                                 PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT



                No. 10-1308


           DENISE MANNELLA

                     v.

COMMISSIONER OF INTERNAL REVENUE,

                                      Appellant


 On Appeal from the United States Tax Court
         (Tax Court No. 17531-07)
   Tax Court Judges: Hon. Harry Haines
       and Hon. Michael B. Thornton


        Argued November 17, 2010


      BEFORE: AMBRO, FISHER and
       GREENBERG, Circuit Judges

             (Filed:1/19/2011)
Derek P. Dissinger (argued)
Russell, Krafft & Gruber
930 Red Rose Court
Hempfield Center, Suite 300
Lancaster, PA 17601-0000

Alice L Stewart
Duquesne University School of Law
Low Income Tax Practicum
Room 125
600 Forbes Avenue
Pittsburgh, PA 15282-0000

Raymond C. Vogliano
Eckert, Seamans, Cherin & Mellott
600 Grant Street
44th Floor, U.S. Steel Tower
Pittsburgh, PA 15219-0000

Attorneys for Appellee

John A. DiCicco
Acting Assistant Attorney General
Teresa E. McLaughlin (argued)
Steven W. Parks
Attorneys Tax Division
United States Department of Justice
950 Pennsylvania Avenue, N.W.
P.O. Box 502
Washington, DC 20044-0000



                              2
William J. Wilkins
Internal Revenue Service
1111 Constitution Avenue, N.W.
Washington, DC 20224-0000

Attorneys for Appellant

Carlton M. Smith
Director, Benjamin N. Cardozo School of Law Tax Clinic
55 Fifth Avenue
New York, NY 10003

Attorney Pro Se as Amicus Curiae


                OPINION OF THE COURT


GREENBERG, Circuit Judge.

                   I. INTRODUCTION

       This matter comes on before the Court on the
Commissioner of Internal Revenue=s appeal from a
decision of the United States Tax Court entered on
November 5, 2009, in accordance with a Tax Court
opinion dated April 13, 2009, and a stipulation of the
parties dated October 28, 2009, that together provided
that Appellee Denise Mannella did not owe any income
taxes, interest, or penalties for the taxable years 1996
through 2000. In its opinion leading to its decision, the


                            3
Tax Court invalidated a Treasury Department regulation,
26 C.F.R. ' 1.6015-5(b)(1), that sets a two-year deadline
to file a claim for equitable Ainnocent spouse@ relief under
26 U.S.C. ' 6015(f) from liability resulting from a jointly
filed federal income tax return. We now hold that the
regulation is neither contrary to nor an impermissible
implementation of section 6015, and, therefore,
inasmuch as Denise filed her claim for innocent spouse
relief beyond the regulation=s two-year deadline for
seeking such relief, we will reverse the decision of the
Tax Court. See Chevron U.S.A., Inc. v. Natural Res.
Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778 (1984).
We, however, will remand the case to that Court to
consider an equitable tolling contention that Denise
advances on this appeal with respect to the running of
the two-year period.1



                   II. BACKGROUND

      A.     Statutory and Regulatory Framework

      Before addressing the facts of this case, we first
quote the Court of Appeals for the Seventh Circuit=s
thorough explanation of the relevant portions of the
Internal Revenue Code and the related Treasury
Department regulation at issue:

1
 There is no issue raised on this appeal concerning the
calculation of the taxes, interest, or penalties.

                             4
Taxpayers filing a joint return are jointly and
severally liable for the entire tax liability
shown or that should have been shown on
their return. 26 U.S.C. ' 6013(d)(3). But
section 6015 of the Internal Revenue Code
sets forth grounds->innocent spouse= rules
first added to the Code in 1971 and
liberalized since . . . -for relieving the signer
of a joint return of his or her joint and several
liability for understatement or nonpayment
of income tax due.

Section 6015(f), captioned >equitable relief,=
provides that >under procedures prescribed
by the [Secretary of Treasury], if (1) taking
into account all the facts and circumstances,
it is inequitable to hold the individual liable
for any unpaid tax or any deficiency . . . ; and
(2) relief is not available to such individual
under subsection (b) or (c) [of section 6015],
the [Secretary] may relieve such individual
of such liability.= By regulation the Treasury
has fixed a deadline for filing claims under
subsection (f) of two years from the IRS=s
first action to collect the tax by (for example)
issuing a notice of intent to levy on the
taxpayer=s property.            26 C.F.R. '
1.6015-5(b)(1); see also IRS Rev.
Proc.2003-61 ' 4.01(3); 26 U.S.C. '
6630(a).



                       5
Lantz v. Commissioner, 607 F.3d 479, 480 (7th Cir.
2010) (internal citations omitted) (alterations in original).
As the foregoing passage indicates, the two-year
deadline for seeking relief under section 6015(f) does not
arise from section 6015 but rather comes from the
Treasury regulation implementing subsection 6015(f).

      Subsections (b) and (c) of section 6015 also
provide avenues of relief for innocent spouses, but, in
contrast to subsection (f), both contain two-year filing
deadlines for seeking such relief.      Subsection (b)
provides:

      Under procedures prescribed by the Secretary [of
Treasury], ifB

             (A) a joint return has been made
             for a taxable year;

             (B) on such return there is an
             understatement of tax attributable
             to erroneous items of one
             individual filing the joint return;

             (C) the other individual filing the
             joint return establishes that in
             signing the return he or she did not
             know, and had no reason to know,
             that      there      was       such
             understatement;




                              6
             (D) taking into account all the
             facts and circumstances, it is
             inequitable to hold the other
             individual liable for the deficiency
             in tax for such taxable year
             attributable         to         such
             understatement; and

             (E) the other individual elects (in
             such form as the Secretary may
             prescribe) the benefits of this
             subsection not later than the date
             which is 2 years after the date the
             Secretary has begun collection
             activities with respect to the
             individual making the election,

      then the other individual shall be relieved of
      liability for tax (including interest, penalties, and
      other amounts) for such taxable year to the
      extent such liability is attributable to such
      understatement.

