A balance-due notice arrives at your new house in Temecula. The audit letters and the notice of deficiency went to the Murrieta condo you sold, and the 90 days to go to the U.S. Tax Court ran out while the envelopes sat in a return bin. Some courts now forgive late petitions, but a California address is the worst one to have for that argument. Here is what I would do on day 91.
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North Star Tax and Legal Briefing: Missed the 90-Day Tax Court Deadline in California? What Still Works After Kings Road
A four-minute briefing on what a California taxpayer can still do after the 90-day Tax Court window closes: why the Ninth Circuit is the hardest place to ask for more time, what the Kings Road decision means for partnerships, and the collection due process, audit reconsideration, and refund-suit routes that remain open.
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A balance-due notice shows up at your new house in Temecula. The audit letters and the notice of deficiency went to the Murrieta condo you sold. And the ninety days you had to take the I R S to Tax Court ran out while those envelopes sat in a return bin at the post office. Some federal courts now forgive a late Tax Court petition when the taxpayer was diligent and something extraordinary got in the way. A California address is the worst one in the country to have for that argument. But day ninety-one is not the end. There are other doors, and each has its own short clock.
When the I R S finishes an audit and you disagree, it mails a notice of deficiency. From the date of mailing, you have ninety days to petition the United States Tax Court, or one hundred fifty days if the notice is addressed to someone outside the country. Notice the word: mailing. Not receipt. The I R S only has to send it to your last known address, usually the address on your most recently processed return. If you moved and never told the I R S or the post office, the notice is valid even though you never saw it. The distinction that decides everything is whether the deadline is jurisdictional. If it is, the court has no power to hear a late case, however good the excuse. If it is an ordinary filing rule, a court can extend it for a diligent taxpayer facing extraordinary circumstances.
In two thousand twenty-two, the Supreme Court held that a different Tax Court deadline, the thirty-day window after a collection due process hearing, can be extended that way. It did not decide the ninety-day deficiency deadline. Since then, the Second, Third, Sixth, and Eighth Circuits have allowed late deficiency petitions on a showing of diligence. The First Circuit went the other way. California sits in the Ninth Circuit, which called the deadline jurisdictional in a case involving two cannabis dispensaries whose FedEx petitions arrived one day late. That ruling came before the Supreme Court spoke, and the Ninth Circuit has not revisited it. The Tax Court follows the law of the circuit where the taxpayer lives, so a Michigan taxpayer gets a second chance and a Temecula taxpayer does not. Now the other side of the ledger. For partnerships under the newer audit rules, the Tax Court held just last month, in the Kings Road case, that the ninety-day deadline can be extended, and it accepted a petition sixteen days late. New counsel had pulled a blank transcript, called the I R S, been told nothing had gone out, and filed protectively anyway. Returned mail alone might not have been enough. One caution: a California partnership’s appeal still goes to the Ninth Circuit, which has not ruled on that deadline.
Why does this land on ordinary businesses? Because moving is routine and the consequences are not. Picture a notice of deficiency for fourteen thousand two hundred dollars plus a two thousand eight hundred forty dollar penalty, mailed to the old address in March. Day ninety passes in June. The first news is a balance-due notice in August. Then California runs its own clocks. Once the federal change becomes final, you have six months to report it to the Franchise Tax Board, and if you never do, the Franchise Tax Board can assess at any time. A proposed state assessment gives you sixty days to protest, then thirty days to appeal to the Office of Tax Appeals. The front-end fix is boring and cheap. File the change-of-address form with the I R S the week you move, file a forwarding order, and when you change advisors, revoke the old power of attorney.
If you are on day ninety-one, do three things this week. First, find out where the I R S actually mailed the notice. If you had already filed a change of address, the notice itself may be invalid, a far better problem than a late petition. Second, consider filing the late petition anyway. The fee is sixty dollars, and it can be waived. Expect a dismissal, but a dismissal for lack of jurisdiction does not lock in the tax, and it leaves the pay-and-sue refund route open. Third, watch for the levy notice. It gives you thirty days to request a collection due process hearing, where you can contest the tax itself if you never received the deficiency notice in time. That’s what we do at North Star Law Firm. The initial consultation is free, and the full written analysis with citations is at C A dash legal dot net.
How does the 90-day clock work if the IRS mailed the notice to an old address?
Under 26 U.S.C. § 6213(a) you have 90 days from mailing to petition the Tax Court, or 150 days if the notice is addressed to a person outside the United States. A weekend or D.C. holiday pushes the last day forward, and a petition filed by the date printed on the notice counts as timely.
