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PROCEDURALLY TAXING tax notes federal

by Jenni Black Jenni Black is a managing director in Citrin Cooperman’s national tax office and the practice leader of the tax procedure and controversy practice. She is also a contributing author for Procedurally Taxing. In this post, Black compares the Tax Equity and Fiscal Responsibility Act and the Bipartisan Budget Act regimes and examines the different approaches the Tax Court used in North Wall and Big Apple to determine whether their respective filing deadlines were jurisdictional. This post reflects the author’s personal views and not necessarily those of Citrin Cooperman. In part 1 of my article analyzing the Tax Court’s opinion in Big Apple Tompkins Realty1 (Big Apple), I provided a summary of the case and set up the discussion on how the Tax Court approached its analysis of whether the filing deadline in the Bipartisan Budget Act was jurisdictional. Let’s compare the two opinions and regimes. Looking back at the opinion in North 2 Wall, the court doesn’t actually analyze the language of section 6226 (TEFRA), except for the filing requirements in section 6226(a) and (b). As I discussed in more detail in my two-part article on

North Wall, the Tax Court focused primarily on three categories to determine whether the filing deadlines in TEFRA were jurisdictional: (1) the structure of TEFRA and number of exceptions to the filing deadline that existed under TEFRA, (2) the history of TEFRA, and (3) the utter disaster that would occur if section 6226 was subject to equitable tolling. (See Tax Notes Federal, Nov. 24, 2025, p. 1357; and Tax Notes Federal, Dec. 1, 2025, p. 1503.) In North Wall, the court held that “the multiple petition deadlines within section 6226 coordinate so as to make a clear statement that the deadlines are jurisdictional.”3 It noted that section 6226(a) and (b) related to timing but, given there were two timing provisions and various codified exceptions to the applicability of TEFRA and who can file a petition, they could not “linguistically speaking” be read to contain implicit exceptions. But wouldn’t the “implicit exceptions” referred to in North Wall be equitable remedies, like equitable tolling? The court puts a lot of emphasis on the “explicit, highly detailed” filing provisions in TEFRA that, working together, ensure there is only a single partnership-level proceeding. While it is core-rect4 that the filing provisions under section 6226(a) and (b) (TEFRA) are much more complicated than the filing provisions under section 6234 (as, under TEFRA, multiple people can file petitions, whereas under BBA there “can be only one”), these filing provisions, as the court notes, do not contain a grant of jurisdiction. The actual jurisdictional grant in TEFRA is in section 6226(f) (TEFRA). The only real discussion of the jurisdictional grant in section 6226(f) 3

Big Apple Tompkins Realty LLC v. Commissioner, 167 T.C. No. 7 (2026).

North Wall Holdings LLC v. Commissioner, 165 T.C. No. 9 (2025). While North Wall was a fully reviewed opinion, Big Apple was not.

The court also noted that a valid final partnership administrative adjustment (TEFRA) or final partnership adjustment (BBA) was required before it could have jurisdiction. 4

In part 2 of my article, I continue the use of “bad apple” puns and again promise to only use each one once (I started running out of them so there are fewer from here on out).

TAX NOTES FEDERAL, VOLUME 192, SEPTEMBER 7, 2026 For more Tax Notes® Federal content, please visit www.taxnotes.com.

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Comparing Apples to Apples: TEFRA vs. BBA, Part 2

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I note that the filing provisions under section 6234 (e.g., 90 days to petition, single petitioner (except for spouses), single proceeding) are largely the same as those in section 6213, which the court has held are jurisdictional (although several circuit courts have disagreed). 6

section 6226(f) not a factor in the court’s decision in North Wall? The opinion in Big Apple does not explain the difference. In Big Apple, the court declined to read the “in accordance with” language to clearly tie jurisdiction to the filing requirements (although it acknowledged that was a plausible reading of the statute) because of Congress’s decision to explicitly use stronger jurisdictional language in section 6234(b). Section 6234(b) provides that, if a partnership wants to file a petition in district court or the Court of Federal Claims, it must make a “jurisdictional deposit” equal to the imputed underpayment and any penalties as set forth in the final partnership adjustment. This deposit is clearly labeled as a jurisdictional requirement for bringing suit in one of those courts. The court explained that when particular language is included in one section of a statute but omitted from another, that Congress is presumed to have deliberately omitted that language. Therefore, the court holds, because section 6234(b) clearly provides that the district court or Court of Federal Claims will have jurisdiction “only if” the deposit is made it undermines the argument that “in accordance with” in section 6234(c) clearly ties the filing requirements in section 6234(a) to the jurisdictional grant as it does not use the “only if” language. Well, that explains it, right? Right? While it might be a-peel-ing to point to the language in section 6234(b) as the reason why the requirements in section 6234(a) are nonjurisdictional, the court’s rationale regarding section 6234(b) and its clear jurisdictional language loses a lot of steam when you realize that TEFRA had its own identical provision in section 6226(e) (TEFRA). That’s right, under TEFRA a petition could also be filed in district court or the Court of Federal Claims, but “only if” a jurisdictional deposit was made. If you put section 6226(e) (TEFRA) next to section 6234(b) you’ll notice that the two sections are substantively identical. The only differences between the two provisions are (1) the identity of the petitioner (partner vs. partnership); (2) the amount of the deposit; and (3) a provision in TEFRA that allows the petitioner to get their deposit back if the case is dismissed due to a petition filed in Tax Court having priority (this

