By Daniel Gunn
Introduction
What if responsibly paying your taxes forfeited your right to challenge the Internal Revenue Service? That is what almost happened to Jennifer Zuch, whose diligence in making estimated tax payments led to a legal nightmare.[1] Zuch has been embroiled in a dispute with the Internal Revenue Service (IRS) for over a decade.[2] The controversy originally centered on whether the IRS should have partially credited $50,000 in tax payments made by Zuch and her then-husband toward Zuch’s 2010 tax liability.[3] After the IRS informed Zuch of its intent to levy her property, Zuch petitioned the Tax Court to review the decision.[4] Throughout the review, she continued making estimated tax payments in subsequent years, often resulting in overpayments.[5] Rather than refunding these overpayments, the IRS unilaterally applied them to her 2010 tax liability, even though Zuch contended that she already paid the 2010 liability.[6] Once the overpayments reduced her alleged 2010 liability to zero, the IRS moved to dismiss the Tax Court proceeding as moot.[7] The Tax Court agreed, holding that because Zuch fully paid the disputed liability, it no longer had jurisdiction to determine whether Zuch actually owed the liability.[8]
As a result, Zuch’s right to Tax Court review over whether she owed the liability evaporated.[9] The dismissal not only eviscerated a decade’s worth of legal effort, but also risks potentially barring her from seeking a refund in a separate suit because of the statute of limitations.[10] If unchallenged, the decision could have permanently foreclosed Zuch’s ability to dispute the underlying liability and left her without any recourse.[11] Fortunately for Zuch, the United States Court of Appeals for the Third Circuit reversed the Tax Court’s decision, ruling that her case was not moot and that the Tax Court retained jurisdiction to determine whether she overpaid her 2010 liability.[12] However, the Third Circuit’s decision created a circuit split with the Fourth and D.C. Circuits, which held that the subsequent payment of the disputed liability mooted the remaining issues before the Tax Court.[13]
The United States Supreme Court granted certiorari and will soon decide whether the IRS can effectively strip the Tax Court of jurisdiction by unilaterally applying estimated tax payments to a disputed liability.[14] The Supreme Court’s ruling could have broad implications for taxpayers seeking relief through the Tax Court.[15] For this reason, tax practitioners should closely monitor this case to better understand the scope of the Tax Court’s jurisdiction and protect their clients from a similar procedural pitfall.
I. A Brief Overview of Tax Procedure
A basic understanding of tax procedure is necessary to understand the issues involved in Zuch v. Commissioner.[16] Taxpayers generally litigate against the IRS in one of three forums: United States District Courts, the United States Claims Court, and the United States Tax Court.[17] United States District Courts and the United States Claims Court are refund tribunals—meaning taxpayers must pay the disputed tax liability upfront before filing an administrative refund claim.[18] If the IRS denies the administrative claim, the taxpayer may then sue for a refund in either a United States District Court or the United States Claims Court.[19]
In contrast, the United States Tax Court offers taxpayers the ability to challenge IRS tax assessments without first paying the disputed tax.[20] The Tax Court is an Article I court, meaning it is a specialized tribunal Congress created with jurisdiction limited to specific areas of tax law.[21] Unlike Article III courts, which derive their authority from the Constitution, Congress defines the Tax Court’s jurisdiction.[22] The Tax Court can only decide cases that fall within the parameters set by statute.[23] Taxpayers seeking to resolve disputes in Tax Court have two main avenues they can follow, and Congress granted the Tax Court different jurisdiction depending on which avenue applies.[24] These avenues commence either a deficiency proceeding or a Collection Due Process (CDP) proceeding in the Tax Court.[25]
The first avenue of Tax Court jurisdiction arises when the taxpayer disputes the existence or amount of tax owed.[26] When the IRS determines that a taxpayer owes additional taxes, it issues a notice of deficiency, which outlines the amount owed and the reasons for the determination.[27] Upon receiving the notice, the taxpayer may file a petition in the Tax Court to challenge the IRS’s determination.[28] This process commences a deficiency proceeding.[29] Deficiency proceedings are the usual method by which taxpayers dispute the existence or amount of their tax liabilities in Tax Court.[30] In deficiency proceedings, the Tax Court has broad jurisdiction to determine the amount of tax owed from the years at issue and order a refund of overpayments.[31]
