Footnotes

² If an income tax return is filed earlier than the date on which it is due, section 6513(a) treats that return as if it was filed on the relevant due date. For example, an income tax return due on April 15, but filed on April 9, is treated for purposes of the Code as if it was filed on April 15.

³ The term “deficiency” is defined in section 6211, and relevant procedures are set out in sections 6212 through 6216.

¹ Although section 6201(a) refers to the “Secretary,” the Code defines that term to mean “the Secretary of the Treasury or his delegate.” I.R.C. § 7701(a)(11)(B); see also I.R.C. § 7701(a)(12) (defining the term “or his delegate”). The Secretary has delegated these duties to the Commissioner, who in turn has delegated them to other Internal Revenue Service (IRS) officials. See Farhy v. Commissioner, No. 10647- 21L , 160 T.C., slip op. at 5 (Apr. 3, 2023); Treas. Reg. §§ 301.6201-1(a), 301.7601- 1, 301.7701-9.

⁴ The opinion of the Court appears to agree that the relevant issue is whether the notice of deficiency was timely issued , observing that Mr. Couturier “ requests a ruling that the period of limitations on assessment imposed by the newly enacted section 6501( l )(4) renders the notice of deficiency for taxable years 2004 – 2008 untimely. ” Op. Ct. p. 5.

⁵ For a discussion of the disputed issues of fact on this point, see the Order issued by the Court on April 8, 2019, denying each party’s Motion for Partial Summary Judgment on the limitations issue.

⁶ For example, section 313 of the Act did not provide that the amendment applied to returns filed on or before the date of enactment if the period of limitations had not expired as of such date, a formulation Congress used when amending section 6501(c)(8) in 2010. See Hiring Incentives to Restore Employment Act (HIRE Act), Pub. L. No. 111-147, § 513(d), 124 Stat. 71, 112 (2010).

⁷ That is, a case which has been pending in our Court since September 7, 2016, following a timely Notice and Petition, and in which, therefore, the period of assessment has been suspended since the Notice was issued.

⁸ On the flip side, the Commissioner’s authority to assess remains unimpeded and the tax may be assessed “at any time” “[i]n the case of a false or fraudulent return with the intent to evade tax.” I.R.C. § 6501(c)(1). In such a case, the filing of the ret urn does not have the claimed “consequence” of starting the period of limitations, again undercutting the opinion of the Court’s view of the function of section 6501.

⁹ Indeed, section 6501( l )(4)(B) focuses entirely on the period of limitations that is to be applied to taxpayers who are not required to file income tax returns and protects such taxpayers from late assessments even when they file neither an income tax return nor a Form 5329.

¹⁰ Section 6501( l )(4)(B) reinforces this point. Congress spent more than a third of the words of section 6501( l )(4) limiting the Commissioner’s powers to assess taxes with respect to taxpayers who are not required to file income tax returns at all. Yet, Congress wanted such taxpayers to receive the benefit of a limitations period and limited the Commissioner’s ass essment power as to taxes they owed. But the opinion of the Court would seem to suggest such taxpayers remain unprotected because the amendment applies with respect to returns filed after enactment.

¹¹ The only potential for retroactivity arises in cases like this one, where the Commissioner issued a notice of deficiency before December 29, 2022. As I discuss further below, that potential is fully mitigated by section 6503(a)(1).

¹² The same would be true for taxpayers who were not required to file a return and are covered by the provisions of section 6501( l )(4)(B).

¹³ Again, as I have explained above, the same is true with respect to taxpayers covered by section 6501( l )(4)(B) who did not file returns before December 29, 2022.

¹⁴ A taxpayer who was not required to file an income tax return at all received the benefit of a three-year period of limitations. See I.R.C. § 6501( l )(4)(B).

¹⁵ 29 U.S.C. §§ 621– 634.

¹⁶ The Fifth Circuit’s analysis (and that of the Second, Third, Eighth, and Eleventh Circuits in the cases cited in the text) contradicts the opinion of the Court’s assertion that the “ amendment effected a substantive change in the law by providing that a different type of tax return —viz . , Form 1040, regardless of its contents —would trigger the running of a period of limitations for assessment of section 4973 excise tax. ” Op. Ct. p. 10. As the courts of appeals explain in the context before them, the change in the statute of limitations does not affect a party’s underlying liability. Cf. Wilson v. Pena , 79 F.3d 154, 162 (D.C. Cir. 1996) (explaining that extending a limitations period “d[id] not alter the legal effect of any pre-amendment event, nor d[id] it change the remedies available for pre-amendment violations”) ; Forest v. U.S. Postal Serv . , 97 F.3d 137, 139– 41 ( 6th Cir. 1996) (following the Wilson decision’s analysis and observing that “ applying the statute of limitations does not affect the substantive rights of the parties in this case ”) . Here too the amendment did not change any taxpayer’s substantive