Mailing to your “last known address” is enough under section 6212(b). Treas. Reg. § 301.6212-2 uses the address on your latest processed return unless you gave clear notice of a new one, and it can pick up a postal change of address. So I first ask whether the client filed Form 8822 or a forwarding order beforehand. If so, the notice may be invalid, a far better problem than a late petition.
Why is the Ninth Circuit the hardest place to ask for more time?
Equitable tolling excuses a missed deadline for a diligent filer facing extraordinary circumstances, but only if the deadline is not “jurisdictional.” Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), held the 30-day deadline to petition from a collection due process determination tollable. It did not decide the deficiency deadline.
Since then, Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023), Buller v. Commissioner, 160 F.4th 266 (2d Cir. 2025), Oquendo v. Commissioner, 148 F.4th 820 (6th Cir. 2025), and Maniktala v. Commissioner, No. 25-1366 (8th Cir. Aug. 11, 2026), allow tolling of § 6213(a). Kyick Holdings, LLC v. Commissioner, No. 25-1429 (1st Cir. Aug. 17, 2026), agreed the deadline is not jurisdictional but held it “mandatory and may not be equitably tolled.”
California is in the Ninth Circuit. Organic Cannabis Foundation, LLC v. Commissioner, 962 F.3d 1082 (9th Cir. 2020), held the deadline jurisdictional against two dispensary businesses whose FedEx petitions arrived one day late. That predates Boechler; the only later Ninth Circuit ruling I found, Atighi v. Commissioner, No. 21-71417 (9th Cir. Nov. 25, 2022), is unpublished and never mentions it. The Tax Court agrees with the Ninth Circuit in Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022), a California company’s case, and Sanders v. Commissioner, 161 T.C. No. 8 (2023).
Under Golsen v. Commissioner, 54 T.C. 742 (1970), the Tax Court follows on-point law of the circuit hearing the appeal, which 26 U.S.C. § 7482(b) ties to residence. A Michigan taxpayer gets Oquendo; a Temecula taxpayer gets Hallmark. The Supreme Court has not taken up the split.
Did an IRS notice go to an old address, and has the 90-day window already closed? The fallback deadlines are short, and none of them restart.
Is it worth filing a late Tax Court petition anyway?
Often, yes. The filing fee is $60, waivable for hardship. Expect dismissal, but the Ninth Circuit will not revisit Organic Cannabis unless taxpayers keep asking.
That label has an upside. A dismissal fixes the deficiency at the IRS’s number unless it is for lack of jurisdiction (26 U.S.C. § 7459(d)), and section 6512(a) bars a refund suit only after a petition filed “within the time prescribed in section 6213(a).” Organic Cannabis noted that a jurisdictional dismissal keeps the refund route open. In Oquendo the IRS argued that late filers denied tolling lose that route; the Sixth Circuit was unmoved, but the point is unsettled.
What other routes are open to a California taxpayer after day 90?
I reach first for a collection due process hearing. Before levying, the IRS must give you 30 days to request one on Form 12153. Section 6330(c)(2)(B) lets you contest the tax itself if you did not receive the notice, and Treas. Reg. § 301.6330-1(e)(3), Q&A-E2, means “receipt in time to petition the Tax Court.” Losing at Appeals triggers the 30-day petition deadline Boechler made tollable. Later, for the same company, the Tax Court held the lien-hearing request window tollable in Organic Cannabis Foundation, LLC v. Commissioner, 161 T.C. No. 4 (2023).
Audit reconsideration under IRM 4.13.1.2.1 requires a filed return, an unpaid assessment and information the examiner never saw, which fits most people who missed the audit letters (Publication 3598). A doubt-as-to-liability offer on Form 656-L has no fee, but Treas. Reg. § 301.7122-1(b)(1) bars it after a final court decision on the liability.
Or pay and sue. Flora v. United States, 362 U.S. 145 (1960), requires full payment first. Claim within three years of the return or two of payment (26 U.S.C. § 6511(a)), wait six months or for a denial, and sue within two years of the denial (§ 6532(a)(1)) in the Court of Federal Claims or your home district (28 U.S.C. § 1402(a)(1)): the Central District for Riverside County, the Eastern District for Sacramento.
What does Kings Road mean for a California LLC taxed as a partnership?
Partnerships under the Bipartisan Budget Act of 2015 (BBA) audit rules receive a notice of final partnership adjustment (FPA). 26 U.S.C. § 6234(a) allows 90 days to petition. Big Apple Tompkins Realty LLC v. Commissioner, 167 T.C. No. 7 (Aug. 5, 2026), held that deadline nonjurisdictional. Kings Road Property, LLC v. Commissioner, 167 T.C. No. 11 (Sept. 21, 2026), then tolled it for a petition 16 days late.