The second avenue of Tax Court jurisdiction arises when the taxpayer disputes the collection methods employed by the IRS.[32] If the IRS intends to levy a taxpayer’s property, it first must send the taxpayer a notice of intent to levy.[33] The taxpayer may then request a hearing before the IRS Office of Appeals, known as a CDP hearing.[34] After the IRS Office of Appeals makes its determination, the taxpayer may petition the Tax Court for review of the decision in a CDP proceeding.[35] However, the Tax Court’s jurisdiction in CDP proceedings is more limited than in deficiency proceedings: it may review only those issues properly raised in the CDP hearing.[36]
In the CDP hearing, taxpayers may properly raise any relevant issues relating to “the unpaid tax or the proposed levy.”[37] In this context, unpaid tax does not refer to the existence or amount of a tax liability but instead refers to the collection methods the IRS uses to recover the deficiency.[38] As a result, taxpayers are usually limited in CDP hearings to issues regarding the IRS’s enforcement mechanisms rather than the underlying tax assessment.[39] Under usual circumstances, once the IRS fully collects the tax deficiency, all issues before the Tax Court in a CDP proceeding become moot because the IRS is no longer attempting to collect on a debt.[40]
However, in limited circumstances, a taxpayer may never receive a notice of deficiency from the IRS.[41] Without this notice, the taxpayer has no right to initiate a deficiency proceeding before the IRS begins collection actions and issues a notice of intent to levy.[42] In this circumstance, a taxpayer would normally have no right to dispute the existence or amount of the tax liability in the Tax Court and be forced to dispute the liability in a refund tribunal after paying the alleged tax liability.[43]
Recognizing the potential unfairness of this situation, Congress created an exception: if a taxpayer did not previously have an opportunity to dispute the tax liability in a deficiency proceeding, the taxpayer may raise the issue in the CDP hearing.[44] In such cases, the Tax Court’s jurisdiction expands—allowing it not only to review the IRS’s collection methods but also to resolve disputes concerning the amount or existence of the underlying tax liability.[45] This brings us to the central issue in Zuch v. Commissioner: does the Tax Court retain its expanded jurisdiction to address tax liability disputes in CDP proceedings once the taxpayer fully pays the disputed tax and the IRS has ceased collection efforts? This question is not only crucial to the outcome of Zuch’s case but also to the broader interpretation of the Tax Court’s authority in post‑payment disputes.[46]
II. Mootness Issues in Zuch v. Commissioner
The core conflict between Zuch and the IRS concerns whether the IRS should have credited a subsequent payment toward Zuch’s outstanding tax liability.[47] Zuch never received a notice of deficiency regarding this tax liability, and she could not dispute the existence or amount of the alleged deficiency in a deficiency hearing.[48] As a result, Zuch was entitled to dispute the underlying tax liability in her CDP hearing.[49] The issues properly before the CDP hearing—and consequently subject to Tax Court review—included the appropriateness of the collection action and the existence and amount of the tax deficiency.[50]
The parties do not dispute that the Tax Court possessed jurisdiction to resolve these issues when Zuch first filed the suit because the IRS was then attempting to collect the tax liability.[51] However, the IRS argues that the suit became moot once the IRS offset the disputed tax liability with overpayments Zuch made in subsequent tax years.[52] After Zuch fully paid the liability, the IRS terminated its collection action.[53] The IRS contends that disputes regarding the underlying tax liability cannot exist independent of a collection action in a CDP proceeding.[54] If this argument is correct, no remaining issues would fall within the Tax Court’s jurisdiction, requiring dismissal of the proceeding as moot.[55]
Mootness is a constitutional principle that restricts courts to adjudicating only live cases or controversies between litigants.[56] If no dispute between the litigants is present, or the court is unable to grant any relief whatsoever to the prevailing party, the court must dismiss the action as moot.[57] Here, both parties concede that Zuch still possesses a live controversy—whether she is entitled to a refund.[58] However, the parties dispute whether the Tax Court retained jurisdiction to decide this issue within a CDP proceeding.[59] Moreover, even if the Tax Court retained independent jurisdiction over the underlying tax liability, the parties dispute whether the Tax Court could grant adequate relief.[60] The IRS contends that such action must now be brought in a refund tribunal, while Zuch claims the Tax Court retained jurisdiction and can grant a remedy to the parties.[61]
A. Tax Court Jurisdiction under CDP Proceedings
The parties disagree as to whether the Tax Court has sufficient jurisdiction to resolve the remaining controversies between the parties. This dispute involves whether CDP proceedings maintain jurisdiction over the underlying tax liability after all collection actions have ceased and whether the Tax Court can review the IRS’s decision to set off her disputed liability with subsequent overpayments.
