United States Court of Appeals

For the Eighth Circuit

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No. 19-2003

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Boechler, P.C.

 Appellant

v.

Commissioner of Internal Revenue

 Appellee

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The Federal Tax Clinic of the Legal Services Center of Harvard Law School

 Amicus on Behalf of Appellant(s)

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Appeal from The United States Tax Court

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 Submitted: June 17, 2020

Filed: July 24, 2020

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Before KELLY, ERICKSON, and STRAS, Circuit Judges. 

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ERICKSON, Circuit Judge.
Boechler, P.C. (“Boechler”) filed a petition for review of a notice of

determination fromthe Commissioner of Internal Revenue (“IRS”). Under 26 U.S.C.

§ 6330(d)(1), a party has 30 days to file a petition for review. Boechler filed one day

after the filing deadline had passed. The tax court1dismissed the petition on the

ground that it lacked jurisdiction because the petition was untimely. We have

jurisdiction under 26 U.S.C. § 7842 and we affirm. 

I. Background

On June 5, 2015, the IRS sent Boechler a letter noting a discrepancy between

prior tax document submissions. The IRS did not receive a response and imposed a

10% intentional disregard penalty. Boechler did not pay the penalty. The IRS mailed

Boechler a notice of intent to levy. Boechler timely requested a Collection Due

Process (“CDP”) hearing but failed to establish grounds for relief on the discrepancy

or the unpaid penalty. On July 28, 2017, the Office of Appeals mailed a

determination sustaining the levy to Boechler’s last known address in Fargo, North

Dakota. The notice of determination, delivered on July 31, stated that Boechler had

30 daysfromthe date of determination, i.e. until August 28, 2017, to submit a petition

for a CDP hearing.

Boechler mailed a petition for a CDP hearing on August 29, 2017, one day

after the 30-day filing deadline had expired. The United States Tax Court received

Boechler’s untimely petition and the IRS moved to dismiss for lack of jurisdiction. 

Boechler objected, arguing that the 30-day time limit in 26 U.S.C. § 6330(d)(1) is not

jurisdictional, the time limitshould be equitably tolled, and calculating the time limit

1The Honorable Lewis R. Carluzzo, Chief Special Trial Judge, United States

Tax Court.

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from issuance rather than receipt violates due process. The tax court dismissed the

petition for lack of jurisdiction. Boechler appealed.

II. Discussion

We review questions of the tax court’s subject matter jurisdiction de novo. 

Martin S. Azarian, P.A. v. Comm’r, 897 F.3d 943, 944 (8th Cir. 2018). The tax court

is an Article I court and as such it is a court with “strictly limited jurisdiction.” 

Bartman v. C.I.R., 446 F.3d 785, 787 (8th Cir. 2006) (quoting Kelley v. Comm’r, 45

F.3d 348, 351 (9th Cir. 1995)). The Supreme Court has “repeatedly held that filing

deadlines ordinarily are not jurisdictional” but instead are usually “quintessential

claim-processing rules.” Sebelius v. Auburn Reg. Med. Ctr., 568 U.S. 145, 154

(2013) (internal quotation marks omitted). That said, a rule that “governs a court’s

adjudicatory capacity” is jurisdictional and “[o]ther rules, even if important or

mandatory . . . should not be given the jurisdictional brand.” Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 435 (2011). 

We address first the threshold issue of whether the 30-day time limit in 26

U.S.C. § 6330(d)(1) is jurisdictional. The statute provides:

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). 

A few years ago, this court considered § 6330 in the context of whether the tax

court’s jurisdiction over original notices of determination extended to supplemental

notices. Hauptman v. C.I.R., 831 F.3d 950, 952–53 (8th Cir. 2016). In Hauptman,

the panel identified two prerequisites for jurisdiction over an initial notice of

determination: (1) the issuance of a notice of determination following a CDP hearing,

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and (2) the taxpayer’s filing of a petition challenging that determination within 30

days of the issuance date. Id. at 953 (citing Gillum v. Comm’r, 676 F.3d 633, 647

(8th Cir. 2012); Gray v. Comm’r, 723 F.3d 790, 793 (7th Cir. 2013)); see Tschida v.

C.I.R., 57 F. App’x. 715, 715–16 (8th Cir. 2003) (per curiam) (unreported) (holding

that the failure to comply with § 6330(d)(1) deprived the tax court of jurisdiction). 

Because neither of these factors were at issue in Hauptman the court rejected the

argument that the tax court lacked jurisdiction to review supplemental notices. 