¹⁷ See also , e.g., Walsche v. First Invs. Corp. , 981 F.2d 649, 654 (2d Cir. 1992) (“Where a new rule alters substantive rights, to apply the new rule prospectively means to apply it to claims based on conduct occurring from that time forward. However, where . . . the new rule announces a period of limitations, the conduct to which it refers is the plaintiff’s conduct relating to the filing of the claim and not the defendant’s conduct giving rise to the claim.”). As I read the Commissioner’s briefs in this case, the Commissioner does not ask for as broad a holding as the opinion of the Court appears to provide. In paragraph 15 of his Sur- Reply to Petitioner’s Reply to Respondent’s First Amended Response to Petitioner’s Motion for Partial Summary Judgment filed on November 28, 2023, the Commissioner argues as follows: Petitioner states that “Congress has made a legislative judgment that Respondent ought not to be able to pursue deficiencies under section 4973 by issuing a Notice of Deficiency more than six years after the taxpayer has filed their income tax return.” While this is true after December 29, 2022, the date of enactment for SECURE Act 2.0 of 2022, when the notices of deficiency in this case were issued the statute of limitations for assessing and collecting the section 4973 excise tax was open . I.R.C. § 6501 (c) (3); Paschall v. Commissioner, 137 T.C. 8 (2011). Therefore, the notices

¹⁸ This case does not present the latter fact pattern. And, for the reasons discussed in Part II above, I would have left answering that question to a case when the issue was properly presented. But because the opinion of the Court does otherwise, I proceed to explain why its analysis is mistaken .

¹⁹ For taxpayers who were not required to file a return, the lookback period is three years, rather than six. See I.R.C. § 6501( l )(4)(B).

²⁰ The changes included two added subparagraphs —section 6501( l )(4)(C) and (D)—which were incorporated into section 313 of the Act as enacted. As already discussed, section 6501( l )(4)(C) is the provision setting forth a six-year —rather than a three-year —period of limitations when an income tax return is filed. Compare Act § 313(a) (adding the current section 6501( l )(4)) and S. Amend. 6552 to H.R. 2617, 117th Cong. , div. T, § 313(a) (2022), reprinted in 168 Cong. Rec. S7 580 – 81 (daily ed. Dec. 19, 2022) , with Securing a Strong Retirement Act of 2022, H.R. 2954, 11 7th Cong. § 313 (2022) (proposing to amend section 6501( l ) by adding a new paragraph (4) that included the text of only subparagraphs (A) and (B) of the current section 6501( l )(4)) .

²¹ The Court in Landgraf also observed that “the mere fact that a new rule is procedural does not mean that it applies to every pending case. A new rule concerning the filing of complaints would not govern an action in which the complaint had already been properly filed under th e old regime . . . .” Landgraf, 511 U.S. at 275 n.29. This observation is fully consistent with the rules discussed and conclusion reached in Part I above. A new rule about the timeliness of future notices of deficiency (section 6501( l )(4)) does not govern a notice of deficiency previously issued and already challenged in a case pending in the Tax Court.

²² of limitations has not run because of the exception provided in section 6501(c)(3). In the Commissioner’s view, under our decision in Paschall v. Commissioner , 137 T.C. 8 (2011), Mr. Couturier was required to file Form 5329 , Additional Taxes on Qualified Plans (Including IRAs) and Other Tax - Favored Accounts, to report his liability for tax under section 4973 but did not, thus making section 6501(c)(3) applicable.

²³ given the posture of the case and the inferences we must draw in favor of the nonmovant, Mr. Couturier has not shown that the limitations period has run or that he is entitled to judgment as a matter of law. D. Mr. Couturier’s Misplaced Reliance on Section 6501( l )(4) Mr. Couturier contends that the addition of section 6501( l )(4) by section 313(a) of the Act requires a different outcome. As the opinion of the Court observes, he contends that “Congress intended that new § 6501( l )(4) apply to all [section 4973] disputes with the IRS . . . that were pending as of the date of enactment.” Op. Ct. p. 8. But as shown above, the text of section 313 of the Act simply does not speak to cases “that were pending [in this Court] as of the date of enactment,” nor to the suspension of the limitations period set out in section 6503(a)(1) for cases to which that rule had already become applicable by December 29, 2022. Mr. Couturier offers no textual argument to the contrary. See also Badaracco v. Commissioner, 464 U.S. at 392 (“[L]imitations statutes barring the collection of taxes otherwise due and unpaid are strictly construed in favor of the Government.” (quoting Lucia v. United States, 474 F.2d 565, 570 ( 5th Cir. 1973))); Tice v. Commissioner, No. 24983- 15, 160 T.C., slip op. at 4 (Apr. 10, 2023) (“In effect, a period of limitations runs against the collection of taxes only because the Government, through Congressional action, has consented to such a defense. Absent Government consent, no limitations defens e exists.” (quoting Lucia , 474 F.2d at 570)).