- Independent Jurisdiction over the Underlying Tax Liability
The IRS—supported by the Fourth and D.C. Circuits—contends that the Tax Court lost jurisdiction to review the underlying tax liability once Zuch fully paid the liability and the collection action ceased.[62] The Tax Court is a court of limited jurisdiction, and the statute strictly limits CDP proceeding jurisdiction.[63] Internal Revenue Code (I.R.C.) § 6330(c)(2) generally limits CDP hearings to tax collection controversies, not disputes over the existence or amount of the underlying liability.[64] While I.R.C. § 6330(c)(2)(B) allows taxpayers who did not have an opportunity to dispute the existence or amount of the tax liability to do so in the CDP hearing, the IRS determined that this provision nonetheless failed to preserve Zuch’s action.[65]
Relying on decisions from the Fourth and D.C. Circuits, the IRS maintains that disputes regarding the amount or existence of the tax liability may be resolved in CDP hearings only while an active collection action exists, and CDP proceedings cannot exist independently of a collection action.[66] As a CDP hearing is primarily meant to assess the appropriateness of collection actions, the IRS contends that disputes over tax liability can be addressed in a CDP proceeding only when tied to an active collection effort.[67] The IRS argues that I.R.C. § 6330(c)(2)(B) reflects this limitation through its use of the term “underlying tax liability.”[68] According to the IRS, using the word underlying presupposes the existence of a collection action, and CDP jurisdiction cannot exist without such action.[69] The McLane v. Commissioner court similarly held that the term must be read in context and cannot apply when there is no collection action to underlie.[70] Therefore, the IRS believes that I.R.C. § 6330(c)(2)(B) acts as a mere defense to a purposed levy—not an interdependent basis of jurisdiction.[71] Once all collection actions cease, the disputed defense ceases to relate to a collection action, and the Tax Court loses jurisdiction to review the validity of the defense.[72]
In contrast, Zuch argues that the Tax Court retains jurisdiction notwithstanding the cessation of the collection efforts.[73] She maintains that I.R.C. § 6330(c)(2)(B) grants the Tax Court authority to review the existence and amount of the tax liability independent of any collection action.[74] As the tax liability remains disputed by the parties, and I.R.C. § 6330(c)(2)(B) authorizes the Tax Court to resolve such disputes, Zuch asserts that an active controversy persists under Tax Court jurisdiction.[75]
Zuch contends that Congress did not intend to allow the IRS to unilaterally strip the Tax Court of jurisdiction by simply abandoning collection efforts.[76] While a collection action is necessary to initiate a CDP hearing, she argues that collection actions need not persist for the Tax Court to resolve disputes regarding the underlying tax liability.[77] Congress expressly stated that the Tax Court “shall have jurisdiction” to review determinations made by the Appeals Office.[78] Therefore, Zuch asserts that the Tax Court should be allowed to review all live controversies decided by the Appeals Office, regardless of whether the underlying levy remains.[79]
Zuch provides three main rationales for her assertion that the Tax Court retains CDP jurisdiction when the underlying collection action ceases. First, judicial efficiency supports a finding that the Tax Court can resolve these issues.[80] If the Tax Court were deprived of jurisdiction, taxpayers would be forced to file a refund suit in a refund tribunal to resolve the remaining disputes.[81] This would burden district courts, duplicate efforts and costs for both parties, and require the IRS to defend unnecessary litigation.[82] Resolving these disputes within the Tax Court, which already resolves these issues in deficiency proceedings, would streamline the process and reduce inefficiencies.[83]
Second, Zuch argues that like other federal statutes, I.R.C. § 6330 should determine jurisdictional status at the time the taxpayer initiates the action.[84] For example, in federal diversity suits, subsequent reductions in the amount recoverable do not divest a federal court of jurisdiction so long as the amount in controversy exceeded $75,000 at the time of filing.[85] Similarly, in class actions, a court’s decision to deny certification does not eliminate jurisdiction if “jurisdiction was properly invoked as of the time of filing.”[86] Applying this principle, the Tax Court should retain jurisdiction over the underlying tax liability so long as a collection action existed when the CDP proceeding commenced.[87]
Third, Zuch emphasizes the strong presumption favoring judicial review of administrative actions.[88] This presumption dictates that a statute that is “reasonably susceptible to divergent interpretation” must be read with the traditional understanding that administrative determinations are generally subject to judicial review.[89] As I.R.C. § 6330 is at least reasonably open to interpretation regarding the Tax Court’s jurisdiction to review the CDP hearing—an administrative determination—courts should construe the statute to preserve judicial review.[90]