26 U.S.C. ' 6015(b)(1) (emphasis added). Subsection
(c) provides for an allocation of liability if the signer of a
joint return is divorced, legally separated, or no longer
living in the same household as the individual with whom
the signer filed the joint return. In a provision paralleling
subsection (b)(1)(E), subsection (c) provides that a
taxpayer seeking relief under (c) must elect such relief
Anot later than 2 years after the date on which the
[Secretary] has begun collection activities with respect to

                               7
the individual making the election.@       26 U.S.C. '
6015(c)(3)(B).



      B.    Facts

        Denise2 and her husband Anthony Mannella filed
joint federal income tax returns for the years 1996
through 2000.          The Mannellas agreed to the
assessment of a deficiency for the year 1996. For the
years 1997, 1998, 1999, and 2000, the Mannellas did not
pay fully the taxes their returns showed as due.
Consequently, the Commissioner on June 4, 2004,
initiated collection procedures to recover the back taxes
that they owed by sending the Mannellas separate
notices of his intent to levy. The notices indicated,
however, that the Mannellas each had the right to a
collection-due-process hearing before such levy.

       The notices instructed the Mannellas how to obtain
innocent spouse relief under section 6015 by including
an IRS publication titled AWhat You Should Know About
[t]he IRS Collection Process,@ which contained the
following provision:


2
 Our use of Denise Mannella=s first name in this opinion
does not suggest a lack of respect but rather is intended
to keep the opinion clear with respect to the parties=
identification.

                           8
      Help for an innocent spouse C In some
      cases, you may not be responsible for
      taxes, interest, and penalties on a joint
      income tax return. Contact your local IRS
      office for more information. For information
      about your rights as an innocent spouse,
      see Publication 971, Innocent Spouse
      Relief. For information on three ways to get
      help with the amount you owe, see Form
      8857, Request for Innocent Spouse Relief
      (And Separation of Liability and Equitable
      Relief).

2 App. at 39, 42. The notices also included IRS Form
12153, which states that A[i]f you believe that your
spouse or former spouse should be responsible for all or
a portion of the tax liability from your tax return, check
here [__] and attach Form 8857, Request for Innocent
Spouse Relief, to this request.@ 2 App. at 51.

        The IRS sent the notices to the Mannellas= correct
address by certified mail return receipt requested. IRS
records indicate that it received signed return receipts
dated June 17, 2004, for both notices at an IRS Service
Center. Denise asserts, however, that her husband
signed her name on the return receipt and did not inform
her that the notice had arrived until more than two years
after its arrival and the Commissioner does not challenge
this assertion. On November 1, 2006, after learning of
the notice of intent to levy and speaking with an attorney,
Denise filed two Form 8857 applications under section
6015, subsections (b), (c), and (f), for innocent spouse

                            9
relief from joint and several liability on the Mannellas=
joint returns filed for the years 1996-2000.         The
Commissioner, however, issued Denise a notice of
determination dated May 3, 2007, denying her relief
under section 6015 because she had not filed her claim
within two years of June 4, 2004, the date that the
Commissioner took his first collection action against her
by mailing her notice of the intent to levy. Denise does
not contend that the Commissioner misapplied the
statutory and regulatory two-year deadline periods, as
written, as she does not assert that she filed her
applications within the two-year statutory and regulatory
deadlines period allowed for such applications.



      C.    Procedural History

       In response to the Commissioner=s rejection of her
applications, Denise, acting pro se, filed a petition for
relief with the Tax Court, contending in part:

      My claim for relief was denied because it
      was filed 4 2 months to[o] late. When the
      collection process was started against me
      [on] June 4, 2004[,] it was immediately
      stopped. I was informed by my husband
      that everything was handled and that I was
      not liable for his tax obligation. The IRS
      stopped collection activity against me so I
      thought it was taken care of. I was not
      aware of any other problems and never

                           10
      received any other papers from the IRS
      concerning my liability for his taxes or
      anything concerning my rights as an
      innocent spouse. I never received any
      benefits from my husband not paying his
      taxes. . . . Denying my claim because it was
      filed late when I was never informed that a
      time limit existed is wrong.

2 App. at 4. Denise=s husband was informed of his right
to intervene in the Tax Court proceedings, but did not do
so.

       The Commissioner moved for summary judgment
on the sole basis that Denise=s applications for relief
under section 6015 were untimely. She opposed the
motion on the ground that she never received her notice
from her husband and therefore the two-year period for
seeking innocent spouse relief should not have begun to
run against her. Denise represented to the Tax Court
that she and her husband were prepared to testify in
support of her contentions at a trial. She did not argue,
however, that the regulation setting a two-year deadline
for requesting relief under subsection 6015(f) was
invalid.

      In an opinion dated April 13, 2009, the Tax Court
granted the Commissioner=s motion for summary
judgment in part and denied it in part. The Court
determined that the mailing of the notice to Denise=s last
known address triggered the running of the two-year
deadline periods under subsections 6015(b) and (c)

                           11
regardless of whether she actually received the June 4,
2004 notice. Accordingly, the Tax Court granted the
Commissioner=s motion for summary judgment on
Denise=s      claims    under    those     subsections.
Nevertheless, the Court sua sponte held that the
two-year regulatory deadline under subsection 6015(f)
was invalid, a conclusion that it based on its prior
decision in Lantz v. Commissioner, 132 T.C. 131 (2009).3
Consequently, the Court concluded that Denise=s
subsection (f) claim was timely and it denied the
Commissioner summary judgment on that claim.