Hauptman, 831 F.3d at 953.

Although the IRS argues that we are bound by Hauptman and required to find

§ 6330(d)(1) jurisdictional, Hauptman simply did not address jurisdictional issues

raised by an untimely filing of a petition. Instead, the gravamen of the holding was

limited to the question of whether the tax court’s jurisdiction extended to

supplemental notices of determination. While persuasive, the jurisdictional test laid

out in Hauptman was obiter dicta addressing an issue not before the court. See

Sanzone v. Mercy Health, 954 F.3d 1031, 1039 (8th Cir. 2020) (“Dicta is a judicial

comment made while delivering a judicial opinion, but one that is unnecessary to the

decision in the case and therefore not precedential.”) (cleaned up). As we are not

bound by the dicta of another panel, we must determine if the filing deadline in §

6330(d)(1) is jurisdictional. See id.

As a general principle, a statutory time limit is jurisdictional when Congress

clearly statesthat it is. Musacchio v. United States, 136 S. Ct. 709, 717 (2016). Mere

proximity to a jurisdictional provision is insufficient. See Sebelius, 568 U.S. at

155–56 (stating that an otherwise non-jurisdictional provision does not become

jurisdictional “simply because it is placed in a section of a statute that also contains

jurisdictional provisions”). “Congress must do something special, beyond setting an

exception-free deadline, to tag a [time limit] as jurisdictional and so prohibit a court

from tolling it.” United States v. Kwai Fun Wong, 575 U.S. 402, 410 (2015). Even

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so, Congress does not have to “incant magic words” to make a deadline jurisdictional

if the “traditional tools of statutory construction . . . plainly show that Congress

imbued a procedural bar with jurisdictional consequences.” Id. We determine

whether Congressmade the necessary clear statement by examining “the text, context,

and relevant historical treatment of the provision at issue.” Musacchio, 136 S. Ct. at

717 (internal quotation marks omitted).

Boechler, relying on Myers v. Commissioner, asserts § 6330(d)(1) is nonjurisdictional. See 928 F.3d 1025 (D.C. Cir. 2019). In Myers, the D.C. Circuit

examined whether an untimely filing under 26 U.S.C. § 7623(b)(4), which includes

an identically worded parenthetical asthe one found in § 6330, deprived the tax court

of jurisdiction.

2

Id. at 1033–36. The Myers court noted that § 7623(b)(4) “comes

closer to satisfying the clear statement requirement than any the Supreme Court has

heretofore held to be non-jurisdictional.” Myers, 928 F.3d at 1035. However, the

court ultimately held that the statute did not “condition[] the jurisdictional grant on

the limitations period, or otherwise link[] those separate clauses.” Id. The D.C.

Circuit determined that there was no clear statement that the 30-day limit in §

7623(b)(4) was jurisdictional; instead, it held that the limit was merely in close

proximity to jurisdictional terms referring to the general appeal, not a timely-filed

appeal. Id. at 1035.

The IRS directs our attention to the Ninth Circuit’s decision in Duggan v.

Commissioner, 879 F.3d 1029 (9th Cir. 2018), which held that § 6330(d)(1) is

jurisdictional. In that case, the plaintiff also filed his petition for review one day after

the filing deadline. Id. at 1031. The Ninth Circuit determined that § 6330(d)(1)

2Section 7623(b)(4) provides: Any determination regarding an award under

paragraph (1), (2), or (3) may, within 30 days of such determination, be appealed to

the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter).

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“expressly contemplatesthe Tax Court’sjurisdiction” and “makestimely filing of the

petition a condition of the Tax Court’sjurisdiction.” Id. at 1034. The court explained

that it was significant that “the filing deadline is given in the same breath as the grant

of jurisdiction.” Id. In reaching the conclusion that § 6330(d)(1) isjurisdictional, the

Ninth Circuit noted “the test is whether Congress made a clear statement, not whether

it made the clearest statement possible.” Id.

We find the Ninth Circuit’s analysis persuasive. The statutory text of §

6330(d)(1) is a rare instance where Congress clearly expressed its intent to make the

filing deadline jurisdictional. The provision states: The person may, within 30 days

of a determination under this section, petition the Tax Court for review of such

determination (and the Tax Courtshall have jurisdiction with respect to such matter). 

26 U.S.C. § 6330(d)(1). The parenthetical “(and the Tax Courtshall have jurisdiction

with respect to such matter)” is clearly jurisdictional and rendersthe remainder of the

sentence jurisdictional. See Fort Bend Cty. v. Davis, 139 S. Ct. 1843, 1849 (2019).

