a timely appeal is timely appeal is specifically referenced to the one which has the thirty day time period so given that d one says and shall have jurisdiction and the thirty day period there in the same sentence there proximately related and if you look at the same analysis with a comparable statute sixty two thirteen a again  context the history of every court of appeals to have addressed that matter have held that the provision is jurisdictional and the third circuit and the second second circuit and rubel in the a looking again at a similarly worded provision in section sixty fifty nine dealing with innocent spouse relief again the the jurisdiction grant was in a parent thought of all the third in the second circuit considering the same arguments believe that they were close enough related and again uses clear terms of jurisdiction there's no there's no guessing about that and they're in so such close proximity whether or not it's an apparent had a call i think is is really irrelevant to the determination it's in the same we don't think that the court really ever needs to get to the equitable tolling doctrine but just to the extent that the court has any questions on that i just would like to briefly say that while non jurisdictional filing briefs and claims decided that equitable tolling did not apply to that statute and the reasons given there by the supreme court are equally applicable here again the language collection matters and it would be really cumbersome and unworkable for the commissioner in every situation to have to go through different fact specific cases to see where a tax payer you know misconstrued or misread or here again i would suspect it's not in the record but may has thirty one taste so i'm wondering if mrs cunning if it had thirty days and she timely mailed it it would have been time we filed but it's got thirty one days and the day she mailed it just happened to be the thirty first day and this judge d s pointed out while there may be certain situations where there are untimely petitions and a host to them circumstances petitions to redetermination innocent spouse or whatever else the vast majority of tax payers understand that there is a deadline and there was nothing prohibiting miss cunningham she could have filed a petition on the twentieth day the twenty fifth day again she was kind of hedging her bet you know waiting so it would have been simple enough not to have any sort of which are you searching how do you know that i mean that's kind of an unfair characterization well it may have been an unfair characteristic but but again it would be simple enough had thirty days it's specifically said that the tax court would have no jurisdiction unless a timely petition was filed that that's in the record that's what goes out to other taxpayers sixty two thirteen a which again rejected these arguments found that it was jurisdictional in certain instances the commissioner has been pretty date on those here there's nothing in the stat requires that and again the vast majority of taxpayers as was pointed out the numbers were kind of staggering if only eight taxpayers in the last two years haven't filed a timely petition or you know every taxpayer who gets this is like i don't know what this means i have no idea when i'm so how exactly i count this so i'm just going to do it tomorrow right but that doesn't mean that this is clear that this letter is clear to all of those taxpayers because i have to say it wasn't entirely clear to you count thirty days mrs cunningham argument to skip the first day and jump the second day is contrary to the language of the tax or new rule i get i understand that on the merits she is not correct about the best reading of either the rule or the best reading of the rule but i'm simply saying why given that you are attaching jurisdictional consequences to people getting this thing in on time why doesn't the i r s just make clearer like either put in the is view that this is jurisdictional and in light of that why not just clarify it again we haven't been required to do so we've for years with the sixty two thirteen and i also believe it's in the context of the innocen we don't do that and if you if you jump over to district court cases which i don't want to get to sign line but again a lot of times if you look at it ministry of terminations there they don't give us that death on here again the statute is clear she had thirty days from the date it was mailed there's no dispute she concedes her petition was late filed and the tax or simply did not have jurisdiction and thank you i'd like to quickly move through a few points the first is to clarify our previous discussion about section eight which is that if something is not timely filed then the court can't do anything but if you told it then the e want to appeal is time because it  poker of those cases on whether the parties were using the term jurisdictional loosely or whether courts are using the term loosely the question is about whether courts are using the term loosely and in specifically they were just saying that just because it's apps doesn't mean we need to look at it any differently i'd like to talk quickly about the rouble and get to that cases because they were analyzing the innocent spouse statute which is section sixty fifteen the appositive phrase rather the both modifying an earlier part of the sentence now additionally equitable tolling is appropriate here miss cunningham was actually right behind me is an intelligent woman she knows that there are thirty one days and m she could not however file on the twentieth day because she didn't even receive the letter until the twenty first day because it had been sent by certified mail which is a fact that would be pled if it were returned to the tax court additionally ms cunningham would provide evidence that the i r s does not use this language anywhere else it doesn't not track the statute here and so there is no reason that it uses this misleading language it may have been implemented to try to fix the error where the taxpayer files on the twenty ninth day thinking it's the thirtieth day but that seems like a much less dangerous problem that when the taxpayer thinks the thirtieth day but it's thirty first as your question on this equitable tolling thing the thing that is hard for me is when we hear so many cases where the consequences are so severe i mean people are sitting in prison and we say there he is petition is coming a day late because they miscounted and we don't say that's not equitable tolling the fact that you miscounted is not grounds for equitable tolling misread it as it turns out she read the letter along and knew usually we say that is not by itself grounds for equitable tolling your honor we think that the language of the letter is even if inadvertently easily read the way that  least consider doing so here all right thank you thank you very much will come down and greet counsel and then we'll take a very brief