In 2021, the Infrastructure Investment and Jobs Act led to the addition the law of IRC §7451(b) by Congress. This provision was first examined in the Tax Court during the case of Sall v. Commissioner, 161 T.C. No. 13.[1] The case presented an opportunity for an in-depth analysis of the application of this newly added section.

The Law

IRC §7451(b) reads as follows:

(b) Tolling of time in certain cases.

(1) In general. Notwithstanding any other provision of this title, in any case (including by reason of a lapse in appropriations) in which a filing location is inaccessible or otherwise unavailable to the general public on the date a petition is due, the relevant time period for filing such petition shall be tolled for the number of days within the period of inaccessibility plus an additional 14 days.

(2) Filing location. For purposes of this subsection, the term “filing location” means—

(A) the office of the clerk of the Tax Court, or

(B) any on-line portal made available by the Tax Court for electronic filing of petitions.

The primary issue centers on interpreting the phrase ‘in which a filing location is inaccessible or otherwise unavailable to the general public’ as stipulated in IRC §7451(b). The question arises: Does this provision become applicable if just one of the locations described in IRC §7451(b)(2) is unavailable, or is it contingent on all the locations mentioned being inaccessible on the scheduled filing date?

In the Sall v. Commissioner case, the IRS contended that as long as one filing location was accessible to the public, or alternatively, the location used by the taxpayer was available, the closure of the Tax Court clerk’s office in Washington, DC was not pertinent. That stance would be based on the fact that the taxpayer, residing in Colorado, would unlikely file the petition in person at the clerk’s office. And, in fact, he did not personally deliver the petition to the clerk’s office when he did file the petition.

However, the statute’s language can also be interpreted to mean that if either the Tax Court clerk’s office or any online portal provided by the Tax Court was unavailable on the filing date, then any taxpayer subject to that filing deadline would be entitled to an additional 14 days to file their petition.

Adding a layer of intrigue to the case is the fact that the taxpayer did not present a counterargument. The opinion highlights this by noting:

The Commissioner filed a Motion to Dismiss for Lack of Jurisdiction. In his Motion the Commissioner states that the filing deadline was November 25, 2022. He argues that we lack jurisdiction over this case because Mr. Sall did not mail his Petition until after the filing deadline had passed, and thus the Petition was untimely. In his Motion the Commissioner recites that Mr. Sall’s representative (who is not counsel of record) has indicated that Mr. Sall does not object to the granting of the Commissioner’s Motion; thus we did not order a response from petitioner.[2]

Facts of the Case

The Court summarized the facts of the case as follows:

The Commissioner issued a notice of deficiency to Madiodio Sall and Ramatoulaye Fall for 2017 and 2018. The notice of deficiency was dated August 25, 2022. Although the notice was dated on the 25th, the Commissioner sent it by certified mail on August 26, 2022. The 90th day after August 26, 2022, was Thursday, November 24, 2022, Thanksgiving Day. The face of the notice of deficiency stated that the “Last day to file petition with US tax court” was Friday, November 25, 2022, the day after Thanksgiving. On that day the Court was administratively closed. The Court’s electronic filing system was operational and accessible at all relevant times.

While residing in Colorado, Mr. Sall mailed his Petition to the Court on Monday, November 28, 2022. The Court received Mr. Sall’s Petition on Thursday, December 1, 2022, and filed it that same day.[3]

The Tax Court diverged from the IRS’s stance, ruling that Mr. Sall was eligible for the extended filing period for his Tax Court petition. The Court’s observation was as follows:

Because a filing location was inaccessible, Mr. Sall’s Petition was timely. The Petition was due to be filed on Friday, November 25, 2022. The Tax Court building in Washington, D.C., which houses the office of the clerk of the Court, was closed that day. Thus, a filing location was inaccessible that day; the availability of the Court’s electronic filing system is immaterial.[4]

Subsequently, the Court undertook a detailed analysis to demonstrate that Mr. Sall’s petition was indeed submitted well before the newly applicable deadline.

The period of inaccessibility was one day. Adding that one day to the additional 14-day tolling period required by section 7451(b)(1) results in extending Mr. Sall’s petition deadline by 15 days from the original due date of his Petition. This shifts the petition due date to no earlier than December 10, 2022. Because that day was a Saturday, the petition deadline shifted even further, to Monday, December 12, 2022. The Court received Mr. Sall’s Petition on December 1, 2022, i.e., before that filing deadline. Thus, his Petition was timely.[5]

[1] Sall v. Commissioner, 161 T.C. No. 13, https://www.taxnotes.com/research/federal/court-documents/court-opinions-and-orders/tax-court-inaccessibility-extended-petition-filing-deadline/7hlsj (retrieved December 1, 2023)

[2] Sall v. Commissioner, 161 T.C. No. 13

[3] Sall v. Commissioner, 161 T.C. No. 13

[4] Sall v. Commissioner, 161 T.C. No. 13

[5] Sall v. Commissioner, 161 T.C. No. 13