FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SNJ LIMITED; RITCHIE N. STEVENS;

JULIE A. KEENE-STEVENS,

Petitioners-Appellants,

v.

COMMISSIONER OF INTERNAL 

REVENUE,

Respondent-Appellee.

No. 20-70902

Tax Ct. No.

11284-18

OPINION

Appeal from a Decision of the

United States Tax Court

Argued and Submitted November 17, 2021

Pasadena, California

Filed March 10, 2022

Before: Jay S. Bybee and Mark J. Bennett, Circuit Judges, 

and Joseph F. Bataillon,* District Judge.

Opinion by Judge Bennett;

Concurrence by Judge Bataillon

* The Honorable Joseph F. Bataillon, United States District Judge 

for the District of Nebraska, sitting by designation.
2 SNJ LIMITED V. CIR

SUMMARY**

Tax

The panel affirmed the Tax Court’s dismissal for lack of 

jurisdiction of Ritchie N. Stevens and Julie A. KeeneStevens’s untimely petition for redetermination of federal 

income tax deficiencies for the partnership SNJ Limited 

(“SNJ”). 

In 2017 and 2018, the Commissioner of Internal 

Revenue issued SNJ Notices of Final Partnership 

Administrative Adjustment (“FPAA”) for tax years 2006 

and 2008, addressed to various individuals or entities at two 

different addresses. The only material difference between 

the 2017 FPAAs and the 2018 FPAAs was that the latter 

corrected the name of the partnership on the schedules of 

adjustments attached to the FPAAs. Appellants petitioned 

the Tax Court for a redetermination of federal income tax 

deficiencies for those years, and the Tax Court dismissed the 

petition as untimely because Appellants failed to petition 

within 150 days of November 1, 2017, when the 

Commissioner issued the first FPAA. 

Appellants argued that their petition was timely because 

Internal Revenue Code (“I.R.C.”) § 6223(f) barred the 

Commissioner from issuing more than one FPAA pertaining 

to a partnership’s taxable year, and the last FPAA issued by 

the Commissioner on March 6, 2018, was the only valid 

FPAA. The panel concluded that the FPAA issued on 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SNJ LIMITED V. CIR 3

November 1, 2017, was the only valid FPAA, and that 

Appellants’ petition was therefore untimely. 

First, the panel rejected Appellants’ argument that the 

2017 FPAAs were invalid because they were sent to the 

wrong addresses. Appellants argued that the FPAAs sent to 

one address – the “Troon address” – were invalid because 

Appellants had not lived there for a number of years. The 

panel rejected this argument, explaining that Appellants’ 

petition stated that they “at all times herein had a legal 

residence” at the Troon address, and that SNJ’s unsigned 

partnership returns for 2006 and 2008, which were sent in 

2014 and 2016, listed the Troon address. The panel agreed 

with the Tax Court that the Commissioner was allowed, 

though not required, to use information provided on the 

unsigned returns, even though the unsigned returns did not 

comply with the applicable regulations. 

Appellants also argued that the 2017 FPAAs sent to 

another address – the “Eastern address” – were invalid 

because they were addressed only to the “tax matters 

partner” (“TMP”) and not a named person. The panel 

rejected this argument as foreclosed by Chomp Assocs. v. 

Comm’r, 91 T.C. 1069 (1988). The panel also observed that 

Appellants did not dispute that they used the Eastern address 

in their filings in another case involving their individual 

income tax liability. The panel wrote that the Internal 

Revenue Service is not limited to relying on information 

included in a partnership return or other statements, and 

instead may use other information in its possession in 

administering of the Internal Revenue Code. 

Appellants also argued that the Commissioner knew (or 

should have known) to send the FPAAs to their address in 

Utah or to SNJ’s agent in Nevada, because that address was 
4 SNJ LIMITED V. CIR

used in two prior Tax Court cases, the Commissioner’s 

attorney in those cases was the same one involved in the 

present case, the Commissioner previously issued a tax 

refund to Ritchie Stevens at the Utah address, and SNJ had 

a registered agent in Nevada. The panel rejected these 

arguments, explaining that the Commissioner was not 

obligated to use or search for any of that information, and 

that Appellants provided no evidence that they furnished 

their preferred addresses to the Commissioner in the legally 

required manner. 

Appellants next argued that the first 2017 FPAA was 

void, under I.R.C. § 6231(a)(3), because it was sent before 

expiration of the waiting period triggered by notice of the 

beginning of administrative proceedings under I.R.C. 

§ 6223(d)(1). The panel rejected this argument, concluding 

that an August 1, 2017, letter sent to the partnership with a 

summary report did not constitute notice of the beginning of 

administrative proceedings under I.R.C. § 6223(d)(1), and 

thus did not start the waiting period.

