A Tax Court petition is how you challenge a statutory notice of deficiency, the IRS's 90-day letter, before paying the proposed tax. You must file it with the United States Tax Court, not with the IRS, within 90 days of the notice's mailing date, or 150 days if it is addressed to you outside the United States. Late petitions are generally dismissed.
If you are holding a 90-day letter, do not wait. Call (415) 754-0115 to schedule a free consultation, or use our contact page and mention the date printed on the notice.
Recognizing a notice of deficiency
The notice usually carries the words "Notice of Deficiency" at the top and often comes as Letter 3219 or a CP3219 series notice. It states the tax years, the proposed deficiency, any penalties, and a date described as the last day to file a petition with the Tax Court. It usually follows an audit, an underreporting notice such as a CP2000, or a return the IRS prepared on your behalf after you did not file.
How it differs from other IRS letters
- A 30-day letter proposes audit changes and invites an administrative appeal. It is not a ticket to Tax Court.
- A collection notice, such as a final notice of intent to levy, carries separate hearing rights with a 30-day deadline.
- A notice of deficiency is the specific letter that opens the door to Tax Court for deficiency cases.
The 90-day clock and why it is so strict
The deadline runs from the date the IRS mailed the notice, not the date you received it. If the notice itself lists a later last day to file, a petition filed by that date is treated as timely. When the final day falls on a weekend or a legal holiday in the District of Columbia, the deadline moves to the next business day.
Courts have debated whether the deadline can ever be excused, and the answer can depend on where you live. The safe approach is to treat it as absolute. During the 90 days, and while a timely case is pending, the IRS generally cannot assess the tax or begin collection on it.
Common mistakes that cost people their day in court
- Sending the petition to the IRS instead of the Tax Court.
- Assuming that calling the IRS or mailing more documents pauses the clock. It does not.
- Waiting for a prior appeal or amended return to be processed.
- Filing in the wrong court. Other federal courts generally require you to pay first.
What goes into a Tax Court petition
The Tax Court accepts electronic filing through its online case system, as well as paper filing by mail. Self-represented taxpayers often use the court's simplified petition form. Whatever the format, a petition generally:
- Includes a copy of the notice of deficiency.
- States the years and amounts in dispute.
- Lists each error you believe the IRS made.
- States the facts that support your position.
- Requests a place of trial. San Francisco is one of the court's trial cities and is the natural choice for many East Bay taxpayers.
Choosing small tax case procedures
If the amount in dispute for each year falls below the statutory limit, you can elect small tax case, or "S case," procedures. Trials are less formal and rules of evidence are relaxed.
The trade-off with an S case
A small tax case decision cannot be appealed by either side and does not serve as precedent. For many individuals that is an acceptable exchange for a simpler process. When the legal issue is uncertain or the stakes extend to future years, regular procedures may make more sense. The election can be discussed with counsel before filing.
Using the 90 days well
The petition does not need to contain every argument and document, but it should be accurate and complete enough to identify each disputed adjustment. Use the remaining time to collect the records the examiner rejected or never saw, and write down the story of each disputed item while memories are fresh. Those materials will drive later settlement talks.
After you file: IRS Counsel and settlement
Once your petition is filed, the IRS Office of Chief Counsel represents the Commissioner. If your case did not go through the Independent Office of Appeals earlier, it is often referred there for settlement discussions first. Counsel is expected to meet with you informally and exchange information before using formal discovery. The parties then prepare stipulations, written agreements on facts and documents, which narrow what needs to be tried.
Many Tax Court cases resolve by agreement before trial, entered as a stipulated decision. If a case does go to trial, a judge hears testimony and reviews evidence, then issues a written opinion. Because the record built during the examination often carries into Tax Court, our guide to IRS audit help in California is useful background on that earlier stage.
How an attorney can help
The Somal Law Firm, led by attorney Bob Somal, Esq. in Pleasanton, handles IRS disputes, tax audits and appeals for individuals and small businesses in the Tri-Valley, Alameda and Contra Costa Counties. Counsel can confirm your deadline, prepare and file the petition, advise on the S case election, and negotiate with IRS Counsel and Appeals. If the result leaves a balance you cannot pay, our article on what to do if you owe back taxes covers the options that follow.
Frequently asked questions
Can I file a Tax Court petition without a lawyer?
Yes. The court allows self-represented taxpayers, and its simplified forms are designed for them. People often bring in counsel when the issues are complex or settlement negotiations are involved.
What if I never received the notice of deficiency?
The IRS must mail the notice to your last known address. If you learn of a notice late, speak with an attorney immediately about whether the notice was valid and what options remain.
Do I have to pay before going to Tax Court?
No. That is the main advantage of the Tax Court. Interest continues to accrue, however, on any amount ultimately owed.
When you reach out, the firm will check the mailing date and last day to file, then schedule a free consultation to discuss the petition. Call (415) 754-0115 first, or send the details through the contact form.
Attorney Advertising. This article is general legal information for Bay Area residents, not legal advice, and does not create an attorney–client relationship. Every situation is different — please consult a licensed attorney about your specific circumstances.