Judge Vasquez, dissenting in Green-Thapedi v. Commissioner, a Tax Court case with similar procedural issues, emphasized that “[r]emedial legislation should be construed broadly and liberally to effectuate its purpose.”[91] I.R.C. § 6330 is remedial in nature, intended to provide taxpayers due process in collection matters.[92] As it is hard to imagine that Congress intended to bifurcate collection and refund actions in a way that increases costs and reduces efficiency, Zuch contends courts should interpret I.R.C. § 6330 to grant the Tax Court jurisdiction to resolve the remaining issues even after collection efforts have ended.[93]
- Jurisdiction to Review the Setoff
The collection action in Zuch ceased because the IRS set off the disputed tax liability with overpayments made in subsequent years.[94] The IRS contends that this action precludes any further CDP review because it would necessarily require the Tax Court to review the propriety of the IRS’s setoff.[95] The IRS argues the Tax Court lacks jurisdiction to review setoffs, while Zuch contends the Tax Court possesses this power.
A setoff occurs when two parties are mutually indebted to each other.[96] In such cases, setoffs allow the parties to subtract the lesser debt from the larger one, so that the debtor with the greater outstanding obligation must pay only the net balance due.[97] In tax law, a setoff may occur when the taxpayer owes an unpaid liability to the IRS, while the IRS simultaneously owes the taxpayer a refund for tax overpayments.[98] I.R.C. § 6402 expressly grants the IRS the right of setoff; however, the IRS possesses the right of setoff independent of statutory authority through the common law’s general grant to creditors.[99]
Importantly, I.R.C. § 6512(b)(4) expressly deprives the Tax Court of jurisdiction to restrain or review setoffs.[100] Moreover, the Tax Court in Greene-Thapedi and the United States Court of Appeals for the Second Circuit in Belloff v. Commissioner have previously held that setoffs do not constitute a collection action because a collection action is an administrative proceeding, whereas setoffs are a common‑law right.[101] As a result, the IRS contends that the CDP proceeding’s jurisdiction granted under I.R.C. § 6330(c)(2) does not extend to reviewing setoffs.[102] Accordingly, the IRS argues that any further proceeding in Tax Court would necessarily require a review of the setoff, which Congress expressly prohibited.[103] As such, the IRS asserts the Tax Court must dismiss the case.[104]
Conversely, the Third Circuit held that the Tax Court retains jurisdiction to review setoffs in CDP proceedings, notwithstanding the statutory prohibition in I.R.C. § 6512(b)(4).[105] The Third Circuit found that I.R.C. § 6512(b)(4) limits the Tax Court’s jurisdiction only “under this subsection.”[106] As I.R.C. § 6512(b) pertains only to the Tax Court’s jurisdiction in deficiency proceedings, the Third Circuit reasoned that the statutory limitation did not apply to CDP proceedings.[107]
While Congress did not expressly grant the Tax Court the authority to review setoffs in CDP proceedings, the Third Circuit opined that Congress implicitly granted the Tax Court the power to review setoffs.[108] This implicit grant arises from the common‑law origins of the right of setoff.[109] The Third Circuit determined the IRS’s statutory right to setoff supplemented, and did not displace, the preexisting common‑law right.[110] As the purpose of a CDP proceeding is to provide taxpayers “protections in dealing with the IRS that are similar to those they would have in dealing with any other creditor” and Congress has not expressly limited the Tax Court’s authority to review setoffs in CDP proceedings—like it did in deficiency proceedings—the Third Circuit reasoned that the Tax Court may review setoffs in a CDP proceeding.[111]
The Third Circuit also found that an IRS setoff should not render a case moot, applying the well‑established mootness principle that a defendant cannot voluntarily cease a challenged practice to deprive a court of power to determine the legality of the practice.[112] It logically follows that a defendant cannot unilaterally complete a challenged practice to render a case moot, as long as the court can still grant adequate relief to the parties.[113] Ultimately, as the underlying purpose of I.R.C. § 6330 in the broader statutory framework is to ensure “collect[ion of] the correct amount of tax,” the Tax Court retains jurisdiction to resolve questions regarding the tax liability regardless of whether the IRS setoff the disputed tax liability.[114]
B. Adequate Relief