Appellants argued that the 2017 FPAAs were invalid 

because they were superseded by the 2018 FPAAs. The 

panel wrote that simply incorrectly or unnecessarily sending 

a second FPAA does not equal fraud, malfeasance, or a 

misrepresentation of a material fact under I.R.C. § 6223(f), 

and thus does not necessarily invalidate the first set of 

FPAAs. Because Appellants offered nothing more, the panel 

concluded that the FPAAs issued on November 1, 2017, 

were valid, the 2018 FPAAs were invalid, and the Tax Court 

properly dismissed Appellants’ petition as untimely. 

Appellants also argued for the first time on appeal that 

the filing deadline in I.R.C. § 6226 was not jurisdictional and 

that they were entitled to equitable tolling. The panel 
SNJ LIMITED V. CIR 5

observed that Appellants forfeited both claims by failing to 

raise them, or explain why they failed to raise them, before 

the Tax Court. However, because Appellants’ contention 

concerned a significant jurisdictional issue, the panel 

exercised its discretion to reach it. The panel held that the 

filing deadline in I.R.C. § 6226 is jurisdictional and cannot 

be equitably tolled.

Judge Bataillon wrote separately to concur in the result, 

but did not believe that the Court needed to address 

jurisdictional/equitable tolling issue.

COUNSEL

Fritz Jay Firman (argued), Costa Mesa, California, for 

Petitioners-Appellants.

Pooja Boisture (argued), Jacob Christensen and Marion 

E.M. Erickson, Attorneys; David A. Hubbert, Deputy 

Assistant Attorney General; Tax Division, United States 

Department of Justice, Washington, D.C.; for RespondentAppellee.
6 SNJ LIMITED V. CIR

OPINION

BENNETT, Circuit Judge:

On June 7, 2018, appellants Ritchie N. Stevens and Julie 

A. Keene-Stevens petitioned the Tax Court for a 

redetermination of 2006 and 2008 federal income tax 

deficiencies for the partnership SNJ Limited (“SNJ”). The 

Tax Court dismissed because appellants failed to petition 

within 150 days of November 1, 2017, when the 

Commissioner of Internal Revenue (“Commissioner”) 

issued the first Notices of Final Partnership Administrative 

Adjustment (“FPAA”). Appellants argue that their petition 

was timely because Internal Revenue Code (“I.R.C.”) 

§ 6223(f) barred the Commissioner from issuing more than 

one FPAA pertaining to a partnership’s taxable year, and the 

FPAA issued by the Commissioner on March 6, 2018 was 

the only valid FPAA. Appellants also argue that I.R.C.

§ 6226’s filing deadline is not jurisdictional, and that they 

are entitled to equitable tolling. We have jurisdiction under 

26 U.S.C. § 7482(a)(1) and affirm.1

I.

The Tax Equity and Fiscal Responsibility Act 

(“TEFRA”), Pub. L. No. 97–248, § 402, 96 Stat. 324, 648 

(1982) required that the tax treatment of partnership items be 

determined in partnership-level proceedings that are 

generally binding on all partners. A partnership may identify 

a tax matters partner (“TMP”) who will represent the 

1 Although appellants make a due process argument in their reply 

brief, this argument is deemed waived because it was not raised in the 

opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) 

(“[O]n appeal, arguments not raised by a party in its opening brief are 

deemed waived.”).
SNJ LIMITED V. CIR 7

partnership in these proceedings. See 26 C.F.R. 

§ 301.6231(a)(7)–1; United States v. Woods, 571 U.S. 31, 39 

(2013). Although the Bipartisan Budget Act of 2015, Pub. 

L. No. 114–74, 129 Stat. 584 (2015) repealed TEFRA 

effective after December 31, 2017, TEFRA’s provisions 

govern here because this case concerns SNJ’s partnership 

returns for 2006 and 2008.2

The Commissioner must mail an FPAA to the TMP and 

to other partners entitled to notice. I.R.C. § 6223(a)(2). If 

the Commissioner makes adjustments to partnership items 

with which the partnership disagrees, the TMP can petition 

the Tax Court, federal district court, or the Court of Federal 

Claims for readjustment of the partnership items within 90 

days after the FPAA is mailed to the TMP. I.R.C. § 6226(a). 

If the TMP does not timely file, non-TMP partners have an 

additional 60 days to file such a petition. I.R.C. 

§ 6226(b)(1).

On November 1, 2017, the Commissioner mailed FPAAs 

for 2006 and 2008, addressed to the “Tax Matters Partner of 

SNJ, LTD.” Each FPAA was sent to two addresses: 2090 

Troon Dr., Henderson, NV (“Troon address”) and 3980 S. 

