Commissioner v. Zuch

Summary

The United States Tax Court lacks jurisdiction under 26 U. S. C. §6330 to resolve disputes between a taxpayer and the Internal Revenue Service when the IRS is no longer pursuing a levy.

Text

PRELIMINARY PRINT 
Volume 605 U. S. Part 2 
Pages 422–442 
OFFICIAL REPORTS 
OF 
THE SUPREME COURT 
June 12, 2025 
REBECCA A. WOMELDORF 
reporter of decisions 
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422 OCTOBER TERM, 2024 
Syllabus 
COMMISSIONER OF INTERNAL REVENUE v. ZUCH 
certiorari to the united states court of appeals for 
the third circuit 
No. 24–416. Argued April 22, 2025—Decided June 12, 2025 
This case involves the jurisdiction of the United States Tax Court over 
appeals from collection due process hearings when there is no longer an 
ongoing levy. The dispute here began in 2012, when Jennifer Zuch and 
her then-husband Patrick Gennardo each fled an untimely 2010 federal 
tax return. Gennardo subsequently submitted an offer in compromise 
to resolve outstanding tax liabilities. This offer implicated $50,000 in 
estimated tax payments that the couple had previously sent to the IRS; 
following the offer, the IRS applied these payments to Gennardo's ac-
count. For her part, Zuch later amended her 2010 tax return to report 
additional income, which resulted in an additional $28,000 in taxes due. 
But Zuch maintained that the IRS should have credited the couple's 
$50,000 payment to her account, entitling her to a $22,000 refund. The 
IRS disagreed and sought to collect her unpaid taxes by placing a levy 
on her property pursuant to its authority under 26 U. S. C. § 6331(a). 
Zuch requested a collection due process hearing to contest the levy. 
The appeals offcer rejected Zuch's argument about the misapplied 
$50,000 tax payment and issued a Notice of Determination sustaining 
the levy action under § 6330(c)(3). Zuch then appealed to the Tax Court 
under § 6330(d)(1). During the multi-year proceedings before the 
agency and the Tax Court that followed, Zuch fled several annual tax 
returns showing overpayments. Each time, the IRS applied these 
overpayments to her outstanding 2010 tax liability rather than issuing 
refunds. Once Zuch's liability reached zero, the IRS moved to dismiss 
the Tax Court proceeding as moot, arguing that the Tax Court lacked 
jurisdiction because the IRS no longer had a basis to levy on Zuch's 
property. The Tax Court agreed. But on appeal, the Third Circuit 
vacated the dismissal, holding that the IRS's abandonment of the levy 
did not moot the Tax Court proceedings. 
Held: The Tax Court lacks jurisdiction under § 6330 to resolve disputes 
between a taxpayer and the IRS when the IRS is no longer pursuing a 
levy. Pp. 428–432. 
(a) “The Tax Court is a court of limited jurisdiction.” Commissioner 
v. McCoy, 484 U. S. 3, 7 (per curiam ). Section 6330(d)(1) grants the Tax 
Court jurisdiction to “review” an appeals offcer's “determination” in a 
collection due process hearing. The scope of the “determination” deter-
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Syllabus 
mines what the Tax Court has jurisdiction to review. The Court agrees 
with the Government that “determination” refers to the binary decision 
whether a levy may proceed. Section 6330(c)(3) requires the appeals 
offcer to consider three things when making this “determination,” in-
cluding “issues raised” by the taxpayer. The statute thus distinguishes 
between “consideration[s]” that inform the “determination” and the “de-
termination” itself. Here, Zuch's dispute about estimated tax payments 
was an input into the “determination”—an “issu[e] raised” that the ap-
peals offcer was required to consider under § 6330(c)(3)(B). The “deter-
mination,” by contrast, was just the appeals offcer's decision to sustain 
the levy. 
Statutory context also supports the Government's position on the lim-
ited scope of the Tax Court's jurisdiction under § 6330(d)(1). When a 
taxpayer wants to contest tax liability, the default rule requires taxpay-
ers to frst pay the disputed tax before pursuing a challenge. § 7421(a). 