        After the Tax Court filed its opinion, the parties
executed a stipulation that if Denise=s subsection (f)
request had been timely, which it was if the regulation
was invalid, Denise Ais entitled to relief from all joint and
several liabilities in income tax, additions to tax, penalties
and assessed interest@ for all the taxable years within the
scope of this action. See 2 App. at 74. Following the
filing of the stipulation, the Tax Court entered a decision
on November 5, 2009, in Denise=s favor, but reserving
the Commissioner=s right to appeal, which he has done.


3
  As we discuss below, after the Tax Court filed its opinion
and decision in this case, the Court of Appeals for the
Seventh Circuit reversed the Tax Court decision in Lantz
in an opinion filed June 8, 2010. See 607 F.3d 479. In
this opinion we refer to the Tax Court opinion in that
litigation as Lantz v. Commissioner and the Court of
Appeals opinion as Lantz.

                             12
  III. JURISDICTION AND STANDARD OF REVIEW

       The Tax Court had jurisdiction pursuant to 26
U.S.C. '' 6015(e)(1)(A)(ii) and 7442, and we have
jurisdiction to review that Court=s decision granting
summary judgment pursuant to 26 U.S.C. ' 7482(a)(1).
Our review of the Tax Court=s decision is plenary.
Connecticut Gen. Life Ins. Co. v. Comm=r, 177 F.3d 136,
143 (3d Cir. 1999); ACM P=ship v. Comm=r, 157 F.3d 231,
245 (3d Cir. 1998).



                   IV. DISCUSSION

      The primary issue on this appeal is whether the
Secretary validly exercised his rulemaking authority in
adopting the regulation setting a two-year deadline for
requesting relief under subsection 6015(f).          In
considering this issue we apply the principles the
Supreme Court set forth in Chevron that we recently
explained as follows:

      [U]nder Chevron, we must first determine >if
      the statute is silent or ambiguous with
      respect to the specific issue of law in the
      case, using traditional tools of statutory
      construction    to     determine    whether
      Congress had an intention on the precise
      question at issue.= If congressional intent is

                           13
      clear, >the inquiry ends, as both the agency
      and the court must give effect to the plain
      language of the statute.= Where, however,
      a >statute is silent or ambiguous with respect
      to the specific issue, the court proceeds to
      step two, where it inquires whether the
      agency=s answer is based on a permissible
      construction of the statute.=

Lin-Zheng v. Attorney Gen., 557 F.3d 147, 155 (3d Cir.
2009) (en banc) (internal citations omitted). The Tax
Court in this case, following its opinion in Lantz v.
Commissioner in which it had applied Chevron, held that
the regulation conflicts with the clear language of
subsection 6015(f) and that, even if the language of the
statute is ambiguous, the regulation impermissibly
implements that subsection.         Denise, with effective
assistance from amicus curiae, supplements the Tax
Court opinion by arguing that even if we uphold the
regulation under Chevron, the two-year filing deadline is
subject to the doctrine of equitable tolling and that there
should be equitable tolling in her case to the end that her
applications were timely. We consider each issue in
turn.



      A.     Lantz

     As we have indicated, in invalidating the regulation
the Tax Court followed its prior decision in Lantz v.
Commissioner in which it stated:

                            14
      [b]y explicitly creating a 2-year limitation in
      subsections (b) and (c) but not subsection
      (f) [of section 6015], Congress has >spoken=
      by its audible silence.        Because the
      regulation imposes a limitation that
      Congress explicitly incorporated into
      subsections (b) and (c) but omitted from
      subsection (f), it fails the first prong of
      Chevron.

132 T.C. at 139. The Tax Court further reasoned that
because subsection (f), in terms, is only available to
taxpayers ineligible for relief under subsections (b) or (c),
Congress, by omitting the two-year time limit in
subsection (f), intended that the subsection be available
to taxpayers who missed the filing deadline under
subsections (b) or (c) as a result of some inequity. Id. at
139-41.

       After the Commissioner filed his opening brief on
this appeal, the Court of Appeals for the Seventh Circuit
released the opinion in Lantz, which we quote above,
reversing the decision of the Tax Court in that case and
upholding the two-year regulatory deadline for claims
filed under subsection 6015(f). In its opinion the Court
of Appeals rejected the Tax Court=s theory of Aaudible
silence.@ In so doing, the Court noted that Aif there is no
deadline in subsection (f), the two-year deadlines in
subsections (b) and (c) will be set largely at naught
because the substantive criteria of those subsections are
virtually the same as those of [subsection] (f).@ Lantz,
607 F.3d at 484. The Court found further support for its

                             15
decision       in     several     of    section     6015=s
provisionsCincluding the introductory phrase of
subsection (f)Cexpressly granting the Secretary
rulemaking authority, and in the circumstance that
subsection (f), rather than requiring the Secretary to
grant relief if certain conditions are met, vests him with
discretion to grant such relief. Id. at 485; see Lopez v.
Davis, 531 U.S. 230, 243-44, 121 S.Ct. 714, 723-24
(2001) (A[E]ven if a statutory scheme requires
individualized determinations . . . the decisionmaker has
the authority to rely on rulemaking to resolve certain
issues of general applicability unless Congress clearly
expresses an intent to withhold that authority.@) (internal
citation and quotation marks omitted).



      B.     Chevron - Step 1

      The Supreme Court in Chevron instructed that
courts, when analyzing administrative regulations to
determine if they are valid, first should look at whether
Congress has Adirectly spoken to the precise question at
issue.@ 467 U.S. at 842, 104 S.Ct. at 2781. Denise
argues that Congress unequivocally has spoken to the
question at issue here and has precluded the Secretary
from adopting a regulation establishing a two-year filing
deadline under subsection (f). She predicates this
contention on the correct observation that Congress did
not include a two-year filing deadline in subsection (f)
equivalent to that it did include in subsections (b) and (c).
Rather, Congress instructed the Secretary to consider all

                             16
relevant facts and circumstances when deciding whether
to grant relief under subsection (f), and stated that relief
is available under subsection (f) only if unavailable under
(b) and (c). We disagree with Denise on this point.