Eastern Ave., Las Vegas, NV (“Eastern address”). On 

December 18, 2017, the Commissioner mailed the same set 

of FPAAs to the Troon address.3 Although some of the 

2 To avoid confusion, this Opinion cites Title 26 of the United States 

Code prior to TEFRA’s repeal as “I.R.C.” and Title 26 after the repeal 

as “26 U.S.C.”

3 Although the Commissioner claims that “[o]n December 18, 2017, 

the Commissioner issued FPAAs . . . to the partners other than the tax 

matters partner by certified mail to appellants at both the Eastern Ave. 

and the Troon Dr. addresses,” the record shows that these FPAAs were 

mailed only to the Troon address.
8 SNJ LIMITED V. CIR

December 18, 2017 FPAAs were addressed to “RNS 

FAMILY IRREVOCABLE TR[UST]” instead of SNJ, the 

December 18, 2017 FPAAs were addressed to Ritchie 

Stevens or Ritchie Stevens and “J A Keen-Stevens” (in 

apparent reference to appellant Julie A. Keene-Stevens). 

The schedules of adjustments attached to the 2017 FPAAs 

sometimes referred to “RNS, LTD” as the partnership but 

listed SNJ’s taxpayer identification number. On February 1, 

2018, the Commissioner sent a second set of FPAAs, 

addressed to SNJ’s TMP, to both addresses. On March 6, 

2018, the Commissioner sent the 2018 FPAAs to the Eastern 

address, one set addressed to Ritchie Stevens and another set 

addressed to both Ritchie Stevens and J A Keen-Stevens. 

The only material difference between the 2017 FPAAs and 

the 2018 FPAAs is that the 2018 FPAAs corrected the name 

of the partnership on the schedules of adjustments attached 

to the FPAAs.

On June 7, 2018, appellants filed a petition with the Tax 

Court requesting a redetermination of the SNJ deficiencies, 

with the March 6, 2018 FPAAs attached to the petition. The 

Commissioner moved to dismiss, arguing that the Tax Court 

lacked jurisdiction pursuant to I.R.C. § 6226 because 

appellants failed to petition within 150 days of November 1, 

2017, the date when the Commissioner issued the first 

FPAAs. Appellants argued that “any notice in regard to 

partnership determinations was invalid from the inception” 

because, among other reasons, the FPAAs were sent to the 

wrong addresses. Appellants also argued that the 

Commissioner “had every opportunity at trial . . . on 

December 5, 2017, to ask about the[ir preferred] address . . .

while Petitioner Ritchie N. Stevens[] was a witness” in other 

proceedings before the Tax Court. Appellants never claimed 

that I.R.C. § 6226 was not jurisdictional or that they were 

entitled to equitable tolling.
SNJ LIMITED V. CIR 9

The Tax Court began its analysis with the FPAAs. “[I]f 

the November 2017 FPAAs were valid, the February 2018 

FPAAs were not,” and “the November 2017 FPAAs were 

not invalid . . . .” Although appellants had never filed SNJ’s 

signed partnership returns for 2006 and 2008, they sent the 

Commissioner unsigned returns for 2006 and 2008 

respectively in 2014 and 2016, listing the Troon address as 

the partnership address. The Tax Court held that, although 

I.R.C. § 6223(c) required the Commissioner to mail any 

FPAA to the addresses provided in the partnership’s returns, 

appellants had not provided signed returns, and the 

applicable regulations permitted the Commissioner to “use 

the information provided on the unsigned partnership returns 

. . . in determining where to mail the FPAAs for the years in 

issue.”

Appellants claimed that notices sent to the Troon address 

were invalid because they had not lived there for “a great 

number of years.” As for the Eastern address, appellants 

claimed that it was “not the address of any partnership . . .

but . . . the address of the ‘medical facility’ in Las Vegas.” 

Appellants also noted that the notices addressed to the TMP 

at the Eastern address were not directed to any named 

person. The court stated that it “accepted the validity of 

FPAAs addressed generically to a partnership’s [TMP] that 

do not specifically name that partner,” citing Chomp Assocs. 

v. Comm’r, 91 T.C. 1069, 1073 (1988) (“[S]ection 6223 does 

not require that a specific TMP be enumerated on the 

FPAA.”). The court also found that, despite appellants’ 

claim that the Eastern address was a medical facility, 

appellants attached to their petition the 2018 FPAA sent to 

the Eastern address, indicating that they could receive mail 

at the Eastern address.
10 SNJ LIMITED V. CIR

Because the petition was filed more than 150 days after 

the Commissioner mailed the only valid FPAAs, the Tax 

Court dismissed the case for lack of jurisdiction (titling its 

order, “Order of Dismissal For Lack of Jurisdiction”): 

“Leaving aside the defects in the form of petitioners’ 

petition, because they did not file it within 150 days after the 

date on which respondent mailed to SNJ’s tax matters 

partner the only valid FPAAs covering the taxable years in 

issue, their petition was untimely. Consequently, we do not 

have jurisdiction over the present case.”