²⁴ applicable to pending cases is dispositive. Mr. Couturier’s Motion must therefore be denied. II. Refraining from Addressing Any Broader Issues Concerning the Potential Application of Section 6501( l )(4) The analysis set out above fully disposes of Mr. Couturier’s Motion. Therefore, there is no need to opine on the potential broader implications of section 6501( l )(4). As the Chief Justice (then a judge on the D.C. Circuit) has observed, where “a sufficient ground [exists] for deciding [a] case, . . . the cardinal principle of judicial restraint — if it is not necessary to decide more, it is necessary not to decide more—counsels us to go no further . ” PDK Lab s Inc. v. DEA , 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) ; see also Stromme v. Commissioner, 138 T.C. 213, 218 n.8 (2012) (“For now, the better course is ‘ to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case. ’ ” (quoting Whitehouse v. Ill. Cent. R.R. Co. , 349 U.S. 366, 372– 73 (1955))); McLaine v. Commissioner, 138 T.C. 228, 242 (2012) (same). III. The Opinion of the Court’s Mistaken Reading of the Effective Date Provision in Section 313(b) of the Act The good judgment of the guidance set out in Part II above is apparent in a case like this one, where the opinion of the Court’s broader -than- necessary holding reaches the wrong result in circumstances involving taxpayers not before the Court. To summarize, instead of confining its analysis to the facts before i t,

²⁵ presumption against retroactivity. See Landgraf v. USI Film Prods. , 511 U.S. 244 (1994). I explain my disagreement with both points in the sections that follow. A. Focus of Section 6501 and the Proper Question Before Us Section 313(b) of the Act provides simply that “[t]he amendments made by this section [i.e., the addition of paragraph (4) to section 6501( l )] shall take effect on the date of the enactment of this Act [i.e., December 29, 2022].” In interpreting this provision, the opinion of the Court fails to appreciate that the focus of section 6501 is on placing limitations on the Commissioner’s authority to make an assessment (and providing corresponding protection from stale claims to taxpayers). That is the provi sion’s raison d’etre. Each of its subsections must be read in light of that focus. Thus, Congress’s adoption of section 6501( l )(4) was directed to telling the Commissioner how he should exercise his power of assessment. And the effective date provision set out in section 313(b) of the Act should be read accordingly, to apply to any assessment made (or, in the deficiency context, any notice of deficiency issued) on or after December 29, 2022, taking into account the rules of section 6503(a)(1). Text and context both point the same way. The opinion of the Court, however, views the amendment as being focused on “specif[ying] the consequences of filing tax returns,” rather than as addressing the Commissioner’s assessment power. Op. Ct. p. 8. As the opinion of the Court puts it: “B ecause this amendment specifies the consequences of filing tax returns, it is most naturally read to apply in the case of returns filed on or after the effective date. ” Op. Ct. p. 8. Or as the opinion of the Court further states: “I n short, section 6501( l )(4) specifies the consequences of filing tax returns. Because Congress provided that this amendment ‘ shall take effect on the date of the enactment, ’ we think the amendment is logically read to apply to tax returns filed on or after the date of enactment. ” Op. Ct. p. 10. But the assumption the opinion of the Court makes (that the focus of the amendment is to specify consequences of filing returns) does not hold up to scrutiny, and the conclusion the opinion of the Court reaches based on that assumption (tha t the “most natural[]” or “logical[]” reading is that the amendment applies to returns filed after December 29, 2022) does not follow. As I have demonstrated above, and as the title of the provision (“Limitations on assessment and collection”) helpfully notes, section 6501 sets out limitations on the Commissioner’s authority to assess

²⁶ taxes. Its focus is on restrictions on the Government’s power to assess and collect. Courts have consistently understood the provision this way. See, e.g., Bufferd v. Comm issioner, 506 U.S. 523, 525 – 26 (1993) (“Code § 6501(a) establishes a generally applicable statute of limitations providing that the Internal Revenue Service may assess tax deficiencies within a 3- year period from the date a return is filed.”); Badaracco v. Commissioner, 464 U.S. at 388 (“[Section 6501(a)] establishes a general three -ye ar period of limitations ‘after the return was filed’ for the assessment of income and certain other federal taxes.”). While the filing of returns is of course a relevant element in circumscribing the Commissioner’s authority to assess—one must know when the return was filed to determine whether the three- year, six-year, or indefinite period of limitations has begun to ru n —the principal thrust of section 6501 is not on “the consequences of filing returns,” as the opinion of the Court assumes. Myriad other Code provisions focus on the consequences of filing returns. See, e.g., I.R.C. § 6651(a)(1) (imposing addition to tax for failure to timely file income tax return); I.R.C. § 6651(a)(2) (imposing addition to tax for failure to timely pay income tax shown on an income tax return); I.R.C. § 6698 (imposing penalty for failure to file partnership returns); I.R.C. § 6699 (imposing penalty for failure to file S corporation return). Section 6501 does not need to, as that is not its function. The principal question section 6501 asks is “By when must the Commissioner assess the taxes the Code imposes?” Its principal question is not “What are the consequences of filing a return?” A simple observation illustrates the point. The limitation on assessment set out in section 6501 applies not only to taxes required to be shown on returns, but also to taxes payable by stamp, when a return need not be filed. Yet, section 6501 imposes a l imit on the Commissioner’s authority to assess taxes payable by stamp as well.