       Section 6015 tells us nothing about when claims
may be brought under subsection (f) as the section does
not address this point. We agree with the Court of
Appeals for the Seventh Circuit that this silence is not
made audible by the presence of deadlines in
subsections (b) and (c). Though we recognize that A[i]t
is generally presumed that Congress acts intentionally
and purposely when it includes particular language in
one section of a statute but omits it in another,@ see City
of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338, 114
S.Ct. 1588, 1593 (1994) (internal quotation marks and
citation omitted), the absence of a statutory filing
deadline in subsection (f) similar to those in subsections
(b) and (c) does not require us to conclude that the
Secretary cannot impose a two-year deadline by
regulation.

      It is important to recognize that there can be
several explanations for Congress=s omission of a
deadline for filing an application for relief under
subsection (f). To start with, Congress may have
intended to defer the issue of timing to the Secretary who
can establish procedures for granting relief under
subsection (f) and can determine whether relief, no
matter when sought, should be granted.4 On the other

4
    There is considerable discussion on this appeal
                            17
hand, it is possible that Congress intended that there not
be a deadline for claims under subsection (f) or,
alternatively, that any deadline imposed by a regulation
under that subsection be greater than the two-year
period provided in subsections (b) and (c). But we
cannot say that section 6015, in terms, requires that we
embrace any particular view of Congress=s intent with
respect to a subsection (f) filing deadline.




between the parties involving the question of whether a
limitations period is procedural or substantive. But we
will not focus on that discussion as we are not concerned
with issues such as the applicability of federal or state
law under Erie R. Co. v. Tomkins, 304 U.S. 64, 58 S.Ct.
817 (1938), or the choice of law when the law of different
states may be implicated in litigation. Rather, we are
concerned with whether Congress intended to authorize
the Secretary to include a filing time deadline among the
Aprocedures@ that he can adopt to implement subsection
6015(f).

                           18
        Nor is the question of whether there can be a two-year
deadline period under subsection (f) answered by its provision
that the Secretary Atak[e] into account all the facts and
circumstances@ when deciding whether to grant relief under
that subsection. See 26 U.S.C. ' 6015(f)(1). Denise argues
that this instruction makes clear that the timing of the request is
a factor that the Secretary must take into account in
considering a claim under subsection 6015(f). Congress,
however, included an identical instruction in subsection (b),
see 26 U.S.C. ' 6015(b)(1)(D), despite the presence of an
explicit filing deadline in that subsection, see subsection
(b)(1)(E), and the requirement that relief be granted if all the
criteria listed in subsection (b)(1) are satisfied. The Secretary
thus cannot grant relief to a taxpayer who elects to seek
subsection (b) relief after the deadline under that subsection
has passed, nor can he consider timing as a factor in a
determination of whether to grant relief if the taxpayer makes a
request for relief within the two-year period. Because the
Secretary is prevented from considering the timing of an
election for relief under subsection (b) notwithstanding
the statutory instruction to Atak[e] into account all the
facts and circumstances,@ we hardly can hold that the
exact same instruction clearly requires the Secretary to
consider the timing of a request for relief on an
individualized basis under subsection (f).

       Denise also points to the circumstance that relief
under subsection (f) is limited to individuals ineligible for
relief under subsections (b) and (c). See 26 U.S.C. '
6015(f)(2). Because the requirements for relief under
subsections (b) and (f) are similar, though not identical,
Denise argues that Congress must have intended that

                                19
relief under subsection (f) be available to persons who
missed the filing deadline under subsection (b). Yet
Denise does not dispute that, regardless of timing, a
taxpayer would be eligible for relief under subsection (f)
but not subsection (b) when the taxpayer is seeking relief
from liability for an underpayment as distinguished from
an understatement of taxes, undoubtedly a very large
category of cases, or when the taxpayer is seeking relief
from an understatement that he or she knew or should
have known was made. Accordingly, subsection (f)=s
exclusion of those eligible for relief under subsection (b)
and (c) sheds little light on the question before us.

        What subsection (f)(2) may mean is that for relief
to be granted under subsection (f) it must never have
been available under subsection (b) or (c) whether or not
timely sought under those subsections. Indeed, such a
view of Congress=s intent would be consistent with the
establishment of explicit deadline periods in subsections
(b) and (c). Along this line we point out that it would be
strange if Congress established a deadline for a claim
under one subsection but also provided that a claimant at
a date beyond that deadline could make the same claim
for the same type of relief under another subsection and
thereby effectively by-pass the deadline period. In
addressing this point we reiterate that among the
reasons that relief might be available under subsection
(f) that never was available under subsection (b) or (c) is
that subsection (f) relief may be available for both
understatements and underpayments of taxes whereas
subsections (b) and (c) are limited to understatements.
Therefore, the provision of subsection (f) limiting the

                            20
availability of that subsection to taxpayers ineligible for
relief under subsection (b) and (c) has real meaning even
if it does not save claims that had been, but no longer
are, within the scope of subsections (b) and (c) because,
if asserted, they would be untimely under those two
subsections. Overall, we see no escape from the
conclusion that section 6015 is ambiguous on the
question of when a request for relief may be brought
under subsection (f).



