Equitable Tolling Opens the Tax Court Door: The Impact of Oquendo v. Commissioner

When I first started my career as a tax controversy attorney one of the sacrosanct rules was that a Tax Court petition must be filed within 90 days of the date of the IRS Notice of Deficiency (NOD). If a petition was not filed within 90 days, the Tax Court did not have jurisdiction, and the taxpayer was left with less appealing options for disputing the proposed adjustments such as paying and filing a claim for refund or an offer-in-compromise based on doubt as to liability. No ifs, ands or buts. The recent Sixth Circuit decision in Oquendo v. Commissioner, No. 24-1205 (6th Cir. 2025) creates a significant ripple in how deadline rules are applied, offering potential relief for taxpayers previously shut out by strict timing requirements.

Naysha Oquendo received a NOD from the IRS dated May 30, 2023, for her 2022 tax year, disallowing her head-of-household status and certain tax credits, including the Earned Income Tax Credit and Child Tax Credit. Under IRC § 6213(a), taxpayers must file a petition for redetermination in the Tax Court within 90 days, in her case, by August 28, 2023. Unfortunately, Oquendo’s petition was not filed until November 1, 2023, 155 days after the notice was mailed. The Tax Court dismissed her case for lack of jurisdiction because the petition was filed more than 90 days after the date of the NOD. Even if the delay in filing was excusable, the Tax Court said it lacked the authority to apply equitable tolling.

On August 25, 2025, the Sixth Circuit reversed the Tax Court’s dismissal, holding that the 90-day filing requirement of § 6213(a) is not jurisdictional, but rather a claims-processing rule, because Congress did not clearly designate it as jurisdictional and its language addresses what the taxpayer may do, not what the court must do. Because the deadline is non-jurisdictional, it is presumptively subject to equitable tolling. The Sixth Circuit remanded the case to allow the Tax Court to evaluate Oquendo’s equitable tolling claim. This aligns the Sixth Circuit with the Second and Third Circuits, both of which held that the § 6213(a) deadline can be equitably tolled.

This does not mean Naysha Oquendo is home free yet. The Tax Court will now evaluate Ms. Oquendo’s equitable tolling claim by reviewing facts regarding (1) her actual notice of the NOD, (2) her constructive knowledge of the NOD, (3) what attempts she made to file a timely petition, (4) prejudice to the IRS and (5) reasonableness under the particular circumstance.

For taxpayers and advisers this ruling is a beacon of hope: a second chance to seek judicial review by the Tax Court when equitable circumstances prevented timely filing.

For questions regarding this blog post or any other civil or criminal tax related matter, please feel free to contact me at jcrouch@meadowscollier.com.