Most people who know anything about Tax Court know the 90-day rule for a Notice of Deficiency. Collection Due Process cases run on a different clock. After Appeals issues a Notice of Determination, you have 30 days to petition the Tax Court.
That shorter deadline catches people every year. Here is how it works, what changed in 2022, and how to make sure it never becomes your problem.
The statute
IRC 6330(d)(1) says the person may, within 30 days of a determination, petition the Tax Court for review of that determination, and the Tax Court shall have jurisdiction with respect to the matter. Lien hearings use the same rule through IRC 6320(c). Treas. Reg. 301.6330-1(f)(2), Q&A-F1, frames it as the 30-day period commencing the day after the date of the Notice of Determination.
Count from the date on the notice, not the date you received it. Mail delays eat into your time, not the IRS's.
How filing is measured
For electronic filing, the Tax Court's guidance on starting a case says the Court must receive an electronically filed petition no later than 11:59 p.m. Eastern Time on the last date to file. For paper petitions, the timely mailing rules of IRC 7502 apply, so a petition sent by U.S. mail with a timely postmark, or by a designated private delivery service with a timely mailing date, is treated as filed on time even if it arrives later. Weekend and holiday rules under IRC 7503 can extend a deadline that falls on those days.
The Court's guidance is also clear on one practical point: file once. Do not file the same petition electronically and on paper.
Boechler: the deadline is not jurisdictional
For years, the Tax Court treated the 30-day CDP deadline as jurisdictional. Miss it by a day and the case was dismissed, period. In Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), the Supreme Court unanimously held otherwise. The Court concluded that the 30-day limit in IRC 6330(d)(1) is a nonjurisdictional claim-processing rule subject to equitable tolling. The petitioner in that case had filed one day late.
That was a real change. It means a late CDP petition is no longer automatically dead.
Why you should still treat it as absolute
Equitable tolling is narrow. Generally, a party seeking it must show that they pursued their rights diligently and that some extraordinary circumstance stood in the way of timely filing. Ordinary reasons do not qualify. A busy month, a misplaced envelope, or a preparer who forgot are rarely enough.
Even when tolling is available, you are litigating a threshold issue before the court ever reaches your case. That costs time and money and puts your entire review at risk on a discretionary call. Here's the part most people miss: Boechler is a safety net, not a strategy. The plan is to file on time.
Boechler also addressed only the CDP deadline. The 90-day deficiency deadline in IRC 6213(a) is a different statute, and the Tax Court has continued to treat it as jurisdictional. Do not assume Boechler stretches to a Notice of Deficiency.
Bankruptcy and the deadline
IRC 6330(d)(2) adds one specific rule. If you are prohibited from filing a petition because of a bankruptcy case under title 11, the 30-day period is suspended while you are prohibited and for 30 days after. If a bankruptcy filing overlaps with a determination, get advice from both bankruptcy and tax counsel before you count days.
What goes in the petition
The Tax Court's Form 2 petition has a box for a Notice of Determination Concerning Collection Action. Tax Court Rule 331 governs the content of petitions in lien and levy actions. In substance, the petition should:
- Identify the Notice of Determination and attach a copy.
- State the errors you claim Appeals made, issue by issue.
- State the facts supporting each error.
- Request the relief you want, such as a remand or a determination that the levy may not proceed.
Remember that the court will generally consider only issues properly raised at the hearing, under Treas. Reg. 301.6330-1, Q&A-F3. The petition should track what is in the administrative record. See how the Tax Court reviews CDP determinations.
You will also file Form 4 with your taxpayer identification number, a Form 5 request for place of trial, and the $60 filing fee, or an application to waive it. Our guide to filing a Tax Court petition walks through the mechanics.
The innocent spouse wrinkle
If your CDP hearing included a request for innocent spouse relief under IRC 6015, Q&A-F2 explains that a petition covering both the CDP issues and the 6015 denial should be filed within the 30-day CDP period. If you seek review only of the 6015 denial, the 90-day period under IRC 6015(e) applies. Missing 30 days but making 90 preserves only the innocent spouse issue.
Small case election
Under IRC 7463(f)(2), you can elect small tax case procedures if the unpaid tax does not exceed $50,000. Decide when you file. It changes the procedure and eliminates the right to appeal.
What happens after you file
Once the petition is filed, the IRS has time to answer under Tax Court Rule 36, generally 60 days from service of the petition. In CDP cases, the IRS frequently responds with a motion for summary judgment under Rule 121, arguing that the administrative record shows no abuse of discretion. That motion is decided on the record you built at Appeals, which is why the hearing matters so much.
The levy suspension from your original CDP request continues while the case is pending under IRC 6330(e)(1). The collection statute remains suspended as well. If circumstances have changed since the hearing, such as a job loss or a new medical expense, tell counsel immediately. A remand to Appeals may be possible, and Appeals also retains jurisdiction over changed circumstances under IRC 6330(d)(3) once administrative remedies are exhausted.
Settlement is common in CDP cases, too. IRS Chief Counsel may agree to a remand or to a revised collection alternative once a judge is involved. That is easier when the record shows you cooperated and the officer did not.
A practical deadline checklist
- Write the date of the Notice of Determination on your calendar.
- Count 30 days starting the next day. Mark it, and mark a target date at least a week earlier.
- Decide whether to e-file through DAWSON or mail with proof of mailing.
- Gather the notice, the hearing request, and your key submissions to Appeals.
- File. Then confirm the docket number.
Let's talk
Thirty days goes fast, and the petition has to match the record you built at Appeals. If you have a Notice of Determination, call (813) 229-7100 now. Let's talk.