      C.     Chevron - Step 2

       Inasmuch as Congress has not spoken directly to
the precise question in issue, i.e., can the Secretary by
regulation establish a deadline for a taxpayer to seek
subsection (f) relief, we next must examine whether the
Secretary=s imposition of a two-year deadline for claims
brought under subsection (f) permissibly implements that
subsection. In resolving this question, we defer to the
Secretary=s implementation of the subsection Aunless the
legislative history or the purpose and structure of the act
clearly reveal a contrary intent on the part of Congress.@
Appalachian States Low-Level Radioactive Waste
Comm=n v. O=Leary, 93 F.3d 103, 110 (3d Cir. 1996)
(quoting Chem. Mfrs. Ass=n v. Natural Res. Def. Council,
Inc., 470 U.S. 116, 126, 105 S.Ct. 1102, 1108 (1985)).
ASo long as the regulation bears a fair relationship to the
language of the statute, reflects the views of those who
sought its enactment, and matches the purpose they
articulated, it will merit deference.=@ Id. at 110 (quoting

                            21
Sekula v. F.D.I.C., 39 F.3d 448, 452 (3d Cir. 1994)). 5
We therefore turn to the legislative history and purpose of
section 6015 to determine whether they reveal that
Congress had an intent in adopting section 6015(f) that
was contrary to the regulation establishing the two-year
deadline. See id.




5
 The deference is particularly broad when the regulation
is adopted pursuant to authority in a specific statute as
distinguished from being adopted under general rule
making authority. See Armstrong World Indus. Inc. v.
Comm=r, 974 F.2d 422, 441 (3d Cir. 1992).

                            22
        In her brief, Denise discusses the legislative
history of the provisions at issue at some length. In
particular, she points to statements various Senators
made and passages from a joint conference report to the
effect that Congress intended to expand significantly the
prior innocent spouse provisions in 1998 and 2006. See
appellee=s br. at 25-34. Certainly there is no doubt but
that Congress significantly expanded the circumstances
in which a taxpayer could obtain innocent spouse relief
when it enacted section 6015 in its current form. For
example, the current statute eliminates the previous
requirements that innocent spouse relief be limited to
grossly erroneous items attributable to the other spouse
and that the Secretary grant relief only for
understatements exceeding a certain monetary
threshold. See 26 U.S.C. ' 6013(e), repealed by
Internal Revenue Restructuring and Reform Act of 1998,
(ARRA@), Pub. L. No. 105-206 ' 3201, 112 Stat. 685, 740.
Moreover, the addition of subsection (f), notwithstanding
the Secretary=s adoption of the regulatory two-year
deadline, allows for the possibility of there being relief for
underpayments and for understatements of which the
taxpayer seeking relief knew or should have known.

       The closest Denise is able to come to pointing to
any legislative history suggesting that Congress in
enacting subsection 6015(f) had an intent inconsistent
with the terms of the regulation is in the legislative history
of 26 U.S.C. ' 66. That provision of the Internal
Revenue Code addresses the treatment of community
property in community property states when spouses do
not file income tax returns jointly. Congress amended

                             23
subsection (c) of section 66 by the same act that created
subsection 6015(f) 6 and therefore, not surprisingly,
subsection 66 provides for equitable relief in language
that mirrors that of subsection 6015(f). See 26 U.S.C. '
66(c)(4); RRA Pub. L. No. 105-206 ' 3201, 112 Stat. 685,
740. Some statements in the legislative history of
section 66(c) suggest that the Secretary, when Ataking
into account all the facts and circumstances,@ 26 U.S.C. '
66(c)(4), should consider the timing of the request for
relief.

        The foregoing history, which the Tax Court
discussed in its opinion in Lantz v. Commissioner, 132
T.C. at 141-44, lends some support to Denise=s position,
but it fails to overcome the deference that we must give
to Treasury Regulation ' 1.6015-5(b)(1) under Chevron
and it does not clearly demonstrate that Congress
intended that requests for relief under subsection 6015(f)
not be subject to a two-year filing deadline. Accordingly,
the regulation is valid. See also Swallows Holding, Ltd.
v. Comm=r, 515 F.3d 162, 172 (3d Cir. 2008) (ADrawing
[a] temporal line [to claim a tax deduction] is a task
properly within the powers and expertise of the IRS.
Chevron recognizes the notion that the IRS is in a
superior position to make judgments concerning the
administration of the ambiguities in its enabling statute.@).




6
See RRA, Pub. L. No. 105-206, 112 Stat. 685.

                             24
        Finally, in our discussion of Chevron we take note
of Denise=s argument that the inclusion of deadline
periods in subsections (b) and (c) but omission of such a
period in subsection (f) Ademonstrates Congressional
intent that requests for equitable relief not be subject to a
bright-line time limitation, but rather allow the taxpayer to
request relief during the 10-year collection period of [26
U.S.C.] ' 6502.@ Appellee=s br. at 15. But inasmuch as
Section 6502 is a limitation only on the government=s
time for collection, Denise really is arguing that there is
no deadline for filing a subsection (f) claim and that the
Secretary by regulation cannot fill the void that Congress
left by omitting such a deadline. We are reluctant to
reach such a result as it would be inconsistent with the
practice of the federal courts to borrow statutes of
limitations from appropriate sources, even state law, to
fill the void that Congress leaves when it does not
establish a statute of limitations. See, e.g., Lake v.
Arnold, 232 F.3d 360, 366 (3d Cir. 2000). Moreover,
Denise=s argument is hardly consistent with the general
practice of Congress to provide for all sorts of specific
periods for action to be taken under the Internal Revenue
Code.7

7
 We have not overlooked our contemporaneous opinion in Rea
v. Federated Investors, No. 10-1440, 2010 U.S. App. LEXIS
25501, at * 7,      F.3d      ,      (3d Cir. Dec. 15, 2010), a
case construing a statute dealing with employment protection
to persons who had been or were in bankruptcy enacted in a
format in some ways similar to that in section 6015. There we
would not expand on the limited protection given to persons in

                              25
private employment from bankruptcy discrimination to include
the more expansive protection from bankruptcy discrimination
given to pubic employees. In Rea we declined to Acontravene
congressional intent by implying statutory language that
Congress omitted.@ But Rea dealt with the construction of a
statute, not with whether a regulation implementing a statute
should be upheld under the principles in Chevron, the issue
involved here. Thus, though we uphold the regulation at issue
here we are not Aimplying@ anything into section 6015.

