Introduction
In a significant development for partnerships subject to the Bipartisan Budget Act of 2015 (BBA) audit regime, the United States Tax Court held in Big Apple Tompkins Realty LLC v. Commissioner, 167 T.C. No. 7 (2026), that the 90-day filing deadline for challenging a Final Partnership Adjustment (FPA) under Internal Revenue Code section 6234(a) is not jurisdictional. Although the court found that the Internal Revenue Service (IRS) properly mailed the FPA, it rejected the IRS’s argument that an untimely petition automatically deprives the Tax Court of jurisdiction. As a result, the court denied the IRS’s motion to dismiss.
The decision marks the first Tax Court opinion directly addressing whether the BBA’s 90-day filing period constitutes a jurisdictional limitation on the court’s authority. Its conclusion aligns with recent Supreme Court jurisprudence that has required a clear congressional statement before procedural filing deadlines are treated as jurisdictional bars.
Background
The case arose from an FPA issued by the IRS on August 11, 2022, to Big Apple Tompkins Realty LLC and its partnership representative. The FPA determined an imputed underpayment of $87,586 and an accuracy-related penalty of $17,517 for the partnership’s 2018 tax year. The partnership filed a petition in Tax Court in November 2023, well beyond the 90-day period specified in section 6234(a). The IRS moved to dismiss for lack of jurisdiction, asserting that the filing deadline was jurisdictional and that the Tax Court therefore lacked authority to hear the case.
The partnership countered that it did not receive the FPA until November 2023 and filed its petition promptly after learning of the adjustment. While the court ultimately concluded that the IRS had properly mailed the FPA, the more consequential issue became whether the filing deadline itself limited the court’s jurisdiction.
The Court’s Analysis
The Tax Court began its analysis with the now-familiar distinction between jurisdictional requirements and claim-processing rules. Under recent Supreme Court precedent, Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), filing deadlines are not treated as jurisdictional unless Congress clearly states that they are. Absent such a clear statement, procedural deadlines generally function as claim-processing rules that regulate litigation but do not limit a court’s power to adjudicate a case.
Examining the text and structure of section 6234, the court observed that subsection (a) provides that a partnership may file a petition within 90 days after the FPA is mailed. The court characterized this language as a permissive filing provision rather than a grant of jurisdiction. In contrast, the jurisdiction-conferring language appears in section 6234(c), which authorizes the court to determine partnership adjustments and related matters. Because the statute does not expressly tie the 90-day deadline in subsection (a) to the jurisdictional grant in subsection (c), the court found no clear indication that Congress intended the deadline to be jurisdictional.
The court therefore concluded that section 6234(a)’s filing deadline is a claim-processing rule rather than a jurisdictional prerequisite. Consequently, a late-filed petition does not automatically deprive the Tax Court of subject matter jurisdiction.
Distinguishing TEFRA Precedent
A noteworthy aspect of the opinion is its treatment of prior partnership-level cases decided under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA). Under TEFRA, courts frequently treated statutory filing deadlines as jurisdictional. The IRS argued that those precedents should control the interpretation of the BBA regime as well.
The Tax Court disagreed. It emphasized that the BBA fundamentally replaced TEFRA’s procedural framework with a new, centralized system of partnership audits and litigation. The TEFRA regime contained a network of interrelated deadlines and procedural rules intended to coordinate participation by multiple partners. By contrast, the BBA focuses on the partnership as a single entity and relies on a partnership representative with exclusive authority to act on behalf of the partnership. Because of these structural differences, the court concluded that TEFRA cases interpreting former statutory provisions did not dictate the treatment of section 6234(a).
Practical Consequences
The significance of Big Apple Tompkins Realty extends beyond the immediate dispute. Prior to this decision, taxpayers and practitioners generally assumed that missing the 90-day filing deadline under the BBA could be fatal to Tax Court review. The court’s holding changes that assumption. Although partnerships should continue to treat the statutory deadline as critically important, a late filing no longer automatically prevents the Tax Court from exercising jurisdiction.
Importantly, the court did not hold that untimely petitions will necessarily be allowed to proceed. Rather, it held only that untimeliness is not a jurisdictional defect. Whether equitable tolling or other doctrines may excuse a late filing remains a separate question. The court expressly left those issues for further consideration
Conclusion
Big Apple Tompkins Realty LLC v. Commissioner represents a major procedural ruling under the BBA partnership audit regime. By holding that the 90-day filing deadline in section 6234(a) is not jurisdictional, the Tax Court joined the broader trend of federal courts requiring clear congressional language before treating procedural deadlines as limits on judicial authority. While partnerships should not view the decision as a license to disregard filing deadlines, the case creates an important opportunity for taxpayers who may have compelling grounds for seeking relief from late-filed petitions. Going forward, the decision is likely to play a central role in future litigation concerning equitable tolling and other defenses to untimely BBA petitions.
Holtz, Slavett, Drabkin & Warner, APLC is a tax controversy and tax litigation law firm consisting of former IRS trial attorneys. We represent taxpayers in all aspects of tax disputes with the IRS and state tax authorities, including IRS partnership audits under the BBA audit regime. To schedule a consultation, please contact us at (310) 550-6200.