UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1433
SEMYYA LANISE CUNNINGHAM,
Petitioner − Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent – Appellee.
Appeal from the United States Tax Court. (Tax Ct. No. 014090-16L)
Argued: December 5, 2017 Decided: January 18, 2018
Before KEENAN, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Keenan and Judge Harris joined.
ARGUED: Amy Feinberg, HARVARD LAW SCHOOL, Jamaica Plain, Massachusetts, for Appellant. Janet A. Bradley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: T. Keith Fogg, Director, Harvard Federal Tax Clinic, HARVARD LAW SCHOOL, Jamaica Plain, Massachusetts; Carlton M. Smith, New York, New York, for Appellant. David A. Hubbert, Acting Assistant Attorney General, Joan I. Oppenheimer, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. DIAZ, Circuit Judge:
Semyya Lanise Cunningham asks us to reverse the decision of the United States
Tax Court (the “Tax Court”) dismissing her appeal of a collection due process hearing.
The Tax Court concluded that it lacked jurisdiction over Cunningham’s petition, which
she filed one day after the deadline set forth in 26 U.S.C. § 6330(d)(1). Cunningham
urges us to find that the statute’s thirty-day time limit is a nonjurisdictional rule and that
the doctrine of equitable tolling excuses her untimely filing. The circumstances of this
case, however, do not present a situation where equitable tolling is appropriate. We
therefore affirm the dismissal.
I.
In October 2015, the Internal Revenue Service (the “IRS”) issued Cunningham a
final notice of intent to levy unpaid income tax she allegedly owed from 2010, 2011,
2013, and 2014. See 26 U.S.C. § 6330(a). After receiving the notice, Cunningham
exercised her right to a collection due process hearing before the IRS Office of Appeals.
See id. § 6330(b). Following the hearing, the IRS sent Cunningham a letter dated May
16, 2016 advising her of its decision. The letter explained the IRS’s determination that
the levy notice was properly issued and that the proposed levy was appropriate and no
more intrusive than necessary. See id. § 6330(c)(3). It also advised Cunningham that if
she wished to dispute the determination, she “must file a petition with the United States
Tax Court within a 30-day period beginning the day after the date of this letter.” J.A. 5.
2 Finally, it cautioned that “[t]he law limits the time for filing your petition to the 30-day
period mentioned above. The courts cannot consider your case if you file late.” Id.
On June 16, 2016—thirty-one days after the date of the determination letter—
Cunningham mailed a petition to the Tax Court seeking to challenge the IRS’s decision. 1
The IRS moved to dismiss Cunningham’s petition, arguing that she filed it a day beyond
the statutory deadline and thus the Tax Court lacked jurisdiction. See 26 U.S.C.
§ 6330(d)(1). The Tax Court agreed, and granted the government’s motion to dismiss.
This appeal followed.
II.
We review the Tax Court’s dismissal “on the same basis as decisions in civil
bench trials in United States district courts. Questions of law are reviewed de novo, and
findings of fact for clear error.” Starnes v. Comm’r., 680 F.3d 417, 425 (4th Cir. 2012)
(citation omitted).
Cunningham must clear three hurdles for the Tax Court to hear her case. First, the
thirty-day time limit in 26 U.S.C. § 6330(d)(1) must be a mandatory claim-processing
rule rather than a jurisdictional one. Noncompliance with a jurisdictional time limit can
never be excused. See Hamer v. Neighborhood Housing Servs. of Chicago, 138 S.Ct. 13,
17 (2017) (“Failure to comply with a jurisdictional time prescription . . . deprives a court
1 For purposes of 26 U.S.C. § 6330(d)(1), a petition is considered timely filed as of the date of its postmark. See 26 U.S.C. § 7502(a). There is no dispute that Cunningham’s petition was postmarked June 16, 2016. See J.A. 10.
3 of adjudicatory authority over the case, necessitating dismissal—a drastic result.”)
(internal quotation marks omitted). Mandatory claim-processing rules, on the other hand,
are “less stern.” Id. If properly invoked, they “must be enforced, but they may be
waived or forfeited.” Id.
Next, equitable tolling must apply to untimely appeals under the statute. There is
a presumption that equitable tolling is available to litigants, even in cases where the
government is a party. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990).
But that presumption is a rebuttable one. See id. And it is uncertain whether the
presumption applies at all outside the context of Article III courts. See Sebelius v.
Auburn Regional Med. Ctr., 568 U.S. 145, 158–59 (2013) (“We have never applied the
Irwin presumption to an agency’s internal appeal deadline . . . .”).
Finally, even if the time limitation is nonjurisdictional, and even if equitable
tolling is generally applicable to the statute, the specific circumstances of Cunningham’s
appeal must warrant the application of equitable tolling in this particular case. And on
this final point we may resolve this appeal. The facts of this case simply do not call for
equitable tolling, even if tolling might be available. Cunningham asks us to reopen the
Tax Court’s door, but her key does not fit its lock. See Irwin, 498 U.S. at 96.