Even if the Tax Court retained jurisdiction to review the remaining issues, Zuch’s case would still be moot if the court is unable to grant adequate relief to the parties.[115] The IRS argues that the only relief the Tax Court can grant in a CDP proceeding is the rejection of a proposed levy.[116] To grant relief to Zuch once the underlying tax is paid, the IRS contends that the Tax Court would need separate jurisdiction to determine an overpayment and order a refund.[117] Without such powers, the Tax Court could not grant Zuch relief because it would be powerless to return Zuch’s money to her, and the case would be moot due to lack‑of‑relief grounds.[118] As Congress expressly granted the Tax Court overpayment and refund powers in other circumstances, the IRS argues that Congress’s silence regarding the Tax Court’s overpayment and refund jurisdiction in CDP proceedings indicates that Congress did not intend to grant the Tax Court such jurisdiction.[119] Thus, the IRS contends that the Tax Court lacks authority to issue any relief to the taxpayer and should dismiss the case as moot.[120]
In support, the IRS points to Green‑Thapedi, which held that the Tax Court lacks overpayment and refund jurisdiction in CDP proceedings.[121] The Green‑Thapedi court reviewed the history of the Board of Tax Appeals, the predecessor of the Tax Court, and found that the Board lacked overpayment jurisdiction and refund jurisdiction until Congress expressly granted such powers in 1926 and 1988, respectively.[122] Even then, the Board possessed these powers only in deficiency proceedings.[123] Further, the Senate had previously proposed granting refund jurisdiction to the Tax Court in actions where the taxpayer already had a deficiency proceeding pending, but this proposal was rejected in conference.[124] The Green‑Thapedi court found that this legislative history clearly indicated that the Tax Court retains overpayment and refund jurisdiction only when expressly granted by Congress.[125] Since no legislation expressly grants overpayment and refund jurisdiction in CDP proceedings, the IRS contends that the Tax Court lacks such powers.[126]
Zuch contends that the Tax Court could grant her adequate relief if it were to rule on the dispute.[127] Adequate relief may come from the Tax Court’s power to issue a declaratory judgment.[128] The Tax Court is generally authorized to issue injunctive relief in CDP proceedings.[129] As a declaratory judgment is a “milder” form of an injunction, Zuch argues the Tax Court is also authorized to issue declaratory judgments.[130] Further, Zuch contends that the Declaratory Judgment Act does not abridge the Tax Court’s power to issue a declaratory judgment.[131]
The Declaratory Judgment Act authorizes federal courts “except with respect to Federal taxes” to “declare the rights and other legal relations of any interested party seeking such declaration.”[132] Thus, it would appear that the Declaratory Judgement Act expressly prohibits the Tax Court from issuing declaratory judgments. However, courts have uniformly held that a court must read the Declaratory Judgment Act, Internal Revenue Code, and Tax Anti‑Injunction Act together.[133] When read together, courts have determined that the Declaratory Judgment Act does not bar declaratory judgments where the court is otherwise permitted to issue an injunction.[134]
If the Tax Court is authorized to issue a declaratory judgment, such judgment could grant Zuch adequate relief for two reasons.[135] First, if granted, Zuch contends that the IRS would be “substantially likely” to issue Zuch a refund once the Tax Court issued such an authoritative holding, even if the IRS is not directly bound by the court’s determination.[136] Second, even if the IRS refuses to issue a refund, Zuch argues such declaration would still have a preclusive effect.[137] In a later refund suit between the parties, the refund tribunal would be required to order the IRS to issue the refund because the court could not relitigate the issues based on res judicata estoppel principles.[138] Contrarily, the IRS would be entitled to rely on a declaratory judgment in its favor in a subsequent suit.[139] Given the potential relief required to defeat a motion for dismissal based on mootness is a low burden and requires only that some relief may be granted, Zuch argues such declaratory relief satisfies this requirement.[140]
Conclusion
While situations such as the one Zuch faces are rare, this case highlights the ongoing uncertainty surrounding the Tax Court’s authority in CDP proceedings.[141] Fortunately, the Supreme Court granted certiorari to resolve the present circuit split regarding the scope of the Tax Court’s power in CDP proceedings.[142] The Court will need to address both the extent of the Tax Court’s jurisdiction and the available remedies it may grant to determine whether Zuch’s case is moot. Depending on the Court’s decision, CDP proceedings may remain a venue of limited recourse, or it may be expanded to include powers like those in deficiency proceedings.