A plain reading demonstrates that the phrase “such matter” refers to a petition

to the tax court that: (1) arises from “a determination under this section” and (2) was

filed “within 30 days” of that determination. See Myers, 928 F.3d at 1039

(Henderson, J., dissenting) (reaching the same conclusion when analyzing the

identically worded parenthetical in § 7623(b)(4)); see also 26 U.S.C. § 6330(e)(1)

(“The Tax Court shall have no jurisdiction under this paragraph to enjoin any action

or proceeding unless a timely appeal has been filed under subsection (d)(1). . .”). 

Unlike other statutory provisionsthat have been found to be non-jurisdictional by the

Supreme Court, § 6330(d)(1) speaks “in jurisdictional terms.” Musacchio, 136 S. Ct.

at 717 (finding 18 U.S.C. § 3282(a) non-jurisdictional). The use of “such matter”

“plainly show[s] that Congress imbued a procedural bar with jurisdictional

consequences.” Kwai Fun Wong, 575 U.S. at 410. This phrase provides the link

between the 30-day filing deadline and the grant of jurisdiction to the tax court that

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other statutory provisions lack. Cf. Henderson, 562 U.S. at 438 (finding that a 120-

day deadline “[i]n order to obtain review” “does not speak in jurisdictional terms or

refer in any way to the jurisdiction of the Veterans Court”); Gonzalez v. Thaler, 565

U.S. 134, 146–47 (2012) (rejecting the argument that placing a provision in a section

containing jurisdictional provisionsmakesit jurisdictional); Sebelius,568 U.S. at 154

(finding that the language “may obtain a hearing” does not speak in jurisdictional

terms). While there might be alternative ways that Congress could have stated the

jurisdictional nature of the statute more plainly, it has spoken clearly enough to

establish that § 6330(d)(1)’s 30-day filing deadline is jurisdictional.

3 See Duggan,

879 F.3d at 1034; Sebelius, 568 U.S. at 153.

Boechler also contends that counting the 30-day filing deadline from the date

of determination rather than the date of receipt is a violation of due process or equal

protection under the Fifth Amendment. We review this question of law de novo. See

Linn Farms and Timber Ltd. P’ship v. Union Pac. R. Co., 661 F.3d 354, 357 (8th Cir.

2011). To satisfy due process, the government must “provide owners notice and

opportunity for hearing appropriate to the nature of the case.” Id. (internal quotation

marks omitted). “The Supreme Court has long held that when the [government]

chooses to regulate differentially, with the laws falling unequally on different

geographic areas . . . the Equal Protection Clause is not violated so long as there is

no underlying discrimination against particular persons or groups. The Equal

Protection Clause protects people, not places.” Reeder v. Kansas City Bd. of Police

Comm’rs, 796 F.2d 1050, 1053 (8th Cir. 1986).

3Because we hold that § 6330(d)(1) is jurisdictional, Boechler is not entitled

to equitable tolling. See Kwai Fun Wong, 575 U.S. at 408–09 (holding that a

litigant’s failure to comply with a jurisdictional bar deprives a court of all authority

to hear a case even if equitable considerations would support extending the prescribed

time period).

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A statutory time limit challenged as an arbitrary and irrational classification

that violates due process or equal protection, which does not draw a suspect

classification or violate a fundamental right, need only be supported by a rational

legislative purpose. See Holder v. Gonzales, 499 F.3d 825, 830–31 (8th Cir. 2007)

(rejecting claim that a law requiring appeals to be filed in Virginia violated equal

protection because non-Virginians are not a protected class); see also United States

v. Prior, 107 F.3d 654, 660–61 (8th Cir. 1997) (applying rational basis review to

criminal defendant’s challenge to statute of limitations as arbitrary in violation of

Fifth Amendment). A statutory time period’s starting point satisfies rational basis

review if it promotes an agency’s “fiscal integrity” by insuring a workable deadline

and reasonable timeframe. See Boyd v. Bowen, 797 F.2d 624, 626–27 (8thCir. 1986)

(upholding SSA statute of limitations requiring application be made within six

months after children reached age of majority). Boechler bears the burden to

establish that the filing deadline in § 6330(d)(1) is arbitrary and irrational. Lundeen

v. Canadian Pac. R. Co., 532 F.3d 682, 689–90 (8th Cir. 2008).