Federal courts employ equitable tolling “sparingly,” id., and only when a litigant
can establish “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Menominee
Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 755 (2016) (internal quotation marks
omitted). We have said that equitable tolling is appropriate “in those rare instances
4 where—due to circumstances external to the party’s own conduct—it would be
unconscionable to enforce the limitation period against the party and gross injustice
would result.” Whiteside v. United States, 775 F.3d 180, 184 (4th Cir. 2014) (en banc)
(internal quotation marks omitted).
We find these considerations to be wholly absent here. There is no suggestion of
extraordinary circumstances that prevented Cunningham from timely filing her appeal,
nor of circumstances external to her own conduct. Cunningham simply points to the
language in the IRS’s letter, which she claims is misleading and tricked her and other
taxpayers into filing late. But we see nothing misleading about it.
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-1433
SEMYYA LANISE CUNNINGHAM,
Petitioner − Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent – Appellee.
Appeal from the United States Tax Court. (Tax Ct. No. 014090-16L)
Argued: December 5, 2017 Decided: January 18, 2018
Before KEENAN, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Keenan and Judge Harris joined.
ARGUED: Amy Feinberg, HARVARD LAW SCHOOL, Jamaica Plain, Massachusetts, for Appellant. Janet A. Bradley, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: T. Keith Fogg, Director, Harvard Federal Tax Clinic, HARVARD LAW SCHOOL, Jamaica Plain, Massachusetts; Carlton M. Smith, New York, New York, for Appellant. David A. Hubbert, Acting Assistant Attorney General, Joan I. Oppenheimer, Tax Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit. DIAZ, Circuit Judge:
Semyya Lanise Cunningham asks us to reverse the decision of the United States
Tax Court (the “Tax Court”) dismissing her appeal of a collection due process hearing.
The Tax Court concluded that it lacked jurisdiction over Cunningham’s petition, which
she filed one day after the deadline set forth in 26 U.S.C. § 6330(d)(1). Cunningham
urges us to find that the statute’s thirty-day time limit is a nonjurisdictional rule and that
the doctrine of equitable tolling excuses her untimely filing. The circumstances of this
case, however, do not present a situation where equitable tolling is appropriate. We
therefore affirm the dismissal.
I.
In October 2015, the Internal Revenue Service (the “IRS”) issued Cunningham a
final notice of intent to levy unpaid income tax she allegedly owed from 2010, 2011,
2013, and 2014. See 26 U.S.C. § 6330(a). After receiving the notice, Cunningham
exercised her right to a collection due process hearing before the IRS Office of Appeals.
See id. § 6330(b). Following the hearing, the IRS sent Cunningham a letter dated May
16, 2016 advising her of its decision. The letter explained the IRS’s determination that
the levy notice was properly issued and that the proposed levy was appropriate and no
more intrusive than necessary. See id. § 6330(c)(3). It also advised Cunningham that if
she wished to dispute the determination, she “must file a petition with the United States
Tax Court within a 30-day period beginning the day after the date of this letter.” J.A. 5.
2 Finally, it cautioned that “[t]he law limits the time for filing your petition to the 30-day
period mentioned above. The courts cannot consider your case if you file late.” Id.
On June 16, 2016—thirty-one days after the date of the determination letter—
Cunningham mailed a petition to the Tax Court seeking to challenge the IRS’s decision. 1
The IRS moved to dismiss Cunningham’s petition, arguing that she filed it a day beyond
the statutory deadline and thus the Tax Court lacked jurisdiction. See 26 U.S.C.
§ 6330(d)(1). The Tax Court agreed, and granted the government’s motion to dismiss.
This appeal followed.
II.
We review the Tax Court’s dismissal “on the same basis as decisions in civil
bench trials in United States district courts. Questions of law are reviewed de novo, and
findings of fact for clear error.” Starnes v. Comm’r., 680 F.3d 417, 425 (4th Cir. 2012)
(citation omitted).
Cunningham must clear three hurdles for the Tax Court to hear her case. First, the
thirty-day time limit in 26 U.S.C. § 6330(d)(1) must be a mandatory claim-processing
rule rather than a jurisdictional one. Noncompliance with a jurisdictional time limit can
never be excused. See Hamer v. Neighborhood Housing Servs. of Chicago, 138 S.Ct. 13,
17 (2017) (“Failure to comply with a jurisdictional time prescription . . . deprives a court
1 For purposes of 26 U.S.C. § 6330(d)(1), a petition is considered timely filed as of the date of its postmark. See 26 U.S.C. § 7502(a). There is no dispute that Cunningham’s petition was postmarked June 16, 2016. See J.A. 10.
3 of adjudicatory authority over the case, necessitating dismissal—a drastic result.”)
(internal quotation marks omitted). Mandatory claim-processing rules, on the other hand,
are “less stern.” Id. If properly invoked, they “must be enforced, but they may be
waived or forfeited.” Id.
Next, equitable tolling must apply to untimely appeals under the statute. There is
a presumption that equitable tolling is available to litigants, even in cases where the
government is a party. Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95–96 (1990).
