Missed the Tax Court Deadline? | Kathryn Meyer Law PC

File anyway, and quickly, if there is any reason the late filing might be excused, because whether the 90-day deadline can ever be extended depends on where you live. The Second, Third, Sixth and Eighth Circuits allow equitable tolling in the right case, the First Circuit says the deadline cannot be tolled, and older Seventh and Ninth Circuit decisions treat it as jurisdictional. If the Tax Court is closed to you, the main routes left are paying and claiming a refund, audit reconsideration, or an offer based on doubt as to liability.

Missing the deadline usually means the IRS will assess the tax and start collection, so the next steps should be taken in days, not months. Late-notice problems are a regular part of Kathryn Meyer's tax litigation practice.

First, check whether you really missed it

Before treating the deadline as missed, confirm the dates. Under IRC 6213(a), the period is 90 days after the notice of deficiency is mailed, or 150 days if the notice is addressed to a person outside the United States, and a Saturday, Sunday or District of Columbia legal holiday cannot be the last day. The statute adds that a petition filed "on or before the last date specified for filing such petition by the Secretary in the notice of deficiency shall be treated as timely filed," even if that printed date is later than the 90th day.

Count from the mailing date, not the date you received or opened the notice.
Check the printed last day on the notice; filing by that date is timely.
Check how it was sent. Paper petitions mailed within the period with a legible U.S. Postal Service postmark are generally timely (IRC 7502), and the court treats electronic petitions received by 11:59 p.m. Eastern time on the last day as timely.
Check the address. The notice must be mailed to your last known address (IRC 6212(b)); the counting rules are explained in what to do when you receive a notice of deficiency.

Can the deadline be extended? The courts disagree

The court's own petitioner guidance says that, by law, "the Tax Court cannot extend the time for filing a petition." The open question is different: whether a late petition can be accepted under the doctrine of equitable tolling, which lets a court excuse a late filing in appropriate circumstances. In Boechler, P.C. v. Commissioner (2022), the Supreme Court held that the 30-day deadline for Collection Due Process petitions is not jurisdictional and can be tolled. The courts of appeals have since divided over whether the same is true of the 90-day deficiency deadline, and in August 2026 the First Circuit added a third view: the deadline is not jurisdictional, but it is mandatory and cannot be tolled.

Court	Position on the 90-day deadline	Decision
U.S. Tax Court	Has dismissed late petitions as outside its jurisdiction	As described in Oquendo (6th Cir. 2025)
Third Circuit	Not jurisdictional; may be equitably tolled	Culp v. Commissioner, 75 F.4th 196 (2023)
Second Circuit	Not jurisdictional; subject to equitable tolling; remanded for the Tax Court to decide tolling	Buller v. Commissioner, 160 F.4th 266 (2025), amended Nov. 26, 2025
Sixth Circuit	Not jurisdictional; remanded for the Tax Court to decide tolling	Oquendo v. Commissioner, 148 F.4th 820 (2025)
First Circuit	Not jurisdictional, but mandatory: not subject to equitable tolling	Kyick Holdings, LLC v. Commissioner, No. 25-1429 (Aug. 17, 2026)
Eighth Circuit	Not jurisdictional; subject to equitable tolling	Maniktala v. Commissioner, No. 25-1366 (Aug. 11, 2026)
Seventh Circuit	Jurisdictional (decided before Boechler); the petition in that case was found timely under the postmark rules	Tilden v. Commissioner, 846 F.3d 882 (2017)
Ninth Circuit (includes California)	Jurisdictional, so equitable tolling does not apply (decided before Boechler)	Organic Cannabis Foundation v. Commissioner, 962 F.3d 1082 (2020)
Fourth Circuit (includes Virginia and Maryland)	Not listed among the decisions in these opinions	No ruling cited in Oquendo, Maniktala or Kyick Holdings

Two cautions. First, a holding that the deadline is not jurisdictional does not mean a late petition will be accepted. The First Circuit reached that holding and still affirmed the dismissal, because it found the deadline mandatory and closed to tolling. Even where tolling is allowed, the Sixth Circuit stressed that "equitable tolling is not automatically applicable" and that the decision is made case by case, and both the Sixth and Eighth Circuits sent their cases back to the Tax Court to decide whether tolling applied on the facts. Second, the law here is moving; this table reflects the opinions read on the date shown above, and the circuit that would hear your appeal depends on where you live (IRC 7482(b)), as explained in whether you can appeal a Tax Court decision, and to which court.

How a late petition is handled, step by step

The Sixth Circuit's Oquendo opinion describes the usual sequence in a case where the notice went to a former address:

The taxpayer files a late petition, disputing the deficiency and explaining why it is late. In Oquendo, it was filed 155 days after the notice was mailed, 20 days after the taxpayer learned of it.
The IRS moves to dismiss for lack of jurisdiction, arguing the petition was not filed within the time in IRC 6213(a) or 7502.
The taxpayer objects, arguing that the deadline can be tolled and that the facts justify it.
The Tax Court rules. In Oquendo it dismissed, saying it had "no authority to extend this 90-day period," and noted that the taxpayer could still pursue the matter administratively with the IRS or pay and file a refund claim.
The court of appeals reviews. The Sixth Circuit reversed on the jurisdiction question and sent the case back for the Tax Court to decide whether tolling was warranted.