[1] See generally Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024).
[2] Id. at 88–91.
[3] Id.
[4] Id. at 90.
[5] Id. at 91.
[6] Id.
[7] Id.
[8] Id.
[9] See id.
[10] The timeliness of a potential refund suit is disputed. See id. at 103 n.41. While the IRS originally asserted that the statute of limitations barred Zuch’s potential refund claim, it now contends that the statute of limitations may not have yet been triggered. Id. Generally, a two‑year statute of limitations is triggered once the taxpayer receives a notice of disallowance under I.R.C. § 6532(a)(1). Id. As Zuch never received a notice of disallowance, her refund suit should still be timely. Id. However, the Tucker Act presently bars any suit against the United States “unless the complaint is filed within six years after the right of action first accrues.” 28 U.S.C. § 2401(a). Zuch’s right to file a refund claim accrued over six years ago. Zuch, 97 F.4th at 103 n.41. Thus, the Tucker Act may bar her refund claim. Id. While the Court of Federal Claims has long held that I.R.C. § 6532 preempts the general statute of limitations under the Tucker Act, three district courts have held that I.R.C. § 6532 and the Tucker Act both apply to refund claims and that the Tucker Act serves as an outer bound for refund claims. Id. This dispute is ripe for discussion but will not be addressed further in this post.
[11] See Zuch, 97 F.4th at 103 n.41.
[12] Id. at 86.
[13] Compare id., with McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022), and Willson v. Comm’r, 805 F.3d 316 (D.C. Cir. 2015).
[14] See Zuch, 97 F.4th 81, cert. granted, No. 24-416, 2025 WL 65915 (2025) (mem.).
[15] See generally Caleb Smith, Zuch: Consequential on Many Levels, Procedurally Taxing (May 22, 2024), https://www.taxnotes.com/tax-notes-federal/litigation-and-appeals/zuch-consequential-many-levels/2024/05/27/7k6zz; Carlton M. Smith, Zuch Causes Circuit Split on CDP Mootness, Procedurally Taxing (May 28, 2024), https://www.taxnotes.com/tax-notes-today-global/litigation-and-appeals/zuch-causes-circuit-split-cdp-mootness/2024/06/03/7k792.
[16] Zuch, 97 F.4th at 86.
[17] John A. Miller & Jeffery A. Maine, The Fundamentals of Federal Taxation 11 (6th ed. 2023).
[18] Id.
[19] Id.
[20] Id.
[21] See Zuch, 97 F.4th at 92.
[22] See Sunoco Inc. v. Comm’r, 663 F.3d 181, 187 (3d Cir. 2011).
[23] See id.
[24] Zuch, 97 F.4th at 86–87.
[25] Id.
[26] Id.
[27] Julia Kagan, Notice of Deficiency: What it Means, Examples, Investopedia, https://www.investopedia.com/terms/n/notice-of-deficiency.asp [https://perma.cc/JLP5-RQBQ] (last updated July 19, 2020).
[28] Zuch, 97 F.4th at 86–87.
[29] Id. at 87.
[30] See id.
[31] Id.
[32] Id.
[33] Id.
[34] Id.
[35] I.R.C. § 6330(d)(1).
[36] See id. § 6330(d)(1); Zuch, 97 F.4th at 87.
[37] I.R.C. § 6330(c)(2)(A).
[38] Zuch, 97 F.4th at 87–88.
[39] Id. at 88.
[40] See Willson v. Comm’r, 805 F.3d 316, 320–21 (D.C. Cir. 2015).
[41] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 1, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *1; see also McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022); Willson, 805 F.3d at 317–20.