Appellants moved to reconsider, arguing that the 

Commissioner knew or should have known to send the 

FPAAs to an address in Park City, Utah or to SNJ’s resident 

agent in Nevada. The motion to reconsider disclaimed the 

statement in the petition that the Troon address was the 

appellants’ legal residence “at all times herein,” and 

“apologized to th[e] court for any confusion caused 

thereby.” Appellants also claimed that the Commissioner 

had violated a waiting period of 270 days required by 26 

U.S.C. § 6231(a)(3) before sending the FPAAs. The court 

denied the motion, finding that appellants failed to 

“establish[] that they provided a Park City address to 

respondent in any manner.” The court also rejected the 

Nevada “resident agent” and “waiting period” claims, 

because those claims relied on 26 U.S.C. §§ 6223, 6231 as 

amended in 2015 instead of I.R.C. § 6223, which applied to 

SNJ’s partnership returns for 2006 and 2008.

II.

“Conclusions of law, including the Tax Court’s 

interpretation of the Internal Revenue Code, are reviewed de 

novo. Whether the Tax Court has subject matter jurisdiction 

is a question of law and thus reviewed de novo.” Adkison v. 

Comm’r, 592 F.3d 1050, 1052 (9th Cir. 2010) (citation 
SNJ LIMITED V. CIR 11

omitted). “We review the Tax Court’s factual 

determinations . . . for clear error.” Est. of Trompeter v. 

Comm’r, 279 F.3d 767, 770 (9th Cir. 2002). “Under the 

clear error standard, we will reverse the tax court only when 

we are ‘left with the definite and firm conviction’” that the 

Tax Court’s factual findings were wrong. Maciel v. 

Comm’r, 489 F.3d 1018, 1027 (9th Cir. 2007) (citation 

omitted). To have such a definite and firm conviction, we

must find that the Tax Court’s conclusion was “(1) illogical, 

(2) implausible, or (3) without support in inferences that may 

be drawn from the facts in the record.” United States v. 

Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

III.

A.

Appellants first argue that the 2017 FPAAs are invalid 

because they were sent to the wrong addresses. Appellants 

claim that the Troon address is incorrect because, while they 

lived there in 2006 and 2008, they no longer lived there in 

2017 and 2018. But appellants’ petition stated that they “at 

all times herein had a legal residence” at the Troon address, 

and SNJ’s unsigned partnership returns for 2006 and 2008, 

which were sent in 2014 and 2016, listed the Troon address. 

As the Tax Court found, “the Commissioner [was] allowed, 

though not required” to use information provided on the 

unsigned returns, even though the unsigned returns “did not 

comply with” the applicable regulations. See 26 C.F.R. 

§ 301.6223(c)–1. Appellants’ claim that the Troon address 

was invalid lacks merit.

Appellants argue that the Eastern address is invalid with 

respect to the 2017 FPAAs but not the 2018 FPAAs. While 

appellants state that “[t]he March 6, 2018 FPAA Notice [sent 

to the Eastern address] was sent properly,” they argue that 
12 SNJ LIMITED V. CIR

the FPAA sent to the same address on November 1, 2017 

was invalid because it was addressed only to the “TMP” and 

not to a named person. Appellants allege that the Eastern 

address is a medical facility where SNJ “does not have an 

office” and, “[w]ithout a name to connect SNJ to a person 

. . . at the medical office, neither the postal carrier nor 

anyone opening up the mail [there] would have anyway [sic] 

to deliver the November 1, 2017 FPAA to Mr. or Ms. 

Stevens.”

But Chomp explained that FPAAs need only provide 

“‘minimal’ or adequate notice” because “[t]he concept of a 

TMP is . . . part of the partnership audit procedures which 

are to provide efficiency, convenience and economy to the 

tax system.” 91 T.C. at 1074. Chomp held that “section 

6223 does not require that a specific TMP be enumerated on 

the FPAA” and an FPAA addressed to a TMP “provided 

adequate, or ‘minimal’ notice, as contemplated under 

[§] 6223(a).” Id. at 1073–74. Chomp rejected the contention 

that minimal notice “requires at the very least an 

identification of the taxpayer” and that the Commissioner 

“failed to use information that he could ascertain readily 

from his records” in that case, because he “mailed the FPAA 

. . . to all requisite partners . . . at their known addresses, as 

provided by the partnership.” Id. at 1074–75.