The routes that remain if the Tax Court is closed

Route	What it requires	Source
Pay and claim a refund, then sue	Full payment, a timely refund claim, then a suit in district court or the Court of Federal Claims	IRC 6511, 7422, 6532; Flora (1960)
Audit reconsideration	New information on an unpaid audit assessment; for example if you did not appear for the audit or moved and did not receive IRS letters	IRS Publication 3598
Offer in compromise, doubt as to liability	A legitimate doubt that you owe the tax, on Form 656-L	Form 656-B booklet
Collection Due Process hearing	You may challenge the tax itself only if you did not receive the notice of deficiency or otherwise have a chance to dispute it	IRC 6330(c)(2)(B)

Each route has its own limits. The refund route needs the claim filed within the periods in IRC 6511, explained in how long you have to claim a tax refund. Reconsideration is an administrative review, described in whether you can reopen an IRS audit after it closes. A Collection Due Process hearing is available when a lien or levy notice arrives; for a taxpayer who never received the notice of deficiency, it can be a way to contest the tax itself, as explained in what a Collection Due Process hearing is.

Whatever route remains, the same papers matter: the notice, its envelope and the audit file, as listed in what to bring to a first meeting about a Tax Court case.

What changes the answer

Where you live. Your circuit decides whether equitable tolling is even possible on appeal.
Why you were late. In Oquendo, the Sixth Circuit told the Tax Court to weigh factors including lack of notice of the filing requirement, diligence in pursuing your rights, the absence of prejudice to the IRS, and the reasonableness of not knowing the deadline; the taxpayer there said the notice went to a former address.
Whether the notice was valid. A notice not mailed to your last known address raises different questions from a late petition.
Whether you can pay. The refund route requires full payment of the assessment first; see Tax Court, district court or the Court of Federal Claims.
Whether a court or agreement already settled the tax. Publication 3598 says the IRS will not accept a reconsideration request if the Tax Court or another court has issued a final determination of your liability, or if you agreed to the tax in a closing agreement, a compromise or a Form 870-AD with Appeals.
The collection clock. Once the tax is assessed, collection begins and the 10-year collection period starts; see how long the IRS has to collect a tax debt.

For example: a notice that sat in a mailbox

For example, imagine a taxpayer who was caring for a parent in another state when a notice of deficiency was mailed to her home. She returns and opens it 110 days after the mailing date. She files a Tax Court petition right away and is ready to show why the filing was late, with proof of her absence and of how quickly she acted. If she lives in a circuit that treats the deadline as not jurisdictional, the Tax Court may have to decide whether her circumstances justify equitable tolling, and an appeal could follow. If she lives in a circuit that treats it as jurisdictional, the petition is likely to be dismissed, and she turns to the other routes: she gathers the records the examiner never saw and asks for audit reconsideration, and keeps the refund route open by tracking the dates in IRC 6511 in case she later pays and claims a refund. This is a hypothetical, not a real case.

Common mistakes after a missed deadline

Assuming the deadline is missed without checking. The printed last day and the mailing rules can save a petition.
Waiting for the courts to settle the question. Any tolling argument depends on acting promptly once you learn of the notice.
Ignoring the assessment and bills that follow. Collection starts after assessment, with its own deadlines.
Paying part of the tax and suing. A refund suit generally requires full payment of the assessment.
Sending old documents for reconsideration. Publication 3598 asks for information the examiner did not consider.
Missing a later Collection Due Process window. A lien or levy notice brings a new 30-day deadline.

What to do this week

Confirm the mailing date, the printed last day, and the address the notice was sent to.
Write down when and how you learned of the notice, with proof, in case equitable tolling is available.
Identify your circuit from where you live.
Get your account transcript to see whether the tax has been assessed and when.
Decide which remaining route fits: a late petition with an explanation, reconsideration, an offer based on doubt as to liability, or payment and a refund claim.

Frequently asked questions

Can the IRS extend the 90 days?

No. Publication 5 says the law sets the time and neither the IRS nor the Tax Court can change it, even if you keep talking to the IRS.

What is equitable tolling?

A doctrine that lets a court excuse a late filing in appropriate circumstances, judged case by case. Whether it applies to the 90-day deadline at all depends on the circuit.

Does Boechler decide the question for deficiency cases?

No. Boechler addressed the 30-day Collection Due Process deadline in IRC 6330(d)(1). Several circuits have applied its reasoning to IRC 6213(a), the First Circuit applied it only in part (not jurisdictional, but no tolling), and others have not yet revisited their older decisions.

Can you file a petition and ask for tolling at the same time?

Yes, a petition can be filed with an explanation of the delay; the mechanics of filing are in how to file a petition in the U.S. Tax Court.

Will collection start right away?

Once the tax is assessed the IRS sends bills, and payment options are available; see the IRS payment plan options.

Can an offer in compromise replace the Tax Court?

An offer based on doubt as to liability asks the IRS to reconsider the amount, but it is an administrative request, not a court case; see whether you qualify for an IRS offer in compromise.

Acting fast after a missed deadline

When a deadline has passed, the first days decide which options remain. Kathryn Meyer spent more than two decades in the IRS Office of Chief Counsel, which litigates these jurisdiction questions for the IRS, and now represents taxpayers. If you found a notice of deficiency too late, contact the firm or call (571) 560-8674 right away.

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