SNJ Ltd. v. Commissioner, 28 F.4th 936, 947 (9th Cir. 2022).

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TAX NOTES FEDERAL, VOLUME 192, SEPTEMBER 7, 2026 For more Tax Notes® Federal content, please visit www.taxnotes.com.

(TEFRA) in North Wall is the reference to the Ninth Circuit’s opinion in SNJ Ltd.,5 which held that section 6226(f) (TEFRA) linked the filing deadline (which is contained in sections 6226(a) and (b) (TEFRA)) to the grant of jurisdiction and, therefore, the petition deadlines in TEFRA are jurisdictional. Throughout the opinion in Big Apple, the court keeps coming back to the fact that TEFRA has complicated petition filing rules. I agree that it does. The grant of jurisdiction isn’t in the filing requirements — it’s in section 6226(f) (TEFRA). The Ninth Circuit, in SNJ Ltd., does not talk about how complex the TEFRA filing requirements are. Instead, it found different language dispositive: “Moreover, section 6226(f)’s statement that ‘[a] court with which a petition is filed in accordance with this section shall have jurisdiction’ does link the filing deadline to a 6 grant of jurisdiction.” That’s right. The Ninth Circuit held that, because section 6226(f) (TEFRA) says that the petition must be filed “in accordance with this section” (which includes the filing requirements), this means the filing requirements are jurisdictional. How do you like them apples? The jurisdictional grant in BBA, which is in section 6234(c) is word-for-word identical to section 6226(f), except for the change in lingo (for example, “partnership item” versus “partnershiprelated item”) and the penalty wording. Like section 6226(f) it says “a court with which a petition is filed in accordance with this section.” In Big Apple, the court held that the “in accordance with” language in section 6234(c) did not clearly tie the filing deadlines to the jurisdictional grant. In North Wall, the “in accordance with” language in section 6226(f) (TEFRA) was not expressly analyzed so there is no discussion of whether “in accordance with” under section 6226(f) (TEFRA) sufficiently ties the jurisdictional grant to the filing requirement although, as mentioned, the Ninth Circuit found this language instructive. But if “in accordance with” in section 6234(c) does not link the jurisdictional grant to the filing requirement, why was the identical language in

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TAX NOTES FEDERAL, VOLUME 192, SEPTEMBER 7, 2026 For more Tax Notes® Federal content, please visit www.taxnotes.com.

cannot happen under BBA because there is only one possible petitioner). So how did the court in North Wall analyze this identical language to explain why this “clear jurisdictional language” did not mean the “in accordance with” language in the jurisdictional grant was insufficient to tie the filing requirements to the jurisdictional grant? You can probably tell by my question what the answer is — they didn’t. The North Wall opinion doesn’t analyze section 6226(e) (TEFRA) at all. It’s barely even mentioned. In Big Apple, the court acknowledges that section 6226(e) (TEFRA) is “nearly mirrored” in section 6234(b) and that case law under section 6226(e) (TEFRA) has held that the deposit is a jurisdictional prerequisite, but that’s all it says. The Tax Court does not explain why the “clear jurisdictional language” in section 6234(b) is so dispositive of the issue of whether the filing requirements are jurisdictional but is not even mentioned (and wasn’t a factor) in North Wall. So, when it comes to the plain language of the statute, I do not see how the Tax Court justifies interpreting the language in section 6234 as “not clearly” tying the jurisdictional grant to the filing requirements (resulting in the filing requirements being nonjurisdictional) when none of that nearly identical language seemed to matter in their analysis of TEFRA. But the plain language was not the other reason they gave — there is also the history of TEFRA. In part 3 of this article, I’ll discuss whether the history of TEFRA should factor into interpretations of BBA and what the impact of section 6234(a) being nonjurisdictional and/or subject to equitable tolling could be. 

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