In this case, appellants do not dispute that they “used [the 

Eastern] address in their filings in another case involving 

their individual income tax liability.” “In addition to the 

information on the partnership return and that supplied on 

statements filed under this section, the Internal Revenue 

Service may use other information in its possession . . . in 

administering subchapter C of chapter 63 of the Internal 

Revenue Code.” 26 C.F.R. § 301.6223(c)–1(f). Because the 

Commissioner sent the November 1, 2017 FPAAs addressed 
SNJ LIMITED V. CIR 13

to SNJ’s TMP to the address given by appellants, the Tax 

Court properly held that “the November 2017 FPAAs were 

not invalid by reason of being improperly addressed.”

B.

Appellants also claim that the Commissioner knew (or 

should have known) to send the FPAAs to their address in 

Utah or to SNJ’s agent in Nevada. Appellants claim that the 

Commissioner knew or should have known their Utah 

address because they were “parties in two [prior] Tax Court 

cases” involving their individual income tax returns, and the 

Commissioner’s attorney in the individual income tax cases 

below was the same attorney for the Commissioner in the 

partnership case below. Appellants also claim that the 

Commissioner issued a tax refund in 2011 to Ritchie Stevens 

and mailed the refund to him at a Park City, Utah address, 

and that SNJ had a registered agent in Nevada.

But the Commissioner is not obligated to use or search 

for any of that information, and appellants provide no 

evidence that they furnished their preferred addresses to the 

Commissioner in the legally required manner. In mailing 

FPAAs or other notices, I.R.C. § 6223(c)(1) required the 

Commissioner to “use the names, addresses, and profits 

interests shown on the partnership return.” According to 

§ 6223(c)(2), the Commissioner “shall use additional 

information furnished . . . by the [TMP] or any other person 

in accordance with regulations prescribed by the Secretary 

[of the Treasury].” Moreover, 26 C.F.R. § 301.6223(c)–1(b) 

states:

Any person may furnish additional 

information at any time by filing a written 

statement with the Internal Revenue Service. 

However, the information contained in the 
14 SNJ LIMITED V. CIR

statement will be considered for purposes of 

determining whether a partner is entitled to a 

notice described in section 6223(a) only if the 

Internal Revenue Service receives the 

statement at least 30 days before the date on 

which the Internal Revenue Service mails the 

notice to the tax matters partner. . . . A 

statement furnished under this section 

generally must be filed with the service 

center where the partnership return is 

filed. . . . The statement shall . . . [i]dentify 

the partnership, each partner for whom 

information is supplied, and the person 

supplying the information by name, address, 

and taxpayer identification number . . .

[e]xplain that the statement is furnished to 

correct or supplement earlier information 

with respect to the partners in the partnership 

. . . [s]pecify the taxable year to which the 

information relates . . . [s]et out the corrected 

or additional information; and . . . [b]e signed 

by the person supplying the information.

Further, “[i]n addition to the information on the partnership 

return and that supplied on statements filed under this 

section, the Internal Revenue Service may use other 

information in its possession . . . [but it] is not obligated to 

search its records for information not expressly furnished 

under this section.” 26 C.F.R. § 301.6223(c)–1(f).

Appellants do not dispute that signed partnership returns 

for 2006 and 2008 were never filed. Thus, there was no 

address I.R.C. § 6223(c)(1) required the Commissioner to 

use. There is no evidence that any other information that the 

Commissioner had or should have had according to 
SNJ LIMITED V. CIR 15

appellants—such as Ritchie Stevens’ Park City address to 

which a tax refund was mailed—was furnished to the 

Commissioner according to the applicable regulations. Even 

though the Commissioner may have had access to the other 

address information presented by appellants, the 

Commissioner was not required to use it.

C.

Appellants claim that the “FPAA dated November 1, 

2017 was void under I.R.C. § 6231(a)(3) because it was sent 

sooner than 270 days after [an] August 1, 2017 letter was 

sent to the partnership.”4

 On August 1, 2017, or about 92 

days before the November 1, 2017 FPAAs were sent, the 

Commissioner sent a letter addressed to the “Tax Matters 

Partner” of SNJ to the Troon address including a copy of the 

“summary report on the examination of [SNJ] . . .

explain[ing] all proposed adjustments including facts, law, 

and conclusion” and informing the TMP that the TMP “and 

the examining agent must agree on the date, time, and place 

for the closing conference” to “discuss all proposed 

adjustments in the summary report.” I.R.C. § 6223(d)(1) 

required the Commissioner to send certain partners a 

“[n]otice of beginning of [administrative] proceedings” 

concerning a partnership, and to wait 120 days before 

mailing any FPAA resulting from those administrative 

proceedings. Though the Tax Court noted in its order 

denying reconsideration that “Petitioners provide no 

4 I.R.C. § 6223(d)(1) required the Commissioner to send a 

notification of the beginning of an administrative proceeding at least 120 

days before sending an FPAA. TEFRA, which included I.R.C. 