²⁷ governs the Commissioner’s actions and tells him how to do his job from the date of enactment forward. The date of the filing of the return is relevant in an ancillary fashion, only insofar as it affects the Commissioner’s exercise of his power. It is an opening act so to speak, not the main event. The opinion of the Court is mistaken to assume otherwise. The opinion of the Court observes that the “ amendment says nothing about assessment and does not include that word. ” Op. Ct. p. 10. The opinion of the Court is incorrect as a technical matter. The amendment does indeed use the word “assessment” in the heading of section 6501( l )(4)(C) —styled “Period for assessment in case of income tax return.” (Emphasis added.) Although titles in the Code do not have legal effect, see I.R.C. § 7806(b) (stating that no “descriptive matter relating to the contents of [the Code shall] be given any legal effect”); see also Rowen v. Commissioner, 156 T.C. 101, 112 n.9 (2021) (first citing United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 222 – 23 (1996); and then citing N.Y. & Presbyterian Hosp. v. United States, 881 F.3d 877, 886 n.13 (Fed. Cir. 2018) (“[T]itles [in the Code] have no legal effect . . . .”)), the legal rule of section 7806(b) does not cause the word “assessment” to disappear from the amendment. More importantly, in addition to the actual word in the heading of section 6501( l )(4), the references to “assessment” in section 6501(l )(4) take the form of cross-references. For example, section 6501( l )(4)(C) says that “subsection (a) [recall, this is the subsection stating that taxes ‘shall be assessed’ within three years] shall be applied by substituting a 6-year period in lieu of the 3-year period otherwise referred to in such subsection.” Congress’s use of shorthand and cross-references (in the pl ace of the word “assessment”) cannot obscure the point that the enactment of section 6501( l )(4) has meaning only insofar as it tells us what shall be done with respect to assessments. Take its impact on assessments away and section 6501( l )(4) becomes a nullity.

²⁸ The opinion of the Court’s mistaken assumption that the amendment focuses on the consequences of filing tax returns rather than on the Commissioner’s power to assess leads the opinion of the Court to a further framing error. The opinion of the Court view s the question presented as “whether section 6501( l )(4) applies retroactively.” Op. Ct. p. 5. As I explain below, the answer to that question is no. But that is not the right question here. The right question is whether the adoption of section 6501( l ) (4) made section 6503(a)(1) (and also section 6215) inapplicable to this case. As I have already discussed, see Parts I.B through I.D above , the simple answer to this question is also no. B. Prospective Application of Section 313 of the Act in Cases Where Notices of Deficiency Were Not Issued by December 28, 2022 The opinion of the Court relies on the presumption against retroactive application of statutes to resolve any ambiguity as to the meaning of the effective date provision. But the Court errs in two material respects. First, applying section 6501( l )(4) to future assessments (or notices of deficiency in deficiency cases issued after December 29, 2022) accords with the most natural reading of that section and the effective date provision and is not retroactive.

²⁹ that it governs the Commissioner’s actions from that date forward (i.e., prospectively). To illustrate this point, when issuing notices of deficiency and making assessments after December 29, 2022, in my view the Commissioner must take into account any federal income tax return a taxpayer has filed for the relevant year (not just the filing o f Form 5329). If the taxpayer filed a return more than six years earlier and the Commissioner has not yet issued a notice of deficiency, then the Commissioner is precluded from making an assessment. There is nothing retroactive about this result —the new rule constrains the Commissioner’s future actions, not his past ones. The opinion of the Court skips over this scenario, focusing instead on cases like this one, where the Commissioner did issue a notice of deficiency before December 29, 2022. And I agree that there is at least some potential for retroactivity in such a case. But again, there is no actual problem because, by congressional design, the running of the period of limitations on assessment is suspended and, under sections 6213(a), 6503(a)(1), and 6215 will remain suspended until 60 days after our decision beco mes final. In these cases, therefore, section 6501( l )(4) does not retroactively prevent the Commissioner from making an assessment. Put another way, for notices of deficiency issued on or after December 29, 2022, the Commissioner must take into account the provisions of section 6501(l )(4) in determining whether any future assessment would be timely. (For notices of deficiency issued before that date, section 6501( l )(4) will not affect the Commissioner’s assessment authority because the limitations period has already been suspended under section 6503.) If an income tax return described in section 6501( l )(4) has been filed, the comput ation of the relevant period under section 6501(a) must take that return into account (even if no Form 5329 was filed).