                             26
      D.     Equitable Tolling

        Denise lastly argues that even if the regulation is
valid, it is subject to equitable tolling and she urges that
the deadline period be tolled here.8 We have held that
Athe tolling of filing deadlines is appropriate where
principles of equity would make the rigid application of a
limitation period unfair.@ Walker v. Astrue, 593 F.3d
274, 279 (3d Cir. 2010) (internal quotation marks and
citation omitted). There may be equitable tolling A(1)
where the defendant has actively misled the plaintiff
respecting the plaintiff's cause of action; (2) where the
plaintiff in some extraordinary way has been prevented
from asserting his or her rights; or (3) where the plaintiff
has timely asserted his or her rights mistakenly in the
wrong forum.@ Hedges v. United States, 404 F.3d 744,
751 (3d Cir. 2005) (internal quotation marks and citation
omitted). But inasmuch as the Tax Court did not
address the equitable tolling issue and additional facts
not in the record may be material to the issue we think that
that Court should explore the issue in the first instance. We
therefore will remand the case to the Tax Court to decide
whether the Treasury Department regulation at 26 C.F.R. '
1.6015-5(b)(1) is subject to equitable tolling and, if so,
whether Denise meets the equitable tolling standard.


8
 In the section of her brief dealing with equitable tolling
Denise does not explain why there should be equitable
tolling in this case. Rather, she concentrates on why
there can be equitable tolling.

                             27
                      V. CONCLUSION

       For the foregoing reasons we will reverse the decision
of the Tax Court entered November 5, 2009, to the extent that
that decision reflected the Tax Court=s opinion that the
regulatory deadline for claims under subsection 6015(f) is
invalid, and will remand the case to the Tax Court to consider
the equitable tolling issue. The parties will bear their own
costs on this appeal.



AMBRO, Circuit Judge, dissenting

       Spouses seeking relief from joint and several liability
for understatements or underpayments of income taxes look to
26 U.S.C. § 6015. Among other things, it spares innocent
spouses when it is equitable to do so. Id. § 6015(b) (dealing
with understatements).9 But to be eligible for relief they must
apply within two years after the IRS begins collection activity.
Id. § 6015(b).

       What if an innocent spouse does not qualify because
two years have passed since collection efforts began? It
appears there is a safety-valve (Ms. Mannella’s counsel calls it
a ―catchall‖) ─ § 6015(f). All that it requires, other than

       1
           Section 6015(c) also provides relief for certain
divorced or separated taxpayers, and for these persons imposes
an explicit two-year statute of limitations. However, it is of
little relevance to our case and is not discussed in this dissent.

                               28
showing relief is not available under subsection (b), is that it
not be fair to hold the innocent spouse responsible for the other
spouse’s tax liability. The intuitive (indeed, blink) thought,
then, is that the time to file under subsection (f) extends
beyond two years. After all, it can’t logically be less time, as
subsection (b) is available for at least some taxpayers who
elect within two years, and thus, one would think, (f) would be
available for later applicants.

       Is it that easy? Well, no. There is a catch (as opposed
to a catchall), we are told. Though subsection (f) enacted by
Congress sets no time limit to seek relief, the Department of
the Treasury 10 has adopted a Regulation ─ 26 C.F.R.
§ 1.6015-5(b)(1), complemented by IRS Rev. Proc. 2003-61
§ 4.01(3)11 ─ that does. It is two years.

       The United States Tax Court has overruled that
deadline, Mannella v. C.I.R., 132 T.C. 196 (2009), and the IRS
appeals. Its argument, which won in the Seventh Circuit
Court’s decision in Lantz v. C.I.R., 607 F.3d 479 (7th Cir.
2010), is essentially that Chevron U.S.A., Inc. v. Natural
Resources Defense Council, 467 U.S. 837 (1984), requires us
to defer to its judgment, as that judgment is reasonable.

        The Tax Court, whose hands heretofore were tied only
in the Seventh Circuit,12 reasons that the Regulation is invalid

       2 I use ―Department of the Treasury,‖ ―Secretary‖ (or
―Secretary of the Treasury‖), the ―Service,‖ and ―IRS‖
interchangeably.
       3 See also Rev. Proc. 2000-15 § 4.01(3).
      4 See Golsen v. Commissioner, 54 T.C. 742, 1970 WL
2191 (1970), aff’d 445 F.2d 985 (10th Cir. 1971) (determining

                               29
under step one of Chevron’s procedure for reviewing an
agency’s construction of a statute it administers because
Congress has spoken directly to the issue involved.
Specifically, the Tax Court reasons that the Regulation ―runs
directly contrary to the nature of the relief provided in section
6015(f).‖ 132 T.C. at 202. And even were subsection (f)
deemed silent or ambiguous, ―a 2-year limitations period is not
a permissible construction of [that provision], and therefore
[the Regulation] is invalid under Chevron step 2,‖ id., which
holds that congressional silence or ambiguity on a specific
issue confers on the administrative agency the power to
construe the statute in any way that is permissible (that is,
reasonable).

        I agree with my colleagues, and not the Tax Court, that
Congress has not spoken directly on what the timeframe under
subsection (f) must be. Indeed, the subsection is literally
silent.13

       In that case, Chevron’s second step comes into play.
My colleagues, and all three members of the panel in Lantz,
hold that the Regulation passes muster. They reason, per
Chevron, that deference is due an agency’s construction of a
statute it implements, i.e., a presumption of validity attends
that construction. Thus, though Ms. Mannella’s position has

that the Tax Court must apply the law of the Court of Appeals
to which an appeal for that case would later lie).
        13 That said, the Tax Court’s reasoning is not so
specious that it deserves to be dismissed as simply oxymoronic
by its use of ―audible silence.‖ Lantz, 607 F.3d at 481. That
gibe, however, does sidestep another oxymoron – humble
pedantry.