§ 6223(d)(1), was repealed effective on January 1, 2018. See Bipartisan 

Budget Act of 2015, Pub. L. No. 114–74, 129 Stat. 584 (2015). But the 

repeal did not affect the applicability of the 120-day waiting period for 

the years in question here—2006 and 2008.
16 SNJ LIMITED V. CIR

evidence that respondent failed to comply with that rule,” it 

did not discuss whether the August 1, 2017 notice was a 

“notice of beginning of administrative proceedings” under 

I.R.C. § 6223.5

The August 1, 2017 letter from the Commissioner is not 

a notice of the beginning of an administrative proceeding, 

and thus did not start the 120-day waiting period. The 

August 1, 2017 letter does not claim to be such a notice and 

does not describe any administrative proceeding. The 

August 1, 2017 letter states that it “enclose[s] a copy of our 

summary report on [SNJ]” that “explains all proposed 

adjustments” and asks the TMP to “agree on the date . . . for 

the closing conference.” Relevant regulations list “[c]losing 

conference[s] with the examining agent” and “[p]roposed 

adjustments” as information to be listed in “[o]ther notices” 

that have nothing to do with notices of the beginning of 

administrative proceedings. 26 C.F.R. § 301.6223(g)–

1(b)(i)–(ii).6

 Because the August 1, 2017 letter is not a 

notification of the beginning of an administrative 

5 Neither the appellants’ opening nor reply brief addresses whether 

the August 1, 2017 letter is a notice of the beginning of an administrative 

proceeding. The Commissioner’s answering brief merely claims that the 

letter “was not even a notice of the beginning of an administrative 

proceeding; it was a cover letter to the [TMP] sent with the summary 

report following the examination of SNJ for its 2006 year.” Although 

we could consider the issue waived, we choose to address it on the 

merits.

6 26 C.F.R. § 301.6223(g)–1(a) requires a TMP to forward FPAAs 

and notices of the beginning of administrative proceedings to other 

partners. 26 C.F.R. § 301.6223(g)–1(b)(i)–(ii) lists “[o]ther notices or 

information,” which include notices of “[c]losing conference[s] with the 

examining agent” and “[p]roposed adjustments.”
SNJ LIMITED V. CIR 17

proceeding, the November 1, 2017 FPAAs did not violate 

I.R.C. § 6223(d)(1).7

D.

Appellants claim that the 2017 FPAAs are invalid

because they were superseded by the 2018 FPAAs.8

 I.R.C. 

§ 6223(f) barred the Commissioner from issuing more than 

one FPAA pertaining to a partnership for a taxable year to 

7 Although there is no evidence in the record that the Commissioner 

notified the appellants of the beginning of any administrative proceeding 

before sending the FPAAs, appellants never argued or produced 

evidence before this Court that they did not receive such a notice. Before 

the Tax Court, appellants’ petition and their opposition to the 

Commissioner’s motion to dismiss also failed to argue that they never 

received a notice beginning administrative proceedings. Thus, 

appellants forfeited this issue. See Sparkman v. Comm’r, 509 F.3d 1149, 

1158 (9th Cir. 2007) (“Absent exceptional circumstances, this court will 

not consider an argument that was not first raised in the Tax Court.”). 

Appellants did claim, in one sentence in their motion to reconsider, that 

“[n]or were there any notices of any initiation of any partnership 

administrative proceeding.” Even assuming that one sentence in a 

motion to reconsider sufficiently “raised” the issue below, appellants 

waived the issue on appeal by failing to address it their opening brief. 

See United States v. Salman, 792 F.3d 1087, 1090 (9th Cir. 2015) (“The 

threshold question is whether [appellant] waived the present argument 

by failing to raise it in his opening brief on this appeal, even though he 

had raised it below . . . . Ordinarily, we will not consider ‘matters on 

appeal that are not specifically and distinctly argued in appellant’s 

opening brief.’” (internal quotation marks omitted)), aff’d, 137 S. Ct. 420 

(2016).

