Judgment summary
This case concerns Big Apple Tompkins Realty LLC (Big Apple), an entity treated as a partnership for federal income tax purposes and subject to the Bipartisan Budget Act (BBA) partnership audit and litigation procedures. The Commissioner mailed a Notice of Final Partnership Adjustment (FPA) to Big Apple and its partnership representative, Mojahed H. Bhutta, on August 11, 2022, determining an imputed underpayment of $87,586 and a section 6662(d) accuracy-related penalty of $17,517 for tax year 2018.
Big Apple filed its Petition in the Tax Court on November 13, 2023, well beyond the 90-day deadline in section 6234(a). The Commissioner moved to dismiss for lack of jurisdiction on the ground that the Petition was untimely under section 6234(a) or 7502. Big Apple objected, asserting it did not receive the FPA until November 2023.
The court found that the Commissioner had properly issued and mailed the FPA on August 11, 2022, based on the combined evidentiary weight of an incomplete USPS Form 3877 and two USPS Forms 3800. It further held, as a matter of first impression, that the 90-day filing deadline in section 6234(a) is a non-jurisdictional claim-processing rule rather than a jurisdictional bar, and accordingly denied the Commissioner's Motion to Dismiss for Lack of Jurisdiction.
Background
Big Apple is treated as a partnership for federal income tax purposes and is subject to the partnership audit and litigation procedures established by the BBA, Pub. L. No. 114-74, § 1101, 129 Stat. 584, 625-38. Mr. Bhutta is Big Apple's partnership representative. Big Apple's principal place of business was Staten Island, New York, when the Petition was filed.
On November 13, 2023, Big Apple filed its Petition in the Tax Court, attaching two copies of an FPA dated August 11, 2022, one addressed to Big Apple and one to Mr. Bhutta. The FPA determined an imputed underpayment of $87,586 and a section 6662(d) accuracy-related penalty of $17,517 for tax year 2018. The envelope containing the Petition bore a printed USPS stamp dated November 6, 2023, partially obscuring what was presumably a postmark.
Respondent filed his Answer on January 24, 2024, and moved to dismiss for lack of jurisdiction on March 8, 2024, alleging that the two copies of the FPA were sent via certified mail on August 11, 2022, to the last known addresses of Big Apple and Mr. Bhutta. Attached to the Motion were a USPS Form 3877 and two USPS Forms 3800.
On March 26, 2024, Big Apple filed an Objection stating that the FPA was not received by petitioner or its representative until November 2023, and that the Petition was promptly filed thereafter. On June 10, 2025, the court ordered respondent to supplement the Motion regarding USPS.com tracking information; respondent filed a supplement on June 27, 2025, stating that no additional tracking information was in his possession beyond the mailing information already attached.
Core dispute
The dispute centred on two questions: first, whether respondent properly issued and mailed the FPA to Big Apple and Mr. Bhutta on August 11, 2022, given that the supporting USPS Form 3877 was incomplete; and second, whether the 90-day petition filing deadline in I.R.C. section 6234(a) is jurisdictional, such that an untimely filed petition would deprive the Tax Court of jurisdiction to hear the case.
Respondent argued that the Petition, filed no earlier than November 6, 2023, was untimely because the FPA had been mailed on August 11, 2022, making the section 6234(a) deadline November 9, 2022. Big Apple argued that it did not receive the FPA until November 2023 and filed promptly thereafter, but adduced no evidence disputing the August 11, 2022 mailing date.
Court findings
The court held that whether an FPA is properly issued and mailed should be determined in pari materia with the Tax Court's deficiency caselaw, given the similarity in statutory text between section 6212(b)(1) (notices of deficiency) and section 6231(a) (FPAs).
The court placed the burden of proving the date of mailing on respondent, given that this information is peculiarly within respondent's knowledge. Although the USPS Form 3877 was incomplete and did not entitle respondent to a presumption of proper mailing, the court found that the Form 3877, combined with two USPS Forms 3800 bearing matching names, addresses, tracking numbers, and an August 11, 2022 date stamp, was sufficient to establish the mailing date by a preponderance of the evidence. Big Apple did not dispute the last known addresses used or adduce evidence of any other mailing date. The court therefore found that respondent properly mailed the FPA on August 11, 2022, making the section 6234(a) deadline November 9, 2022, and that the Petition, filed no earlier than November 6, 2023 (452 days after mailing), was untimely.
On the jurisdictional question, the court analysed the text, context, and historical treatment of section 6234(a). It found that section 6234(a) itself contains only a permissive grant to file a petition, with no language tying the deadline to the court's jurisdiction, whereas the jurisdictional grant appears in section 6234(c). The court found no clear tie between the 90-day deadline and that jurisdictional grant, noting that Congress used explicit 'jurisdictional requirements' language in section 6234(b) but not in section 6234(a) or (c), which under the Russello canon suggested a deliberate choice.
Examining the broader BBA statutory scheme, the court distinguished its earlier decision in North Wall Holdings, LLC v. Commissioner, 165 T.C. 143 (2025), which held TEFRA's filing deadlines under former section 6226 jurisdictional. The court found the BBA lacks TEFRA's complex, coordinated multi-party deadlines and detailed statutory exceptions, and that the BBA's assessment structure, centred on the adjustment year, would not be rendered unworkable by a non-jurisdictional deadline. The court also found insufficient historical judicial treatment of the BBA's provisions, as opposed to TEFRA's nearly 40-year jurisprudence, to support a jurisdictional reading by analogy.
Outcome
The court held that respondent properly issued and mailed the FPA to Big Apple and Mr. Bhutta, and that Big Apple did not timely file its Petition. However, the court concluded that Congress did not clearly state that the 90-day filing deadline in section 6234(a) is jurisdictional. The court therefore held that it was not deprived of jurisdiction by Big Apple's untimely filing and denied respondent's Motion to Dismiss for Lack of Jurisdiction. The court reserved judgment on whether the 90-day deadline is subject to equitable tolling until the parties raise that issue in an appropriate manner.
Major issues / areas of contention
- Whether an FPA issued under the BBA partnership audit procedures must be evaluated for proper issuance and mailing using principles drawn from deficiency notice caselaw.
- Whether an incomplete USPS Form 3877, combined with USPS Forms 3800, is sufficient evidence to establish the date an FPA was mailed absent the presumption of proper mailing.
- Which party bears the burden of proving the date of mailing of an FPA.
- Whether the 90-day petition filing deadline in I.R.C. section 6234(a) is jurisdictional or a non-jurisdictional claim-processing rule.
- Whether the text of section 6234(a) and (c), compared with the explicit 'jurisdictional requirements' language in section 6234(b), reflects a clear congressional statement tying the filing deadline to the court's jurisdiction.
- Whether the historical and structural differences between TEFRA (former section 6226) and the BBA (section 6234) support treating the BBA's filing deadline the same way as TEFRA's deadlines were treated in North Wall Holdings, LLC v. Commissioner.