In Big Apple Tompkins Realty LLC v. Commissioner, 167 T.C. No. 7 (2026), the Tax Court held that the 90-day filing deadline in section 6234(a) was not jurisdictional, meaning that if a partnership did not file within the 90-day deadline, the court may nonetheless hear the case. This 90-day filing requirement is triggered by the date of the Notice of Final Partnership Adjustment (the “FPA”) issued to a partnership and its partnership representative under the audit regime enacted in the Bipartisan and Budget Act (i.e., a BBA partnership). This is a different result from the one that applies to partnerships under the unified audit and litigation procedures enacted in the Tax Equity and Fiscal Responsibility Act (i.e., a TEFRA partnership). 
As an aside, Judge Marvel discussed the allocation of the burden of proof. Most cases are decided on a preponderance of evidence (meaning sufficient evidence to conclude whether the existence of a fact at issue is more likely than not). Occasionally, if there is insufficient evidence to decide the case, the decision rests on which party had the burden of proof (meaning the party required to offer that evidence). If you are grappling with the burden of proof, the following additional cases are instructive: Talley Indus., Inc. v. Commissioner, 116 F.3d 382 (9th Cir. 1997), rev’g, T.C. Memo. 1996-559; Belagio Fine Jewelry, Inc. v. Commissioner, 162 T.C. 243, 246-249 (2024); Dynamo Holdings Ltd. P’ship v. Commissioner, 150 T.C. No. 10 (2018); NT, Inc. v. Commissioner, 126 T.C. 191 (2006);and Murfam Enterprises LLC v. Commissioner, T.C. Memo. 2023-73.
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If you are dealing with the IRS in a tax case or anticipate tax litigation and need assistance, reach out to the team at K. Tyson Law for assistance. Our team spent decades working with IRS examiners and in litigating cases on behalf of the IRS.
August 6, 2026. Written by Kim Tyson, J.D., LL.M.