Document Type

Amicus Brief

Publication Date


Case Name

Sebelius v. Auburn Regional Medical Center


The Cardozo Tax Clinic represents, for free, low-income taxpayers with respect to their federal income tax matters – both before the Internal Revenue Service and in the federal courts. Occasionally, the Clinic’s assistance has been sought after those individuals, on their own, filed a document late – either with the IRS or the courts -- under a time deadline set out in the Internal Revenue Code or in a regulation promulgated thereunder. Usually, no extraordinary equitable reasons occurred that might excuse such late filing. See, e.g., Iljazi v. Commissioner, T.C. Summary Op. 2010-59 (client simply filed administrative claim for equitable innocent spouse relief beyond the time permitted in 26 C.F.R. § 1.6015-5(b)). But, on occasion, there have been good equitable reasons for the late filing. So, in recent years, the Clinic has argued before the courts for the equitable tolling of certain tax-related time limits. See, e.g., Gormeley v. Commissioner, T.C. Memo. 2009-252, appeal conceded by government (3d. Cir. 2010) (client sought equitable tolling of 90-day period at § 6015(e)(1) in which to file Tax Court petition seeking equitable innocent spouse relief determination).

Besides representing its own clients, the Cardozo Tax Clinic has submitted amicus briefs to two Circuit Courts of Appeal arguing for equitable tolling. Mannella v. Commissioner, 631 F.3d 115 (3d Cir. 2011) (brief arguing for equitable tolling of time period in 26 C.F.R. § 1.6015-5(b) called “effective[]” and caused remand); Terrell v. Commissioner, 625 F.3d 254 (5th Cir. 2010) (brief arguing for equitable tolling of time period at § 6015(e)(1); issue not reached by court).

Counsel for the Clinic, its Director, has also published articles arguing for equitable tolling of several time periods contained in the Internal Revenue Code. Carlton M. Smith, “Friedland: Did the Tax Court Blow Its Whistleblower Jurisdiction?”, 131 Tax Notes 843 (May 23, 2011) (arguing that the 30-day period at § 7623(b)(4) to file a Tax Court petition to review IRS’ denial of a whistleblower award is subject to equitable tolling); Carlton M. Smith, “Equitably Tolling Innocent Spouse and Collection Due Process Periods”, 126 Tax Notes 1106 (Mar. 1, 2010).

The Cardozo Tax Clinic does not represent any particular client in filing this brief. However, anticipating future clients who may want to argue for equitable tolling of certain Internal Revenue Code time limits, the Clinic is concerned that what this Court may say in this case in comparing the Medicare statute at issue herein to the statute at issue in United States v. Brockamp, 519 U.S. 347 (1997), may adversely affect future lower court opinions concerning jurisdiction and equitable tolling in the tax area.