Had the IRS simply offset Zuch's overpayments without pursuing a levy, 
her only recourse would have been a refund suit in line with the default 
rule. The IRS's proposed levy triggered Zuch's right to a collection 
due process hearing under § 6330(a)(1), but § 6330—titled “Notice and 
opportunity for hearing before levy”—focuses just on the proposed levy. 
The hearing's scope tracks its purpose: taxpayers may raise only levy-
related issues. See § 6330(c)(2)(A) (“any relevant issue relating to the 
unpaid tax or the proposed levy”); § 6330(c)(2)(B) (“challenges to the ex-
istence or amount of the underlying tax liability” (emphasis added)). 
Given § 6330's unwavering focus on levies and the default rule requiring 
postpayment suits, it would be strange if a taxpayer could use a § 6330 
appeal to resolve tax disputes that no longer have any connection to an 
ongoing levy. 
Finally, the Court doubts the Tax Court has authority under § 6330(e) 
to provide relief beyond enjoining a levy. Nothing in § 6330(e)(1) au-
thorizes the Tax Court to order refunds or to issue declaratory judg-
ments resolving tax liability disputes. While Zuch argues that author-
ity to enjoin a levy necessarily includes the ability to declare the validity 
of underlying tax obligations, the Tax Court's authority to render such 
conclusions depends on the levy's existence. Pp. 428–431. 
(b) The Tax Court properly dismissed Zuch's appeal. The appeals 
offcer issued a “determination” that the IRS's proposed levy could pro-
ceed. The Tax Court had jurisdiction to review that determination— 
to decide whether the levy could (or could not) go forward. As part of 
that review, the Tax Court initially had authority to determine whether 
the appeals offcer's predicate conclusions—like whether the $50,000 
should have been credited exclusively to Gennardo—were correct. But 
once Zuch no longer owed unpaid taxes, there was no basis for a levy

424 COMMISSIONER v. ZUCH 
Opinion of the Court 
and thus no relevant “determination” to review. The Tax Court lacked 
jurisdiction to opine on disputed tax liability independent of any ongoing 
collection effort. Zuch's recourse for alleged tax overpayments is to 
fle a refund suit, see 28 U. S. C. §§ 1346(a)(1), 1491(a)(1), which she has 
already done. Pp. 431–432. 
97 F. 4th 81, reversed and remanded. 
Barrett, J., delivered the opinion of the Court, in which Roberts, 
C. J., and Thomas, Alito, Sotomayor, Kagan, Kavanaugh, and Jack-
son, JJ., joined. Gorsuch, J., fled a dissenting opinion, post, p. 432. 
Erica L. Ross argued the cause for petitioner. With her 
on the briefs were Solicitor General Sauer , Acting Solicitor 
General Harris, Deputy Assistant Attorney General Hub-
bert, Deputy Solicitor General Gannon, Francesca Ugolini, 
Jennifer M. Rubin, and Julie Ciamporcero Avetta. 
Shay Dvoretzky argued the cause for respondent. With 
him on the brief were Parker Rider-Longmaid, Armando 
Gomez, Sylvia O. Tsakos, Hanaa Khan, Raza Rasheed, and 
Frank Agostino.* 
Justice Barrett delivered the opinion of the Court. 
The Tax Code authorizes the Internal Revenue Service 
to levy on—in other words, to seize and sell—a taxpayer's 
property to collect unpaid taxes. 26 U. S. C. § 6331(a). Be-
fore a levy goes forward, however, the taxpayer has the right 
to a hearing at which she can dispute issues relating to the 
levy. §§ 6330(a)–(b). At the hearing, an appeals offcer con-
siders the taxpayer's arguments and renders a “determina-
tion” about whether the levy can proceed. § 6330(c)(3). If 
the appeals offcer sustains the levy, the taxpayer can seek 
review in the United States Tax Court. § 6330(d)(1). 
*Briefs of amici curiae urging affrmance were fled for the Center for 
Taxpayer Rights by Audrey Patten; for the Chamber of Commerce of the 
United States of America by Lauren Willard Zehmer; for the National 
Taxpayers Union Foundation et al. by Joseph D. Henchman; and for A. 
Lavar Taylor, pro se. 