Boechler argues that the 30-day filing deadline is arbitrary and irrational

because it is calculated from the date of determination rather than the date of receipt

via certified mail and such a calculation method may result in a 2- or 3-day

discrepancy in receipt date depending on where the taxpayer lives in relation to an

IRS mailer. However, calculating the filing deadline from the date of determination

streamlines and simplifies the complex undertaking of enforcing the tax code. If the

IRS were required to wait 30 days from the date that each individual received notice,

it would be unable to levy at the statutory, uniform time. Calculating from the date

of determination guards against taxpayers refusing to accept delivery of the notice

and promotes efficient tax enforcement by ensuring a reasonable and workable

timeframe and deadline. Based on these rational reasons for the calculation method,

andBoechler’sinability to identify any actual discrimination or discriminatory intent,

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the 30-day filing deadline from the date of determination does not violate the Fifth

Amendment.

III. Conclusion

For the foregoing reasons, we affirm. 

KELLY, Circuit Judge, concurring in part and concurring in the judgment.

In 2003, we squarely held that the 30-day filing deadline in 26 U.S.C.

§ 6330(d)(1) is jurisdictional. See Tschida v. Comm’r, 57 F. App’x 715, 715–16

(8th Cir. 2003) (concluding that “the untimely filing deprived the tax court of

jurisdiction”). As an unpublished per curiam opinion, Tschida is not binding

precedent, but it is relevant insofar as it has persuasive value. See 8th Cir. R. 32.1A;

White v. NFL, 756 F.3d 585, 595 (8th Cir. 2014).

Thirteen years after Tschida was decided, we reached the same conclusion in

a published opinion. We explained that, as a “prerequisite[] to the tax court’s

exercise of jurisdiction,” “the taxpayer must file a petition challenging [a notice of]

determination within thirty days after the determination is issued.” Hauptman v.

Comm’r, 831 F.3d 950, 953 (8th Cir. 2016) (cleaned up). To support this conclusion,

we cited a Seventh Circuit opinion holding that “[u]nless a taxpayer fulfills the

statutory prerequisites for invoking the Tax Court’s jurisdiction, including filing a

timely petition under section 6330(d)(1), the court must dismiss a petition for lack of

jurisdiction.” See Gray v. Comm’r, 723 F.3d 790, 793 (7th Cir. 2013).4

4Hauptman and Gray were decided after the Supreme Court had adopted a

clear-statement rule and “repeatedly held that filing deadlines ordinarily are not

jurisdictional.” See Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 154 (2013)

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The court concludes that our statement in Hauptman was dicta because

“the gravamen of [Hauptman’s] holding was limited to the question of whether the

tax court’s jurisdiction extended to supplemental notices of determination,” not

original notices of determination. Ante at 4. But the taxpayer’s argument in

Hauptman was that the tax court lacked jurisdiction. In resolving that issue, we

decided that(1) the tax court had jurisdiction over the original notice of determination

and (2) there were no additional requirements for the tax court to acquire jurisdiction

over the supplemental notices. See Hauptman, 831 F.3d at 953. I do not think we

could have found there was jurisdiction over the supplemental notices without also

finding there was jurisdiction over the original notice. See id. (noting that “the same

jurisdictional prerequisites apply” to both original and supplemental notices). 

And we explicitly found that the tax court had jurisdiction over the original notice

because both jurisdictional prerequisites were satisfied. See id. Although this issue

was not contested by the parties, I believe it was necessary to our decision. See

Sanzone v. Mercy Health, 954 F.3d 1031, 1039 (8th Cir. 2020) (stating that dicta is

“a judicial comment . . . that is unnecessary to the decision” (cleaned up)).

As the court notes, deeming the 30-day filing deadline in 26 U.S.C. §

6330(d)(1) jurisdictional is an unusual departure from the ordinary rule that filing

deadlines are “quintessential claim-processing rules.” See Henderson ex rel.

Henderson v. Shinseki, 562 U.S. 428, 435 (2011). This may have “drastic”

consequences for litigants, id., and I am concerned the burden may fall

disproportionately on low-income taxpayers, as the amicus suggests. I am not

convinced the statute contains a sufficiently clear statement to justify this result. 

See Myers v. Comm’r, 928 F.3d 1025, 1036 (D.C. Cir. 2019) (holding that the “nearly

identical” filing deadline in 26 U.S.C. § 7623(b)(4) is not jurisdictional). But in light

of our long-standing precedent, I concur in the court’s judgment.

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(collecting cases).

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