³⁰ is nothing retroactive about this approach —again, the rule limits the Commissioner’s future actions. This framework finds support in the cases the opinion of the Court relies on. In deciding whether a statute operates retroactively, “the court must ask whether the new provision attaches new legal consequences to events completed before its enactment.” Landgraf , 511 U.S. at 269 – 70; see also id. at 291 (Scalia, J., concurring in the judgments) (“The critical issue . . . [when conducting retroactivity analysis is] what is the relevant activity that the rule regulates.”). As the foregoing discussion should make clear, giving effect to the congressi onal command in section 313(b) of the Act does not result in a retroactive application of the amendment. The amendment affects the future (post -enactment) assessment of tax liabilities and, relatedly, the future (post -enactment) issuance of notices of def iciency that determine such liabilities. It leaves assessments based on notices of deficiency issued before December 29, 2022, that are the subject of cases pending in our Court, entirely unaffected. Thus, the amendment attaches new legal consequences to events (i.e., the Commissioner’s issuance of notices of deficiency and the making of assessments) that take place after December 29, 2022, and regulates conduct (the Commissioner’s) that occurs after that date, implicating no retroactivity concerns. As the Supreme Court has explained: A statute does not operate “ retrospectively ” merely because it is applied in a case arising from conduct [here, the taxpayer’s filing of an income tax return (or the nonfiling of such a return as contemplated by section 6501( l )(4)(B) if a return was not required)] antedating the statute ’ s enactment, see Republic Nat. Bank of Miami v. United States , 506 U. S. 80, 100 (1992) ( Thomas , J. , concurring in part and concurring in judgment), or upsets expectations based in prior law [here, the Commissioner’s expectation of potentially having an unlimited period of limitations when a Form 5329 was not filed] . Landgraf , 511 U.S. at 269. As the Court further illustrated: Even uncontroversially prospective statutes may unsettle expectations and impose burdens on past conduct: a new property tax or zoning regulation may upset the reasonable expectations that prompted those affected to acquire

³¹ property; a new law banning gambling harms the person who had begun to construct a casino before the law ’ s enactment or spent his life learning to count cards. See [L. Fuller, The Morality of Law ] 60 [(1964)] ( “ If every time a man relied on existing law in arranging his affairs, he were made secure against any change in legal rules, the whole body of our law would be ossified forever ” ). Moreover, a statute “ is not made retroactive merely because it draws upon antecedent facts for its operation. ” Cox v. Hart , 260 U. S. 427, 435 (1922). See Reynolds v. United States, 292 U. S. 443, 444– 449 (1934); Chicago & Alton R. Co. v. Tranbarger, 238 U. S. 67, 73 (1915). Id. at 269 n.24. That is precisely what Congress did here. Under our decision in Paschall , the Commissioner may have had an unlimited time to assess tax with respect to a taxpayer who had filed an income tax return (without appropriate disclosures on this issue) but had failed to file Form 5329. Congress thought that inappropriate and imposed a new six-year period of limitations effective on enactment so that a taxpayer who filed an income tax return could get the benefit of a shorter limitations period.

³² occurred, the relevant limitations period was two years. Id. at 45. After the underlying conduct occurred, but before the plaintiff in the case filed suit, Congress changed the limitations period to require that a plaintiff bring the action within 90 days after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC). Id. The plaintiff filed a lawsuit within two years of the allegedly discriminatory conduct , but more than 90 days after receiving notice from the EEOC. Id. at 44. The district court dismissed the lawsuit for failure to comply with the shorter limitations period. Id. On appeal, the plaintiff argued that the applicable period of limitations was not the one in effect when the complaint was filed , but the one in effect when the claim accrued. Id. at 45. The Fifth Circuit rejected the argument and held that the 90- day statute of limitations applied to claims filed after the amendment became effective, regardless of when the claim accrued. Id. The Fifth Circuit observed: [T]he defendant’s allegedly discriminatory conduct occurred before the 1991 Act became effective, but the plaintiff filed suit after the 1991 Act became effective. The 1991 Act was in effect throughout the time that [the plaintiff] received his right-to-s ue letter from the EEOC to the time he filed his cause of action. The 90-day limitations period was the law in effect when he filed his complaint, and it is the law that applies in this case. Id. Other courts have reached the same conclusion as the Fifth Circuit. See, e.g. , Vernon v. Cassadaga Valley Cent. Sch. Dist. , 49 F.3d 886, 889 – 91 (2d Cir. 1995); Garfield v. J.C. Nichols Real Est. , 57 F.3d 662, 664 – 6 5 (8th Cir. 1995) ; Browning v. AT&T Paradyne, 120 F.3d 222, 225 (11th Cir. 1997); Steven I. v. Cent. Bucks Sch. Dist. , 618 F.3d 411, 414 & n.7 (3d Cir. 2010). Reasoning by analogy, what matters is what the law is when the notice of deficiency (which is the equivalent of the filing of the complaint) is issued, not what the law was when the relevant return was filed (which is the equivalent of when the cause of a ction began accruing). Discussing concerns about retroactivity in the ADEA context, the Fifth Circuit noted: In this case, the change in the statute of limitations for filing ADEA claims does not have a retroactive effect; it governs the secondary conduct of filing suit, not the