New counsel pulled a blank transcript, phoned the IRS after the mailing deadline, was told nothing had gone out, and still petitioned protectively; Judge Buch said she “did more than merely watch the mailbox.” Undeliverable packages plus IRS misinformation were the extraordinary circumstance, though returned mail alone might not have been.
One caution: a California partnership’s appeal goes to the Ninth Circuit (§ 7482(b)(1)(E)), which held the old TEFRA deadline jurisdictional in SNJ Ltd. v. Commissioner, 28 F.4th 936 (9th Cir. 2022) and has not ruled on § 6234(a).
The FPA cannot be mailed earlier than 270 days after the IRS’s notice proposing the adjustment (NOPPA) absent a waiver (§ 6231(b)(2)(A)), and it is due by the later of 330 days after the NOPPA or three years after the return (§ 6235(a)). When day 330 controls and nothing was waived or extended, a protective petition filed between days 331 and 360 lands after any timely FPA and before the earliest due date. From day 270, pull transcripts, log calls, fix addresses and revoke stale powers of attorney.
How would the federal and FTB deadlines line up for a Temecula taxpayer?
An illustrative case: Elena filed her 2023 return on April 15, 2024 from Murrieta and moved to Temecula in late 2025 without telling the IRS or the post office. On Monday, March 9, 2026 the IRS mailed a notice of deficiency for $14,200 plus a $2,840 penalty to Murrieta; her 2025 return, filed from Temecula in April, came too late. Day 90 was Sunday, June 7, so the petition was due June 8. An August balance-due notice is her first news.
When the levy notice comes, she has 30 days to request a hearing and contest the tax. Audit reconsideration is open now. If she pays instead, her refund claim is due by April 15, 2027, or two years after payment, with suit in Riverside.
California runs separate clocks. Cal. Rev. & Tax. Code § 18622(a) requires her to report the federal change to the Franchise Tax Board within six months after it becomes final and section 19060(a) lets the FTB assess any time if she never does. A proposed assessment allows 60 days to protest (section 19041), then 30 days after the FTB’s notice of action to appeal to the Office of Tax Appeals (section 19045; Cal. Code Regs., tit. 18, § 30203(a)). I found no OTA decision tolling that window. Partnerships report BBA adjustments under section 18622.5. As with the treaty wins I discussed for foreign nationals, a federal result does not close the FTB file.
| Option after day 90 | Cost to enter | Deadline | Who it suits |
|---|---|---|---|
| Late Tax Court petition | $60 fee, waivable | File promptly | Strong facts, ready to appeal |
| Collection due process hearing | Form 12153, no fee | 30 days from the hearing notice | Never received the notice in time |
| Audit reconsideration | Unpaid assessment, new records | No fixed deadline | Missed the audit, has documents |
| Doubt-as-to-liability offer | Form 656-L, no fee | Before a final court decision | Real dispute, other routes closed |
| Refund suit | Full payment | Claim within 3 years of filing or 2 of payment | Can pay, wants a judge |
Frequently Asked Questions
Can the Tax Court accept a late deficiency petition from a California taxpayer?
Not today. The Tax Court and the Ninth Circuit treat the 90-day deadline as jurisdictional. Filing anyway preserves the argument, but expect a dismissal.
Does the 90-day period start when I receive the notice of deficiency?
No. It runs from mailing to your last known address, usually the one on your latest processed return. A notice addressed outside the United States allows 150 days.
What can I do if I never received the notice of deficiency?
You can usually contest the tax at a collection due process hearing. Audit reconsideration and a doubt-as-to-liability offer are fallbacks, as is paying and suing.
Does Kings Road help my California partnership?
The Tax Court should apply it unless the Ninth Circuit rules otherwise. Tolling still requires proof of diligence and a cause outside the partnership’s control.
If I beat the IRS, do I still have to deal with the FTB?
Yes. California requires reporting federal changes within six months after they become final. The FTB’s 60-day protest and 30-day appeal periods run on their own.
How North Star Law Firm Can Help
North Star Law Firm handles missed-deadline and wrong-address cases for California individuals and partnerships through its Tax Court and Office of Tax Appeals practice, its broader tax defense work and offers in compromise. Phillip Zagotti is a California attorney and a CPA, admitted to the U.S. Tax Court.
If an IRS or FTB deadline has already passed, contact North Star Law Firm or schedule a consultation before the next one does.