US Supreme Court Denies Government Cert Petition Based on Latham-Led Opposition

The US Supreme Court denied certiorari in Culp v. Commissioner, preserving a victory for David and Isobel Culp in the Third Circuit.

“We are thrilled that the Supreme Court made the rare decision to deny a certiorari petition filed by the Solicitor General’s Office, and to let the Third Circuit’s landmark decision stand,” said partner Melissa Arbus Sherry, who led the Latham team. “The Third Circuit correctly held that the deadline to petition the Tax Court to review a notice of deficiency is not jurisdictional. With the Court’s denial, we are hopeful that the Commissioner, the Tax Court, and the other courts of appeals will follow the Third Circuit’s lead.”

Under 26 U.S.C. § 6213(a), most taxpayers have 90 days to file a Tax Court petition challenging a notice of tax deficiency. On July 19, 2023, the Third Circuit held in Culp v. Commissioner that the filing deadline in Section 6213(a) is not jurisdictional. The Third Circuit went on to find that equitable tolling — which pauses the running of a statute of limitations in certain circumstances — can apply to the deadline.

The Third Circuit was the first federal court of appeals to hold that the deadline is not jurisdictional after the Supreme Court’s 2022 decision in another Latham-led case, Boechler, P.C. v. Commissioner, provided guidance on determining whether tax filing requirements are jurisdictional. Following the Third Circuit decision, the Internal Revenue Service petitioned the US Supreme Court for review, which Latham opposed on behalf of the Culps.

The Latham team included partner Melissa Arbus Sherry and associates Eric Konopka, Amy Feinberg, and Alexandra Clionsky Kelly. Oliver Roberts of Holtzman Vogel served as co-counsel, and argued the case in the Third Circuit.