³³ primary conduct of the defendants. Nor does the statute of limitations alter either party’s liability or impose new duties with respect to transactions already completed. Section 626(e) does not operate retroactively in the manner Landgraf censured. Indeed, although the defendant frames the issue as one of retroactivity, the issue is not technically one of retroactivity, where a change in the law overturns a judicial adjudication of rights that has already become final. In this case, the statute of limitations is applied to conduct that occurred after the statute’s enactment—the plaintiff’s filing of the complaint —not to the allegedly discriminatory acts of the defendant. The only issue is which law to apply to the plaintiff’s acts. St. Louis , 65 F.3d at 46 (footnotes omitted); see also, e.g. , Steven I. , 618 F.3d at 414 (“The Landgraf analysis is typically controlling on issues of retroactivity, in particular the application of new substantive requirements to conduct that occurred in the past. However, because the statute of limitations in IDEA 2004 governs Steven I.’s conduct in fili ng the claim, not the School District’s conduct giving rise to the claim, we need not engage in a retroactivity analysis.”); Vernon , 49 F.3d at 889 (“[A]pplying a new or amended statute of limitations to bar a cause of action filed after its enactment, but arising out of events that predate its enactment, generally is not a retroactive application of the statute . In such a case, the statute is applied to conduct that occurs after the statute’s enactment—plaintiff’s filing of the complaint —not the defendant’s allegedly unlawful acts.” (Citations omitted.)).

³⁴ Thus, if the Commissioner issues a notice of deficiency after December 29, 2022, he must take the statute of limitations “in effect” when he issues the notice, the equivalent of the complaint. St. Louis , 65 F.3d at 45; Vernon , 49 F.3d at 890 (“Retroactivity concerns . . . generally do not bar the application of a changed statute of limitations to a complaint filed after the amendment.”); see also Steven I. , 618 F.3d at 414 (collecting authorities). That is the “secondary conduct” regulated by the statu te. See, e.g. , St. Louis , 65 F.3d at 46; Vernon , 49 F.3d at 890. To the extent the opinion of the Court says otherwise with respect to returns filed (or not filed) by taxpayers who are not before the Court, I believe it is in error.

³⁵ of deficiency at issue in this case are valid for all years at issue (2004 through 2014). I.R.C. §§ 6212(a) and 6213. Respondent issued valid notices of deficiency to petitioner when the statute of limitations was open. Petitioner timely petitioned this Court for a redetermination of those deficiencies. Respondent is barred from assessing the asserted excise taxes until the decision of the Tax Court is final. I.R.C. § 6213(a). Respondent has followed the law as Congress intended at the time it enacted sections 6501(c)(3), 6212, and 6213. Respondent was not “attempting to do what Congress legislated that it should not do.” (Emphasis added.) The emphasized sentence and the sentences that follow seem to me to press a claim that the Commissioner was timely in this case, not that he would be timely with respect to notices of deficiency issued after December 29, 2022, concerning income returns filed six years before that date.

³⁶ section 6501 of the [I.R.C.] of 1986 . . . for assessment of such taxes has not expired as of such date.”). Here, by contrast, Congress told us that the new rule was effective on enactment. To make that rule applicable only to returns filed after December 29, 2022, the opinion of the Court adds to the effective date provision words Congress did not use. Instead of reading the provision as “ tak [ing] effect on the date of the enactment of this Act ,” the opinion of the Court interprets the provision as “ tak[ing] effect [with respect to returns filed] on [or after] the date of the enactment of this Act. ” I would read the provision as Congress wrote it and give it the effect its words bear. See, e.g. , EEOC v. Abercrombie & Fitch Stores, Inc. , 575 U.S. 768, 774 (2015) (“ The problem with [the proposed] approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’ s province. ”); Badaracco v. Commissioner, 464 U.S. at 398 (“Courts are not authorized to rewrite a statute because they might deem its effects susceptible of improvement.”). The framing error described above leads the opinion of Court to unduly constrict the application of the amendment Congress adopted. Under the reading of section 313(b) of the Act that the opinion of the Court adopts, the amendment adopted by section 313 of the Act has no effect for any taxpayers who filed income tax returns before December 29, 2022. Put differently, for taxpayers who filed their income tax returns (but filed no Forms 5329) before December 29, 2022, and those who did not file income tax returns because they were not required to, under the opinion of the Court, the Commissioner appears to remain forever free to start an examination and issue a notice of deficiency with respect to any taxes due under section 4973. This is a misreading of section 313(b) of the Act . Under my reading of section 313(b) of the Act , the Commissioner no longer possesses the authority to assess any taxes imposed by section 4973 if the taxpayer filed an income tax return more than six years ago (or was not required to file such a return, as provided in section 6501( l )(4)(B))