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This case presents a procedural twist. While Jennifer 
Zuch's appeal was pending before the Tax Court, she over-
paid her taxes—and the IRS applied those overpayments 
against her alleged tax liability, thereby eliminating any jus-
tifcation for a levy. Yet Zuch wanted the appeal to con-
tinue. She still disputed the debt that prompted the levy, 
and she hoped that a victory before the Tax Court would 
force the IRS to refund her overpayments. We must decide 
whether the Tax Court had jurisdiction to hear Zuch's appeal 
once the possibility of a levy was off the table. It did not. 
I 
A 
The typical way to dispute a tax liability is to pay frst 
and then seek a refund. 26 U. S. C. § 7421(a) (barring most 
“suit[s] for the purpose of restraining the assessment or col-
lection of any tax”); see also 28 U. S. C. § 2201(a) (barring 
declaratory judgments in actions “with respect to Federal 
taxes”). In certain circumstances, however, Congress has 
given taxpayers the option of prepayment judicial review. 
A levy is one such exception. When a taxpayer who is “lia-
ble to pay [a] tax neglects or refuses to pay the same,” the 
IRS may “levy upon all property and rights to property” 
belonging to the taxpayer. 26 U. S. C. § 6331(a). But be-
cause the seizure and sale of property has serious conse-
quences for the taxpayer, see § 6331(b), Congress requires 
the IRS to give the taxpayer an opportunity to request a 
hearing before the levy is made, §§ 6330(a)–(b), (e)(1). In the 
tax world, this is called a “collection due process hearing.” 
An appeals offcer in the IRS Independent Offce of Ap-
peals conducts the collection due process hearing. 
§ 6330(b)(3). At it, the taxpayer “may raise . . . any relevant 
issue relating to the unpaid tax or the proposed levy,” such 
as “appropriate spousal defenses,” “challenges to the appro-
priateness of collection actions,” or “offers of collection alter-
natives.” § 6330(c)(2)(A). The taxpayer “may also raise at 
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426 COMMISSIONER v. ZUCH 
Opinion of the Court 
the hearing challenges to the existence or amount of the un-
derlying tax liability” if the taxpayer did not previously have 
an opportunity to dispute the tax liability. § 6330(c)(2)(B). 
The appeals offcer then makes a “determination,” which 
“shall take into consideration” various factors, including “the 
issues raised” by the taxpayer. § 6330(c)(3). 
Within 30 days of the appeals offcer's determination, the 
taxpayer may “petition the Tax Court for review of such de-
termination.” § 6330(d)(1). The decision of the Tax Court 
is reviewable in the federal courts of appeals. § 7482(a). 
B 
In the fall of 2012, Jennifer Zuch and her then-husband 
Patrick Gennardo separately fled untimely 2010 federal in-
come tax returns. Zuch's return reported no outstanding 
tax obligations, but Gennardo's refected a substantial bal-
ance due. To resolve this balance, as well as other outstand-
ing tax liabilities, Gennardo submitted an offer in com-
promise to the IRS. See § 7122(a). This offer implicated 
estimated tax payments—totaling $50,000—that the couple 
had already sent to the IRS. After Gennardo submitted his 
offer, the IRS applied these payments to his account as a 
married-fling-separate taxpayer, thereby settling his debt. 
A few weeks later, Zuch fled an amended 2010 tax return 
that reported an additional $71,000 in income from a retire-
ment distribution, generating almost $28,000 in tax liability. 
But Zuch also claimed that the $50,000 in estimated tax pay-
ments should be credited to her account, entitling her to a 
net refund of about $22,000. 
The IRS disagreed. Because it had already allocated the 
$50,000 to Gennardo, it refused to apply the estimated pay-
ments to Zuch. Instead, the IRS informed her that it in-
tended to levy on her property to collect what it deemed to 
be unpaid taxes. Zuch requested a collection due process 
hearing, at which she asserted that the IRS should have 
credited the estimated tax payments to her account. The 
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appeals offcer rejected her argument and sent Zuch a Notice 
of Determination sustaining the levy action. Zuch then ap-
pealed to the Tax Court, which remanded the case back to 
the Offce of Appeals for further factual development. The 
Offce sustained the levy, and proceedings resumed in the 
Tax Court. 