                               30
―support,‖ Maj. Op. at 22, and ―[t]he arguments against the
Tax Court’s interpretation of subsection (f) as barring a fixed
deadline . . . are powerful,‖ Lantz, 607 F.3d at 486, they do not
overcome that presumption. Put another way, that some, or
even most, courts would have chosen a different deadline than
that picked by the IRS is irrelevant, as the Supreme Court has
settled since 1984 who gets first call in construing the
statute.14

        But that first call must be reasonable. It is hard to say
that is so when the IRS gives no reasons for ―add[ing] a new
threshold requirement,‖ Rev. Proc. 2003-61 §3.01, for
subsection (f) eligibility. ―It is well-established that an
agency’s action must be upheld, if at all, on the basis
articulated by the agency itself.‖ Motor Vehicle Mfrs Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983). Here,
however, the IRS has not advanced any reasoning for its
decision to impose a two-year limitations period on taxpayers
seeking relief under subsection (f), leaving us no basis to

       14 As this is settled law, I don’t enter the well-vetted
briarpatch of whether the Supreme Court should have
accorded agencies of the Executive Branch interpretive powers
that courts thought by tradition belonged to them. See
generally Jack M. Beerman, End the Chevron Experiment
Now: How Chevron Has Failed and Why It Can and Should be
Overruled, 42 Conn. L. Rev. 779 (2010); Cass R. Sunstein,
Law and Administration After Chevron, 90 Colum. L. Rev.
2071 (1990); Cynthia R. Farina, Statutory Interpretation and
the Balance of Power in the Administrative State, 89 Colum. L.
Rev. 452 (1989); Joseph F. Weis, Jr., A Judicial Perspective on
Deference to Administrative Agencies: Some Grenades From
the Trenches, 2 Admin. L. J. 301 (1988).

                               31
conduct the analysis mandated by Chevron step two.

       There may exist justifications on which the IRS could
have reasonably relied in order to impose a two-year limit on
subsection (f) relief. The problem is that there are also
arbitrary and capricious reasons that, if articulated by the
Service as the basis for the two-year limit, would require us to
strike down that limit—for example, if the IRS enacted the
two-year deadline based on an incorrect belief that the statute
required it, or based on a factual supposition belied by the
administrative record. See, e.g., Zheng v. Gonzales, 422 F.3d
98, 120 (3d Cir. 2005) (rejecting immigration regulation at
Chevron step two because it was based on an impermissible
reading of the 8 U.S.C. § 1255(a)). Because the IRS has not
articulated its reasoning, we cannot discern whether the
two-year limit falls into the permissible, or the arbitrary and
capricious, category.

       Into the vacuum left by the IRS the Lantz Court has
injected reasoning of its own, which my colleagues cite at
length. But it is black-letter law—and a necessary corollary
of the deference owed to agencies—that courts may not
supplement deficient agency reasoning.         Sec. & Exch.
Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943) (―The
grounds upon which an administrative order must be judged
are those upon which the record discloses that its action was
based.‖). Thus, the Lantz Court’s surrogate surmising of
agency reasons does not, I believe, save the two-year limit.15

        15 My colleagues largely do not engage in this exercise
(though nothing they write shows disagreement), instead
rejecting Ms. Mannella’s arguments against the two-year limit
because they do not ―clearly demonstrate that Congress
intended that requests for relief under subsection 6015(f) not

                              32
      Further, I do not find Lantz’s reasoning in support of the
two-year limit to be convincing. I will address those reasons,
which my colleagues seemingly endorse, in turn.

        1. Reason: The Lantz Court wrote that, absent a
two-year deadline in (f), the two-year deadline in (b) would be
made superfluous, as ―the substantive criteria of th[at]
section[] are virtually the same as those of (f).‖ Lantz, 607
F.3d at 484. Indeed, it took this thought even further by
stating that ―[h]ad the Treasury decided to impose no deadline
on the filing of claims under subsection (f), or even just a
deadline longer than two years, or in lieu of a fixed deadline
the flexible deadline of the laches doctrine, it would have been
undermining the two-year deadline fixed by Congress in
subsection[] (b).‖ Id.

            Response: To begin, to the extent that it is correct
that the ―substantive criteria‖ of (b) and (f) are ―virtually the
same,‖ id. at 484, then Lantz’s approach renders subsection (f)
superfluous, which cannot be what Congress intended. As
Lantz later notes, however (and the majority agrees, Maj. Op.
at 18), there is a large class of taxpayers who would be eligible

be subject to a two-year filing deadline.‖ Maj. Op. at 20. By
this approach my colleagues place on Ms. Mannella the burden
(a heavy one, at that) of proving that it is not reasonable to
adopt a deadline backed by no reason. I do not buy this
approach.        Moreover, it also ducks the critical
inquiry—whether the IRS’s reason for implementing the
two-year limit was ―arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.‖ 5
U.S.C. § 706(2)(A). By abjuring reason, the IRS, I believe,
abuses its discretion.

                               33
for relief under (f), but not (b), because the latter, unlike the
former, applies only to: (i) tax understatements, and not tax
underpayments; id. at 486; and (ii) spouses who lacked actual
or constructive knowledge of the understatement.