But that presumption is a rebuttable one. See id. And it is uncertain whether the
presumption applies at all outside the context of Article III courts. See Sebelius v.
Auburn Regional Med. Ctr., 568 U.S. 145, 158–59 (2013) (“We have never applied the
Irwin presumption to an agency’s internal appeal deadline . . . .”).
Finally, even if the time limitation is nonjurisdictional, and even if equitable
tolling is generally applicable to the statute, the specific circumstances of Cunningham’s
appeal must warrant the application of equitable tolling in this particular case. And on
this final point we may resolve this appeal. The facts of this case simply do not call for
equitable tolling, even if tolling might be available. Cunningham asks us to reopen the
Tax Court’s door, but her key does not fit its lock. See Irwin, 498 U.S. at 96.
Federal courts employ equitable tolling “sparingly,” id., and only when a litigant
can establish “(1) that he has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely filing.” Menominee
Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 755 (2016) (internal quotation marks
omitted). We have said that equitable tolling is appropriate “in those rare instances
4 where—due to circumstances external to the party’s own conduct—it would be
unconscionable to enforce the limitation period against the party and gross injustice
would result.” Whiteside v. United States, 775 F.3d 180, 184 (4th Cir. 2014) (en banc)
(internal quotation marks omitted).
We find these considerations to be wholly absent here. There is no suggestion of
extraordinary circumstances that prevented Cunningham from timely filing her appeal,
nor of circumstances external to her own conduct. Cunningham simply points to the
language in the IRS’s letter, which she claims is misleading and tricked her and other
taxpayers into filing late. But we see nothing misleading about it.
The letter informed Cunningham that she had “a 30-day period beginning the day
after the date of this letter” to file an appeal. J.A. 5. We think the only reasonable
reading of that language requires counting the day after the date of the letter (here, May
17) as “day one,” the following day (May 18) as “day two,” and so on up to “day
thirty”—June 15. Cunningham claims she understood the language in the IRS letter to
essentially count May 17 as “day zero,” and onward from there, resulting in a cutoff date
one day later than the true deadline. Such a method of counting is certainly contrary to
the practice set forth in Rule 25(a) of the Tax Court Rules of Practice and Procedure. See
United States v. Sosa, 364 F.3d 507, 512 (4th Cir. 2004) (“[I]gnorance of the law is not a
5 basis for equitable tolling.”). We think it is also contrary to the plain language of the IRS
letter and to principles of common sense. 2
The facts presented in this case are similar to those in Irwin. There, the plaintiff
filed his employment discrimination action after the deadline set forth in 42 U.S.C.
§ 2000e-16(c), which at the time required that a complaint be filed in federal court within
thirty days of receiving a right-to-sue letter from the Equal Employment Opportunity
Commission. See 498 U.S. at 91. Irwin missed the deadline, but argued that equitable
tolling should apply because his attorney was out of the country when the letter was
delivered to his office. Id. Although the Supreme Court held that the relevant time limit
was nonjurisdictional, and that equitable tolling could apply to late claims under the
statute, it ultimately denied relief, concluding that “the principles of equitable tolling . . .
do not extend to what is at best a garden variety claim of excusable neglect.” Id. at 96.
Here, Cunningham’s miscalculation of the filing deadline may well have been an
innocent mistake. But we have rejected the argument that such mistakes warrant
applying the extraordinary doctrine of equitable tolling, lest we “over time consign filing
deadlines and limitations periods to advisory status.” Gayle v. United Parcel Serv., Inc.,
401 F.3d 222, 227 (4th Cir. 2005). “To apply equity generously would loose the rule of
law to whims about the adequacy of excuses, divergent responses to claims of hardship,
2 Cunningham also points out (correctly) that the language in the letter is not identical to the language in the statute. But it need not be, and Cunningham fails to explain why the difference in wording matters. In our view, the language of the letter and the language of the statute are two commonsense ways of expressing the same message.
6 and subjective notions of fair accommodation.” Harris v. Hutchinson, 209 F.3d 325, 330
(4th Cir. 2000).
Because Cunningham’s argument for equitable tolling rests on the premise that the
language in the IRS’s letter was somehow misleading or fraudulent, we can resolve this
case on the record before us. We see nothing misleading about the IRS’s notice, and
certainly nothing to suggest the IRS acted with negligence (or worse). Instead, the error
in this case came from Cunningham’s own mistake: she either misread (or
misunderstood) the IRS’s notice, or else simply miscounted the number of days. We find
these circumstances a far cry from the “rare instances” that justify equitable tolling, and
conclude it would be inappropriate to apply that exceptional doctrine here. Id. 3
III.
For these reasons, the Tax Court’s dismissal of the petition in this case is
AFFIRMED.
3 Because we find that this case does not warrant equitable tolling, we need not decide whether 26 U.S.C. § 6330(d)(1) is jurisdictional or whether its deadline may ever be equitably tolled. Even if Cunningham were correct on both counts, she would not be entitled to relief for the reasons we have discussed.