The process spanned several years, and on multiple occa-
sions during this period, Zuch fled an income tax return 
reporting an overpayment that entitled her to a refund. 
But each time, instead of issuing a refund, the IRS credited 
the overpayment against Zuch's supposedly outstanding 2010 
tax liability. See § 6402(a) (authorizing the Secretary to 
“credit the amount of [any] overpayment . . . against any 
liability in respect of an internal revenue tax on the part of 
the person who made the overpayment”). As these credits 
accumulated, Zuch gradually paid down the balance, and 
when it hit zero, the IRS moved to dismiss the Tax Court 
proceeding as moot. Because Zuch no longer owed any 
money, there was no longer any justifcation for a levy on 
her property. Thus, the IRS argued, the Tax Court lacked 
jurisdiction over the appeal from the collection due process 
hearing. (After all, the proposed levy was the hearing's rai-
son d'être.) The Tax Court agreed, concluding that it had 
no freestanding “jurisdiction to determine an overpayment 
or to order a refund or credit of tax paid in a section 6330 
proceeding.” App. to Pet. for Cert. 43a. So if Zuch wanted 
to recover her overpayments—which would require her to 
prevail in her long-running dispute with the IRS about her 
2010 tax liability—she would have to initiate a refund action. 
In short, she would have to start over. 
Frustrated, Zuch appealed to the Third Circuit, which va-
cated the Tax Court's dismissal and held that the IRS's deci-
sion not to pursue the levy did not moot the Tax Court 
proceedings. 97 F. 4th 81, 86 (2024). The Third Circuit 
reasoned that § 6330(c)(2)(B) authorizes Zuch to raise “ `chal-
lenges to the existence or amount of the underlying tax lia-
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428 COMMISSIONER v. ZUCH 
Opinion of the Court 
bility,' ” and Zuch still disputed the IRS's allocation of the 
$50,000 in estimated tax payments to her ex-husband. Id., 
at 97–98. And in the Third Circuit's view, a declaration by 
the Tax Court in Zuch's favor would not be a dead letter 
because a declaration might be preclusive in a future refund 
proceeding by Zuch against the IRS. Id., at 103–104.
1 So 
while the Tax Court could not itself order the IRS to give 
Zuch a refund, it could enter a declaration that Zuch might 
be able to use to secure one. 
In reaching this conclusion, the Third Circuit acknowl-
edged that it was “part[ing] ways” with the Fourth and D. C. 
Circuits, which have held that the Tax Court lacks jurisdic-
tion over a collection due process proceeding when there is 
no longer an underlying levy. Id., at 98; see McLane v. 
Commissioner, 24 F. 4th 316, 319 (CA4 2022); Willson v. 
Commissioner, 805 F. 3d 316, 321 (CADC 2015). We 
granted certiorari to resolve the split. 604 U. S. 1074 (2025). 
II 
A 
“The Tax Court is a court of limited jurisdiction.” Com-
missioner v. McCoy, 484 U. S. 3, 7 (1987) (per curiam ); see 
also § 7442. The parties agree that the only jurisdiction-
conferring provision applicable here is § 6330(d)(1), which 
states that the Tax Court “shall have jurisdiction” to “re-
view” a “determination” made by an appeals offcer in a col-
lection due process hearing. 
What matters, then, is the scope of a “determination” 
under § 6330(d)(1). As the Government sees it, a “determi-
nation” is simply a decision as to whether a levy may go 
forward; if there is no longer a proposed levy, there is no 
1 The Third Circuit also held that Zuch's claim was not moot on the 
theory that the IRS had unlawfully withheld her refunds and used them 
to offset her tax liability. See 97 F. 4th, at 94–97. Zuch has not defended 
this portion of the Third Circuit's reasoning, so we decline to consider it 
as an alternative ground for affrmance. 