       Moreover, subsection (f) will not ―undermin[e]‖ the
two-year deadline imposed in subsection (b) even as to those
taxpayers who (but for the two-year limit) might qualify under
both subsections. Of significance, (f) is discretionary,
whereas (b) is mandatory. Compare § 6015(f) (―the Secretary
may relieve [the innocent spouse] of such liability‖), with
§ 6015(b) (―the [innocent spouse] shall be relieved of liability
for tax‖) (emphases added). Thus, even if (f) has no time
limit, taxpayers who might qualify under (b) would be
well-advised to file in time to take advantage of that mandatory
provision instead of waiting to seek discretionary relief under
(f). Put another way, Congress could have chosen to free the
IRS to afford discretionary relief to innocent spouses who
missed the two-year deadline in certain exceptional cases,
while maintaining the two-year limitations period for the
mine-run of cases.
        In addition, as my colleagues note, Maj. Op. at 21-22,
Congress amended 26 U.S.C. § 66 (addressing the treatment of
community property when spouses do not file joint returns in
community-property states) by adding a subsection (c) at the
same time it added subsection (f) to § 6015, and the language
of each subsection mirrors the other. Statements in the
legislative history of § 66(c) indicate that the IRS should
consider the timing of the request for relief. H.R. Rep. No.
98-432, pt 2, at 1501 & 03 (1984) (the IRS should consider,
inter alia, ―whether the defense was promptly raised so as to
prevent the period of limitations from running on the other
spouse‖). Moreover, the Tax Court pointed out in its decision

                               34
now reversed by the Seventh Circuit that, ―[i]n [the]
announcement of the proposed regulations under [§] 66(c), 67
Fed. Reg. 2841 (Jan. 22, 2002), the Secretary [of the Treasury]
observed that the relief provided in sec. 66(c) is analogous to
the relief provision in section 6015(b) *** [and] section
6015(f).‖ Lantz v. C.I.R., 132 T.C. 131, 142 n.9 (2009),
overruled by 607 F.3d 479 (7th Cir. 2010).

       2. Reason: The Lantz Court also observed that
―[s]ince the government can refuse to grant equitable relief to
someone who meets the statutory criteria and applies within
two years of the first collection action, why can’t it decide to
deny relief to a class of applicants defined as those who waited
too long?‖ 607 F.3d at 485 (emphasis in text).

           Response: I agree that the answer to this rhetorical
question is that the Secretary can exercise the discretion
granted by subsection (f) either case-by-case or categorically.
Cf. Lopez v. Davis, 531 U.S. 230, 243-44 (2001) (Bureau of
Prisons could exercise its discretion to reduce the sentences of
certain prisoners on a categorical basis). However, because it
is not clear why the IRS promulgated the two-year limit (or
whether it even purported to do so as an exercise of its
discretion at all, rather than out of a misguided perception of
what the statute required), its authority to exercise its
discretion categorically should not save the two-year limit the
Regulation by ukase imposes.

       3. Reason: Though ―innocent spouses who fall
through the cracks in (b),‖ Lantz, 607 F.3d at 484., have the
safety protection of (f), ―[t]he details . . . were left to the
Treasury Department to work out . . . .‖ Id. The preamble to
(f) confers on the Secretary of the Treasury the right to
prescribe ―procedures‖ to relieve individuals of liability on

                              35
joint income tax returns. When claims may be brought is such
a procedure. ―Congress’s authorizing an agency to grant
discretionary relief under procedures that the agency is to
devise itself . . . writes the agency a blank check; and one of
the blanks on the check is the deadline for applying for such
relief.‖ Id. at 485.

            Response: If the preamble to both subsections (b)
and (f) is ―[u]nder procedures prescribed by the Secretary,‖
and (b) has a deadline of two years while (f) does not, then is
not that deadline substantive rather than procedural?
Procedures here cover how to go about making a request for
relief, and limitations periods are generally considered
substantive. Cf. Lafferty v. St. Riel, 495 F.3d 72, 76 (3d Cir.
2007) (statutes of limitation are substantive, not procedural,
for purposes of determining whether state or federal law
applies in diversity cases). More specifically, in the tax
context ―a time bar is not simply a procedural rule. In the case
of equity, it has the substantive effect of making one
circumstance, the time of the claim, the only relevant factor.‖
Hall v. C.I.R., 2010 WL 3703837 *3 (U.S. Tax Ct.).
       4. Reason: Finally, the Lantz Court observed that
the IRS could impose a deadline for subsection (f) applications
―designed to reduce the flow to manageable proportions.‖
607 F.3d at 486.

             Response: While it may be true that the IRS
could impose a deadline in order to reduce the sheer number of
applications for relief under subsection (f), that observation is
of little relevance here, where there is no administrative (or
other) record of an unmanageable flow of late-filed exemption
applications.


                               36
                   *     *    *     *    *

        To deny taxpayers who miss the deadline to invoke
subsection (b) even a chance to make an equitable exemption
claim under (f) is concededly ―harsh.‖ Id. Those taxpayers
are left in a Catch-22 paradox: they are ineligible to seek an
exemption under (f) unless ineligible under (b), but once
ineligible as to timing under the latter they can’t be eligible
under the former. The take-away thought for some may be
that Congress could have drafted directly (or more clearly) but
it didn’t, and now the agency gets to make the gatekeeping
rules. But the agency only gets to do so within reason.

       And there’s the rub. It gave no reasons. Courts thus
make up or surmise reasons (and even they underwhelm). Is
this the proper way to review interpretive decisions by
agencies?

       The Supreme Court has answered that question in the
negative. To repeat: ―[i]t is well-established that an
agency’s action must be upheld, if at all, on the basis
articulated by the agency itself.‖ Motor Vehicle Mfrs Ass’n,
463 U.S. at 50. When courts ignore that admonition, Chevron
becomes an exit ramp to the twilight zone by ―reliev[ing] the
pressure on agencies to develop a full, expert record . . . .‖
Elizabeth V. Foote, Statutory Interpretation or Public
Administration: How Chevron Misconceives the Function of
Agencies and Why it Matters, 59 Admin. L. Rev. 673, 710 (Fall
2007). In this way, ―[r]eviewing courts can brush off serious
challenges to agency decisions by invoking Chevron without
engaging whether the agency is thwarting imperfectly
expressed congressional intent.‖ Beerman, End the Failed
Chevron Experiment Now: How Chevron Has Failed and Why
It Can and Should be Overruled, 42 Conn. L. Rev. at 784. I

                              37
believe this is what happened here, and thus respectfully
dissent.




                           38