8 We have discussed above and rejected other reasons that the 2017 

FPAAs were allegedly invalid, including appellants’ claims that they did 

not live at the Troon address, that the FPAAs sent to the Eastern address 

should have been addressed to a named partner instead of the TMP, and 

that the Commissioner knew (or should have known) to send the FPAAs 

to appellants’ preferred addresses.
18 SNJ LIMITED V. CIR

the same partner, absent “a showing of fraud, malfeasance, 

or misrepresentation of a material fact.” According to 

appellants, issuing the 2017 FPAAs violated 26 U.S.C. 

§ 6231(a)(3) and this alleged violation constitutes 

malfeasance.9 We disagree. That a second set of FPAAs 

was issued does not prove fraud, malfeasance, or 

misrepresentation of a material fact. The Tax Court held in

Wise Guys Holdings, LLC v. Comm’r, 140 T.C. 193, 194, 

199–200 (2013), that “the second FPAA is invalid (and thus 

disregarded) because [§] 6223(f) precluded [the 

Commissioner] from properly mailing the second FPAA . . .

[when] the mailing of the second FPAA was more the result 

of a mistake . . . . on the part of the IRS than of fraud, 

malfeasance, or a misrepresentation of a material fact.” We 

agree that simply incorrectly or unnecessarily sending a 

second FPAA does not equal fraud, malfeasance, or a 

misrepresentation of a material fact. Here, appellants 

offered nothing more. Thus, because there was no fraud, 

malfeasance, or misrepresentation of a material fact, only the 

2017 FPAAs were valid.

Appellants claim that the very fact that the 

Commissioner mailed a second set of FPAAs indicates that 

the first set of FPAAs was invalid.10 But appellants’ 

argument can’t be reconciled with Wise Guys Holdings, 

which held that sending a second set of FPAAs does not 

necessarily invalidate the first set. 140 T.C. at 199–200. 

9 As stated above, the applicable provision is I.R.C. § 6223(d)(1), 

not 26 U.S.C. § 6231. See supra n.4.

10 The Commissioner claims to have sent the 2018 FPAAs “out of 

an abundance of caution.”
SNJ LIMITED V. CIR 19

And we believe Wise Guys Holdings correctly decided the 

issue.

Thus, the FPAAs issued on November 1, 2017 were 

valid and the 2018 FPAAs were invalid. Because June 7, 

2018 is more than 150 days after November 1, 2017, the Tax 

Court properly dismissed appellants’ petition. See Wise 

Guys Holdings, 140 T.C. at 200 (“We conclude that the 

second FPAA is invalid, and we disregard it for purposes of 

deciding whether petitioner’s petition was timely filed to 

invoke the Court’s jurisdiction to decide this case.”).

IV.

Appellants argue for the first time on appeal that the 

filing deadline in I.R.C. § 6226 is not jurisdictional and that 

they are entitled to equitable tolling. Appellants forfeited 

both claims because they never raised them before the Tax 

Court and do not explain why they failed to raise those 

claims. See Monetary II Ltd. P’ship v. Comm’r, 47 F.3d 342, 

347 (9th Cir. 1995) (“[Appellant] neither raised this issue 

below, nor provides any justification for its failure to do 

so. . . . As no exceptional circumstances affecting failure to 

raise the issue have been demonstrated, [appellant] is 

deemed to have waived this claim.”). But because 

appellants’ contention concerns a significant jurisdictional 

issue, we exercise our discretion to reach it. Cf. Wood v. 

Milyard, 566 U.S. 463, 472 (2012) (“Affording federal 

courts leeway to consider a forfeited timeliness defense was 

appropriate, we again reasoned, because [the Antiterrorism 

and Effective Death Penalty Act’s] statute of limitations, like 

the exhaustion doctrine, ‘implicat[es] values beyond the 

concerns of the parties.’” (second alteration in original)). 

We hold that the filing deadline in I.R.C. § 6226 is 

jurisdictional and cannot be equitably tolled. See Dolan v. 

United States, 560 U.S. 605, 610 (2010) (“[A] 
20 SNJ LIMITED V. CIR

‘jurisdictional’ deadline prevents the court from permitting 

or taking the action to which the statute attached the 

deadline. The prohibition is absolute. The parties cannot 

waive it, nor can a court extend that deadline for equitable 

reasons.”).

The Supreme Court has held that “when Congress does 

not rank a statutory limitation on coverage as jurisdictional, 

courts should treat the restriction as nonjurisdictional in 

character.” Arbaugh v. Y & H Corp., 546 U.S. 500, 516 

(2006). Courts are instructed to “consider ‘context, 

including [the Supreme] Court’s interpretations of similar 

provisions in many years past’ as probative of whether 

Congress intended a particular provision to rank as 

jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 

145, 153–54 (2013) (citations and original alterations 

omitted). Congress need not “incant magic words in order 

to speak clearly.” Id. at 153.