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adverse determination of which the taxpayer may seek re-
view in the Tax Court. By contrast, Zuch argues that a 
“determination” encompasses the appeals offcer's resolution 
of all the issues raised by the taxpayer at the collection due 
process hearing. Here, the appeals offcer concluded that 
the $50,000 in estimated tax payments should be credited to 
Gennardo. The Tax Court can still review that conclusion, 
Zuch insists, even though the IRS abandoned the possible 
levy. And Zuch contends that if the Tax Court agrees with 
her, the IRS would then refund her the amount it had 
withheld. 
We agree with the Government: The “determination” in 
§ 6330(d)(1) refers to the binary decision whether a levy may 
proceed. Section 6330(c)(3), which sets forth the basis for 
an appeals offcer's “determination,” states that it “shall take 
into consideration” three things: (A) a verifcation that the 
IRS has complied with “any applicable law”; (B) the “issues 
raised” by the taxpayer; and (C) whether the levy “balances 
the need for the effcient collection of taxes” against concerns 
that a levy “be no more intrusive than necessary.” The stat-
ute thus distinguishes between “consideration[s]” that in-
form the appeals offcer's “determination” and the “determi-
nation” itself. In other words, the statute speaks in terms 
of inputs (the three considerations articulated in §§ 6330(c) 
(3)(A)–(C)) and an output (the appeals offcer's ultimate “de-
termination”). Here, the dispute about Zuch's estimated tax 
payments was an input into the “determination”: an “issu[e] 
raised” by Zuch that the appeals offcer was required to 
consider. § 6330(c)(3)(B). The “determination” was the ap-
peals offcer's decision upholding the IRS's decision to issue 
a levy.
2 App. to Pet. for Cert. 63a. 
2 The dissent suggests that the Tax Court “may review the full scope of 
a `determination,' including its resolution of a taxpayer's `unpaid tax' or 
her `underlying tax liability.' ” Post, at 438 (opinion of Gorsuch, J.). In 
our view, however, this begs the key question: What is a determination? 
The dissent simply assumes that a determination incorporates the consid-

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430 COMMISSIONER v. ZUCH 
Opinion of the Court 
Statutory context also supports the Government's inter-
pretation. Recall the default rule: Taxpayers cannot chal-
lenge disputes about tax liability without frst paying the 
disputed taxes. § 7421(a). Had the IRS offset Zuch's over-
payments against her tax bill without pursuing a levy, Zuch's 
only option would have been to sue for a refund. She was 
able to depart from the ordinary course only because the IRS 
proposed a levy, which triggered her right to a collection due 
process hearing. See § 6330(a)(1) (“No levy may be made on 
any property or right to property of any person unless the 
Secretary has notifed such person in writing of their right 
to a hearing under this section before such levy is made”). 
So, as one might expect, § 6330 focuses on a proposed levy. 
The provision is titled “Notice and opportunity for hearing 
before levy.” The notice must occur “not less than 30 days 
before the day of the frst levy,” § 6330(a)(2), and must in-
clude information about the levy, such as the statutory provi-
sions “relating to levy and sale of property,” “the procedures 
applicable to the levy and sale of property,” and the “proce-
dures relating to redemption of property and release of liens 
on property,” § 6330(a)(3)(C). The scope of the hearing 
tracks its purpose: The taxpayer may raise only issues that 
pertain to the levy. See § 6330(c)(2)(A) (“any relevant issue 
relating to the unpaid tax or the proposed levy”); 
§ 6330(c)(2)(B) (“challenges to the existence or amount of the 
underlying tax liability” (emphasis added)). Given § 6330's 
unwavering focus on levies and the default rule requiring 
postpayment suits, it would be strange if a taxpayer could 
use a § 6330 appeal to resolve tax disputes that no longer 
have any connection to an ongoing levy. 
Finally, we are skeptical that the Tax Court has authority 
to provide any relief under § 6330(e) that goes beyond an 
order enjoining a levy. Section 6330(e)(1) authorizes the 
Tax Court to “enjoi[n]” “the beginning of a levy or proceed-
erations that inform it. But for the reasons we provide, that view is 
mistaken.