[42] See I.R.C. § 6213(a).
[43] See I.R.C. §§ 6330(d)(1), 6330(c)(2)(A).
[44] I.R.C. § 6330(c)(2)(B).
[45] See I.R.C. § 6330(d)(1); Zuch, 97 F.4th at 87.
[46] See generally Smith, supra note 15.
[47] Zuch, 97 F.4th at 88–90.
[48] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 1–3, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *1–3; see also Zuch, 97 F.4th at 92.
[49] Zuch, 97 F.4th at 90.
[50] Id. at 92.
[51] See id. at 92 n.22.
[52] See Petition for a Writ of Certiorari at 8, Zuch v. Comm’r, 2025 WL 65915 (2025) (No. 24-416), 2024 WL 4504215 at *10.
[53] See id.
[54] See id. at 8–11.
[55] See id.
[56] Mootness is rooted in the Constitution’s restriction of federal court power to “[c]ases” and “[c]ontroversies” in Article III. U.S. Const. art III, § 2. As the Tax Court is an Article I court, the Tax Court is not technically constrained by mootness doctrine. However, the Tax Court has voluntarily applied this limitation to itself. See Zuch, 97 F.4th at 92; Battat v. Comm’r, 148 T.C. 32, 46 (2017); Zevalkink v. Brown, 102 F.3d 1236, 1243 (Fed. Cir. 1996).
[57] See Zuch, 97 F.4th at 93.
[58] See Reply Brief for the Petitioner at 3–6, Zuch v. Comm’r, 97 F.4th 81 (2024) (No. 24-416), 2024 WL 5233523 at *3–6.
[59] See id.
[60] See id. at 13–14.
[61] See id. at 14–15; Brief in Opposition at 7, Zuch v. Comm’r, 2025 WL 65915 (2025) (No. 24-416), 2024 U.S. S. CT. Briefs Lexis 4363 at *7.
[62] See Petition for a Writ of Certiorari, supra note 52, at 8–12. See generally McLane v. Comm’r, 24 F.4th 316 (4th Cir. 2022); Willson v. Comm’r, 805 F.3d 316 (D.C. Cir. 2015).
[63] McLane, 24 F.4th at 318.
[64] See I.R.C. § 6330(c)(2).
[65] See Petition for a Writ of Certiorari, supra note 52, at 8–12.
[66] See id. See generally McLane, 24 F.4th 316; Willson, 805 F.3d 316.
[67] See Petition for a Writ of Certiorari, supra note 52, at 8–12.
[68] See id.
[69] See id.
[70] McLane, 24 F.4th at 318–19.
[71] See Brief of the Legal Services Center of Harvard Law School as Court Appointed Amicus Curiae in Support of Neither Party at 5, Zuch v. Comm’r, 97 F.4th 81 (3d Cir. 2024) (No. 22-2244), 2023 WL 4585393 at *5.
[72] See Petition for a Writ of Certiorari, supra note 52, at 8–12.
[73] See Brief in Opposition, supra note 61, at 24–26.
[74] See id.
[75] See id.
[76] See id. at 24–30.
[77] See id.
[78] Id. at 25.
[79] See id. at 24–30.
[80] See id.
[81] See id. at 26–27.
[82] See id. at 27.
[83] See id. at 27–30.
[84] See id.
[85] See id. at 27–28.
[86] See id. at 28 (quoting Coba v. Ford Motor Co., 932 F.3d 114, 120 (3d Cir. 2019)).
[87] See id. at 30 (quoting Coba, 932 F.3d at 120).
[88] See id. at 35–36.
[89] See id. (quoting Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020)).
[90] See id.
[91] See Greene-Thapedi v. Comm’r, 126 T.C. 1, 15 (2006) (Vasquez, J., dissenting).
[92] See id.; see also I.R.C. § 6330.
[93] See id.; Brief in Opposition, supra note 61, at 35–36.
[94] Zuch v. Comm’r, 97 F.4th 81, 91 (3d Cir. 2024).
[95] See Petition for a Writ of Certiorari, supra note 52, at 12–14.
[96] Zuch, 97 F.4th at 95–96.
[97] Id.
[98] See, e.g., id. at 91.
[99] Id. at 94–95.
[100] See I.R.C. § 6512(b)(4).