³⁷ to whom notices of deficiency were already issued before December 29, 2022, and whose circumstances are governed by section 6503(a)(1). The text of section 313(b) of the Act and the related Code provisions compel this result. 2. The Context in Which Section 6501( l )(4) Arose Points to the Same Conclusion. Nor is it clear to me why Congress would enact the rule the opinion of the Court adopts in view of the context of the amendment. Section 313 of the Act plainly overturned our holding in Paschall , which Congress viewed as taking taxpayers by surprise. In this context, it would seem unexpected that Congress would defer the impact of the enacted relief until six years into the future. Cf. Lyons v. United States, 99 Fed. Cl. 552, 557 (2011) (“ The Court believes it would be a great surprise to the Congresses of 1938 and 2004 to discover that the law they passed . . . might not assist any person who was wrongfully imprisoned at that time, but possibly only those whom the Government would erroneously convict in the future. ”). The opinion of the Court claims to “find no evidence anywhere in the Act or its legislative history that Congress intended section 6501( l )(4) to apply to pending cases, to prior tax years, or to tax returns filed for prior tax years.” O p. Ct. p. 13. But the support the opinion cites for this statement is a House Report dated March 29, 2022, that describes an older, materially different version of section 313 of the Act never passed by the Senate. See op. Ct. p. 13 n.4 (citing H.R. Rep. No. 117-283, pt. 1 , at 139 – 40 (2022)). And “[f]or those who consider legislative history relevant,” Warger v. Shauers, 574 U.S. 40, 48 (2014), a later summary (Summary) prepared by the Senate Finance Committee and discussing the final version of section 313 of the Act casts serious doubt on the opinion of the Court’s claim. S. Comm. on Fin., 117th Cong., SECURE 2.0 Act of 2022 (2022), https://www.fi nance. sen ate.gov/imo/media/doc/Secure%202.0_Section%20by%20Section%20 Summary%2012- 19- 22%20FINAL.pdf. To simplify the Act’s complicated procedural history, because the Act moved through Congress quickly at the end of 2022, the Senate Finance Committee did not produce a committee report for the proposed legislation. But it did prepare the Summary, which de scribes the Act and reflects the significant changes that had been made to section 313

³⁸ of the Act since the version passed by the House in March.

³⁹ specify how one of its agents, the Commissioner, should carry out his responsibilities. I am not sure that Landgraf’s generic reference to statutes that “impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed,” Landgraf , 511 U.S. at 2 8 0 , was intended to cover rules Congress adopts constraining (through the statute of limitations) the authority of the Federal Government to assess and collect taxes, cf. Vernon , 49 F.3d at 89 0 (“The conduct to which the statute of limitations applies is not the primary conduct of the defendants, the alleged discrimination, but is instead the secondary conduct of the plaintiffs, the filing of their suit. The statute as applied here impaired no rights possessed by either party, see Crane v. Hahlo , 258 U.S. 142, 147 (1922) (‘No one has a vested right in any given mode of procedure.’), increased neither party’s liability, nor imposed any new duties with respect to past transa ctions. The statute cannot be understood to operate retroactively in the manner criticized in Landgraf , and its application here was ‘unquestionably proper.’ See Landgraf , ––– U.S. at ––– , 114 S. Ct. at 1501.”). It seems to me that Congress’s decision to alter the powers of its agent, the Commissioner, in a way that favors taxpayers is quite different from a legislature’s making changes to the rights of an individual or company. The opinion of the Court observes that “[t] he Government, like a private individual, may be ‘a party’ whose rights are impaired by the retroactive application of a statute.” Op. Ct. p. 11. I agree that the Federal Government may be a “party” whose rights may be impaired by the actions of a state government, as they were in United States v. Bacon , 82 F.3d 822, 82 3 – 24 (9th Cir. 1996), the decision the opinion of the Court cites. But I am less certain that the Federal Government should be viewed as a “party” whose “rights” are “impaired” when the U.S. Congress has duly enacted a law that changes the rules for how long the Federal Government has to assess federal taxes, a quintessential government function. In addition, as has been long recognized, “statutes of limitations go to matters of remedy and do not involve the destruction of fundamental rights. Thus, the extent to which a tax assessment is barred by time is within exclusive Congressional control . . . .” Lucia, 474 F.2d at 570 (footnote omitted ) ; see also Garfield , 57 F.3d at 66 4 – 6 5 (rejecting the plaintiffs’ argument that the statute of limitations should be treated as a substantive limit on their case rather than as a procedural limit on the reme dy) .

⁴⁰ The Supreme Court observed in Landgraf that “the great majority of [its] decisions relying upon the antiretroactivity presumption have involved intervening statutes burdening private parties.” Landgraf , 511 U.S. at 2 71 n.25 (collecting authorities). The Court further observed, however, that it had also “applied the presumption in cases involving new monetary obligations that fell only on the government.” Id. (first citing United States v. Magnolia Petroleum Co. , 276 U.S. 160 (1928); and then citing Whit e v. United States, 191 U.S. 545 (1903)). Unlike the statute at issue in Magnolia Petroleum , which addressed the payment of interest on a refund claim and affected how much interest the taxpayer would receive, or that in White , which addressed the computation of pay for Navy officers, section 6501( l )(4) does not require the expenditure of any government funds. It simply imposes a bar on government action. In that respect, perhaps section 6501( l )(4) is better analogized to a waiver of sovereign immunity. As the Ninth Circuit has observed in connection with that topic, statutes that waive the United States ’ s sovereign immunity do not implicate the concerns of “fair notice, reasonable reliance, and settled expectations” that undergird the usual presumption against retroactive application. Landgraf , 511 U.S. at 270. In contrast to laws that spell out rules of conduct by which citizens ’ behavior will be judged, a waiver of immunity only applies to the sovereign. In the former case, “[e]lementary considerations of fairness dictate that individuals should have an opportunit y to know what the law is and to conform their conduct accordingly.” Id. at 265. These considerations are inapplicable in the latter case. State Eng ’ r of State of Nev . v. S. Fork Band of Te- Moak Tribe of W. Shoshone Indians of Nev . , 339 F.3d 804, 812 (9th Cir. 2003). As in the case of a waiver of sovereign immunity, here section 313 of the Act shortened the period during which the Commissioner could assess tax in certain circumstances. The provision “only applies to the sovereign” and would not appear to implicate concerns of “fair notice, reasonable reliance, and settled expectations.” Or perhaps the Landgraf Court’s analysis of procedural rules might provide the appropriate lens for analysis here. Cf. Vernon , 49 F.3d at 89 0 (treating a statute of limitations as a procedural rule); Anderson v. Unisys Corp. , 52 F.3d 764, 765 n.1 (8th Cir. 1995)

