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U.S. Tax Explained Series

Petitioning the U.S. Tax Court Without Paying First

The 90-day window after a notice of deficiency, the small case procedure for disputes under $50,000, what happens between filing and trial, and when paying first and suing elsewhere is better.

Reviewed by the Fairlight Accounting cross-border tax team — U.S. & Canadian Tax Desks

The U.S. Tax Court is the only forum where you can dispute a proposed tax before paying it. The right arises from a notice of deficiency, and the petition is due within 90 days of the notice date (150 days if addressed outside the United States). Disputes of $50,000 or less per year can use the simplified small case procedure.

On this page
  1. What are the steps?
  2. What is the small tax case procedure?
  3. Who can represent you?
  4. What if the 90 days are missed?
  5. What other cases does the Tax Court hear?
  6. Frequently asked questions
  7. Official sources
  8. Related guides
  9. Next step

What are the steps?

StageDetail
Notice of deficiencyThe IRS's formal determination; the 90-day clock runs from the date the notice is mailed (usually the date printed on it), and a petition filed by the last date the notice states is timely
PetitionFiled online or by mail with the $60 fee; identifies the notice, the years, and each error alleged
IRS answerThe IRS Office of Chief Counsel files an answer within 60 days of being served with the petition
Appeals referralCases not previously considered by Appeals are sent there for settlement talks
StipulationsThe parties agree on facts and documents before trial
TrialHeld in the city you request from the court's list of trial locations; the judge issues an opinion weeks or months later
DecisionEntered by the court; appealable to the U.S. Court of Appeals for your circuit within 90 days of entry (small cases excepted)

Filing the petition suspends assessment and collection of the disputed amount until the decision is final. Interest continues to accrue.

What is the small tax case procedure?

For disputes where the deficiency, including penalties, is $50,000 or less for any one year, you can elect "S case" treatment: informal trials, relaxed evidence rules, and ordinarily no briefs. The trade-off is that neither side can appeal the decision and it sets no precedent. The court must agree to the election, which it generally does for cases that qualify.

Who can represent you?

Yourself, or a practitioner admitted to the Tax Court — attorneys, and non-attorneys (including accountants and enrolled agents) who have passed the court's examination. Self-represented petitioners can get free help from participating low-income taxpayer clinics and bar-sponsored calendar call programs, whose volunteers attend many trial sessions.

What if the 90 days are missed?

The Tax Court generally cannot hear the case, and by law it cannot extend the deadline. The remaining route is to pay the tax, file a refund claim, and sue in a U.S. district court or the Court of Federal Claims after the claim is denied or six months pass. Some taxpayers choose that route deliberately when they prefer a jury (available only in district court) or a different line of precedent.

What other cases does the Tax Court hear?

Collection due process appeals, innocent spouse determinations, certain worker classification cases, and whistleblower awards, each with its own deadline.

Frequently asked questions

Do I have to pay anything to file?

The $60 fee, which can be waived for inability to pay. The disputed tax is not paid until the case is decided.

Does filing a petition make settlement harder?

No. Docketed cases are generally referred to Appeals for settlement talks unless Appeals issued the notice, and many cases settle before trial.

Can I add issues the notice did not raise?

You can raise additional errors in your favor, generally carrying the burden of proof on them; the IRS can raise new matter or an increased deficiency in its answer, but then bears the burden of proof on it.

Where does the trial take place?

The court sits in cities across the country; you request a location on Form 5 when you file the petition. Florida trial cities are Jacksonville, Miami, Orlando, Tallahassee, and Tampa.

Official sources

The Tax Court explains: “For example, in a deficiency case, the petition must be filed by the 90th day (or the 150th day if the notice is addressed to a person outside the United States) from the date of the mailing of the notice of deficiency.” — United States Tax Court, Guidance for Petitioners: Starting A Case, https://www.ustaxcourt.gov/petitioners-start

The statute provides: “Any petition filed with the Tax Court on or before the last date specified for filing such petition by the Secretary in the notice of deficiency shall be treated as timely filed.” — Legal Information Institute, Cornell Law School, 26 U.S. Code § 6213 - Restrictions applicable to deficiencies; petition to Tax Court, https://www.law.cornell.edu/uscode/text/26/6213

Next step

Fairlight Accounting handles U.S. domestic, cross-border (U.S.–Canada), and international tax returns, plus bookkeeping, payroll, and CFO advisory. Our U.S. Tax Desk tracks the 90-day deadline from the moment a notice arrives and prepares the Appeals case that often ends the dispute. See pricing or book a free fit call.

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U.S. and Canadian filings prepared together by our U.S. and Canadian Tax Desks.

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