I.R.C. § 6226 is entitled “Judicial review of final 

partnership administrative adjustments.” The deadlines at 

issue are found in I.R.C. § 6226(a) and 6226(b)(1). I.R.C. 

§ 6226(a) permits a TMP to petition for judicial review of an 

FPAA within 90 days after the Commissioner mails the 

FPAA to the TMP. If the TMP does not file such a petition 

in the 90-day period, I.R.C. § 6226(b)(1) permits a partner 

other than the TMP to petition within 60 days after the 90-

day period given in I.R.C. § 6226(a). I.R.C. § 6226(f), 

entitled “Scope of judicial review,” provides:

A court with which a petition is filed in 

accordance with this section shall have 

jurisdiction to determine all partnership items 

of the partnership for the partnership taxable 

year to which the notice of final partnership 

administrative adjustment relates, the proper 
SNJ LIMITED V. CIR 21

allocation of such items among the partners, 

and the applicability of any penalty, addition 

to tax, or additional amount which relates to 

an adjustment to a partnership item.

I.R.C. § 6226(f) (emphasis added).11

Appellants claim that Congress did not intend § 6226 to 

be jurisdictional because “the so[-]called link in jurisdiction 

to timely filing is not in the same subsection.” However, 

nothing requires a filing deadline and an indication of 

whether the filing deadline is jurisdictional to be in the same 

subsection. Moreover, § 6226(f)’s statement that “[a] court 

with which a petition is filed in accordance with this section 

shall have jurisdiction” does link the filing deadline to a 

grant of jurisdiction. The Fifth Circuit, in A.I.M. Controls, 

L.L.C. v. Commissioner, 672 F.3d 390 (5th Cir. 2012), found 

that § 6226(f) “reflects that Congress intended to make 

§ 6226’s time limits jurisdictional.” Id. at 394. The court 

held that “while this provision does not explicitly exclude 

jurisdiction without a timely filing, [§ 6226] provides 

11 Following the repeal of the old I.R.C. § 6226(f), 26 U.S.C. 

§ 6234(c) is now entitled “Scope of judicial review” and is materially 

identical to the old I.R.C. § 6226(f) in both wording and function:

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.

26 U.S.C. § 6234(c) (emphasis added).
22 SNJ LIMITED V. CIR

strong[] evidence of [c]ongressional intent for a 

jurisdictional requirement.” Id. The Fifth Circuit also 

observed that “§ 6226’s text . . . links the filing deadline to 

the court’s jurisdiction.” Id. at 394.

We therefore hold that the filing deadline in I.R.C. 

§ 6226 is jurisdictional. Because the filing deadline is 

jurisdictional, equitable tolling is unavailable and we need 

not consider appellants’ tolling arguments.

AFFIRMED.

BATAILLON, District Judge, concurring:

I write separately to concur in the result. However, I do 

not believe the Court need address the 

jurisdictional/equitable tolling issue. I therefore respectfully 

do not join in Section IV of the opinion.

In the instant case, it is unnecessary to perform an 

analysis of congressional intent for a statute with no specific 

language concerning time-limited jurisdiction. Based on the 

record at hand, it is apparent the Commissioner initially 

believed its first notice was potentially invalid, otherwise no 

second notice was necessary. Equitably, it would not be 

unreasonable to compute any time limitation from the 

Commissioner’s later notice. I have no doubt there are 

instances in which equity would dictate a less rigid deadline 

enforcement (e.g. death, disability, or incapacitation). 

Whether Congress intended to preclude such exceptions is a 

question not raised in the Tax Court below. There is no 

record to fully appreciate any equitable tolling argument or 

legislative history. Thus, the Majority’s finding of a 

statutory jurisdictional filing limitation may be correct but it

is not supported by a fully developed record. Before limiting 
SNJ LIMITED V. CIR 23

the court’s equitable jurisdiction, I would prefer to decide 

the matter after both sides developed the record and the Tax 

Court fully considered the matter.

In the instant case, it is sufficient to decide this matter 

without addressing the jurisdictional issue which the 

appellants failed to raise before the Tax Court. See 

Monetary II Ltd. P’ship v. C.I.R., 47 F.3d 342, 347 (9th Cir. 

1995) (“[Appellant] neither raised this issue below, nor 

provides any justification for its failure to do so. . . . As no 

exceptional circumstances affecting failure to raise the issue 

have been demonstrated, [appellant] is deemed to have 

waived this claim.”).

Accordingly, I believe the equitable tolling issue 

addressed by the appellants is improperly raised before this 

Court and is unnecessary to address.