[101] See Greene-Thapedi v. Comm’r, 126 T.C. 1, 7–8 (2006); Belloff v. Comm’r, 996 F.2d 607 (2d Cir. 1993).
[102] See Zuch, 97 F.4th at 95 n.26.
[103] See Petition for a Writ of Certiorari, supra note 50, at 12–14; Zuch, 97 F.4th at 95–96.
[104] See Petition for a Writ of Certiorari, supra note 50, at 7–8; Zuch, 97 F.4th at 95–96.
[105] Zuch, 97 F.4th at 95.
[106] Id.
[107] Id.
[108] Id.
[109] Id.
[110] Id.
[111] Id. at 95–97.
[112] See id. The IRS may “‘not unilaterally oust the Tax Court from jurisdiction’—neither in a deficiency case nor in a CDP case.” Vigon v. Comm’r, 149 T.C. 97, 104 n.3 (2017).
[113] Zuch, 97 F.4th at 97.
[114] Id. at 98–99.
[115] See id. at 101; Brief in Opposition, supra note 61, at 32.
[116] Brief in Opposition, supra note 61, at 36.
[117] See Petition for a Writ of Certiorari, supra note 52, at 12–14.
[118] See Zuch, 97 F.4th at 101–04.
[119] See Petition for a Writ of Certiorari, supra note 52, at 12–14.
[120] See id.
[121] Greene-Thapedi v. Comm’r, 126 T.C. 1, 8–9 (2006).
[122] Id. at 8–11.
[123] Id. at 9–10.
[124] Id. at 10. “The Tax Court has no jurisdiction to determine whether a taxpayer has made an overpayment except in the context of a deficiency proceeding.” H.R. Rep. No. 100-1104, at 233 (1988) (Conf. Rep.).
[125] Greene-Thapedi, 126 T.C. at 8–11.
[126] See id. at 8–12.
[127] See Brief in Opposition, supra note 61, at 31–34, 36–37.
[128] Id.
[129] See Zuch v. Comm’r, 97 F.4th 81, 101–04 (3d Cir. 2024); I.R.C. §§ 6330(d), (e).
[130] Brief in Opposition, supra note 61, at 36–37.
[131] Id.
[132] 28 U.S.C. § 2201(a) (emphasis added).
[133] Brief in Opposition, supra note 61, at 36–37; see, e.g., Cohen v. United States, 650 F.3d 717, 727–28 (D.C. Cir. 2011); CIC Servs., LLC v. I.R.S., 925 F.3d 247, 250 n.3 (6th Cir. 2019), rev’d on other grounds, 593 U.S. 209 (2021).
[134] Brief in Opposition, supra note 61, at 36–37. The Tax Anti-Injunction Act generally prohibits suits “restraining the assessment or collection of any tax.” I.R.C. § 7421(a). However, the Tax Anti-Injunction Act exempts CDP proceedings from this general rule. See I.R.C. §§ 7421(a), 6330(e)(1). Courts construe the Tax Anti-Injunction Act and the Declaratory Judgment Act as coterminous. Zuch, 97 F.4th at 102; see also Cohen, 650 F.3d at 727. Consequently, courts have determined that the Declaratory Judgment Act must be interpreted to permit declaratory judgments where the Tax Anti-Injunction Act authorizes injunctions. Cohen, 650 F.3d at 730; Zuch, 97 F.4th at 102. This interpretation is necessary because it would “def[y] common sense” to bifurcate powers which “have the same prohibitory effect on the federal government’s ability to assess and collect taxes.” Cohen, 650 F.3d at 730 (quoting Wyo. Trucks Ass’n v. Bentsen, 82 F.3d 930, 933 (10th Cir. 1996)); Zuch, 97 F.4th at 102. As a result, the Third Circuit held that the Tax Court may issue declaratory judgments in CDP proceedings notwithstanding the general prohibition in the Declaratory Judgment Act. Zuch, 97 F.4th at 102.
[135] Brief in Opposition, supra note 61, at 32–34.
[136] Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)).
[137] Id.
[138] Id.
[139] See id.
[140] See id.; Zuch v. Comm’r, 97 F.4th 81, 93 (3d Cir. 2024).
[141] See generally Zuch, 97 F.4th 81.
[142] See Zuch v. Comm’r, No. 24-416, 2025 WL 65915 (S. Ct. 2025).