⁴¹ (“[W]e consider the limitations period a procedural rather than a substantive requirement, and have found that ‘ courts apply the procedure in effect when the case is before them. ’ ” (quoting United States v. Higgins , 987 F.2d 543, 546 (8th Cir. 1993) )). But cf. Vernon , 49 F.3d at 89 2 (Cabranes, J., concurring) (observing that statutes of limitations “lie on the cusp of the procedural/substantive distinction”). As the Supreme Court noted, “[c]hanges in procedural rules may often be applied in suits arising before their enactment without raising concerns about retroactivity.” Landgraf , 511 U.S. at 275. But see id. at 291 (Scalia, J., concurring in the judgments) (explaining that, for purposes of a retroactivity analysis, “a procedural change should no more be presumed to be retroactive than a substantive one”). And “[b]ecause rules of procedure regulate secondary rather than primary conduct, the fact that a new procedural rule was instituted after the conduct giving rise to the suit does not make applicati on of the rule at trial retroactive.” Id. at 275.

⁴² conclusion with respect to parties not before the Court, I respectfully concur in the result only. GREAVES, J. , agrees with this opinion concurring in the result. BUCH, J. , agrees with Parts I and II of this opinion concurring in the result. URDA, J. , agrees with Part I of this opinion concurring in the result.

⁴³ FOLEY, J. , dissenting: The opinion of the Court holds that “section 6501( l )(4) applies purely prospectively” to tax returns filed on or after December 29, 2022, and in support of this holding, asserts that this is “the most natural reading” of the provision. See op. Ct. p. 13. To the contrary, the most “natural reading” is to simply follow the statute’s plain language. Indeed, nothing in the Consolidated Appropriations Act, 2023 (Act), Pub. L. No. 117- 328, div. T, § 313(b), 136 Stat. 4459, 5349, limits the applicability of section 6 501( l )(4) to tax returns filed on or after December 29, 2022. The effective date rule is unambiguous. E.g. , Hellon & Assocs., Inc. v. Phoenix Resort Corp. , 958 F.2d 295, 297 (9th Cir. 1992) (“[I]f the statutory language is clear, we need look no further than that language . . . in determining the meaning of the statute.”); United States v. Hoffman , 794 F.2d 1429, 1432 (9th Cir. 1986) (“The plain meaning of a statute is controlling absent a clearly expressed Congressional intention to the contrary.” (quoting North Dakota v. United States, 460 U.S. 300, 312 (1983))). The opinion of the Court, however, reaches a result-oriented conclusion that has a tenuous connection to the statutory language. Congressional scriveners do not need our drafting assistance. While Congress implemented narrower effective dates for other provisions in the Act, it, notably, did not do so here. See, e.g. , Act § 302(c), 136 Stat. at 5339 (providing that the amendment applies to taxable years beginning after the date of enactment of the Act); id. § 311(b)(2), 136 Stat. at 5347 (providing that qualified birth or adoption distributions made on or before the date of enactment of the Act will have a threeyear period of limit ations from the date the distribution was received). “This is the highly reticulated Internal Revenue Code, which uses language, lots of language, with nearly mathematic precision.” Summa Holdings, Inc. v. Commissioner, 848 F.3d 779, 789 (6th Cir. 2017), rev’g T.C. Memo. 2015-119. Creating this temporal restriction supplants Congress’s judgment with our own. Section 6501( l )(4) became effective on December 29, 2022. Because petitioner filed only Forms 1040, U.S. Individual Income Tax Return, section 6501(a) mandates that the Commissioner must have assessed the section 4973 liability, or sent a notice of deficiency, prior to the expiration of the six-year period. See Blak Invs. v. Commissioner, 133 T.C. 431, 435 (2009). The Commissioner failed to do so. Accordingly, petitioner’s Motion for Partial Summary Judgment should be granted. “[F]or where, as here, the st atute’s language is plain, ‘the sole function of the courts is to enforce it according to its terms’” —not ours. See United

⁴⁴ States v. Ron Pair Enters., Inc. , 489 U.S. 235, 241 (1989) (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). MARSHALL, J. , agrees with this dissent.