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Opinion of the Court 
ing,” but it may do so “only in respect of the unpaid tax 
or proposed levy to which the determination being appealed 
relates.” The provision does not authorize the Tax Court to 
order a refund or to issue a declaratory judgment that re-
solves disputes about tax liability. Of course, as Zuch notes, 
the authority to issue injunctive relief against a levy neces-
sarily includes the ability to make declarations about the va-
lidity of the tax obligations underlying it. But not when 
there is no levy . Without a levy, the Tax Court has no au-
thority to render such conclusions.
3 
B 
Given these statutory constraints, the Tax Court properly 
dismissed Zuch's appeal. The appeals offcer issued a “de-
termination” that the IRS's proposed levy on Zuch's prop-
erty could go forward. The Tax Court had jurisdiction to 
review that determination—that is, to decide whether the 
levy could (or could not) go forward. As part of that review, 
the Tax Court initially had authority to determine whether 
the appeals offcer's predicate conclusions—like whether the 
$50,000 should have been credited exclusively to Gennardo— 
were correct. 
Once the IRS used Zuch's overpayments to zero out the 
balance she allegedly owed, there was no longer any basis 
for a levy—thus, there was no relevant “determination” for 
the Tax Court to review. At this point, Zuch's appeal 
amounted to a request that the Tax Court issue an opinion 
on a disputed question of tax liability independent of any 
3 The dissent suggests that the Tax Court “could enjoin the IRS from 
pursuing `any action' to seek or retain money from [Zuch] for [the 2010] 
tax year or from making any contrary decision about the matter.” Post, 
at 439 (opinion of Gorsuch, J.). But there is nothing to enjoin, nor could 
there be. Because Zuch satisfed her outstanding tax liability, the IRS 
has no reason to try to “seek” money from Zuch. Ibid. In fact, that is 
the entire reason the IRS dropped its proposed levy. So the dissent's 
suggestion simply underscores why the Tax Court lacks jurisdiction to 
provide Zuch any further relief.

432 COMMISSIONER v. ZUCH 
Gorsuch, J., dissenting 
ongoing collection effort. Because the Tax Court lacked ju-
risdiction to do so, it was right to dismiss the case. 4 
Of course, none of this means that Zuch lacks recourse 
against the IRS. Like any taxpayer, she may fle a postdep-
rivation suit for a refund, see 28 U. S. C. §§ 1346(a)(1), 
1491(a)(1), which she has in fact already done, see Complaint 
in Zuch v. United States, No. 2:25–cv–01900 (D NJ, Mar. 14, 
2025). 
* * * 
Because there was no longer a proposed levy, the Tax 
Court properly concluded that it lacked jurisdiction to re-
solve questions about Zuch's disputed tax liability. The 
judgment of the Third Circuit is reversed, and the case is 
remanded for further proceedings consistent with this 
opinion. 
It is so ordered. 
Justice Gorsuch, dissenting. 
Like many Americans, Jennifer Zuch wound up owing 
money on her taxes. When the Internal Revenue Service 
told her that she had failed to pay all she owed for 2010, her 
(then) husband responded by paying the bill. But instead 
of applying that payment to resolve her liability, the agency 
used the money to satisfy her husband's separate tax debt. 
The agency did so even after Ms. Zuch's husband insisted 
the money was meant for her tab, not his. Then, because it 
4 The parties have briefed the issues here primarily in terms of moot-
ness. It is indeed possible that the IRS's decision not to proceed with a 
levy mooted the proceedings in the Tax Court: If the Tax Court lacks the 
authority to issue the sort of preclusive declaratory judgment that Zuch 
seeks, then Zuch is effectively asking the court for an advisory opinion. 
And because the Tax Court applies principles of Article III jurisdiction 
to itself, this conclusion would have separately warranted dismissal. See 
Battat v. Commissioner, 148 T. C. 32, 46 (2017). We view our decision, 
however, as resting not on mootness but instead on the limits of the Tax 
Court's statutory jurisdiction under 26 U. S. C. § 6330. 
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Gorsuch, J., dissenting 
deemed Ms. Zuch's liability still outstanding, the agency 
sought to seize and sell her property in a levy. 
Ms. Zuch spent more than a decade challenging the IRS's 
moves before the agency and, later, the Tax Court. Finally, 
just as the Tax Court was poised to rule, the IRS moved to 
dismiss Ms. Zuch's case. It did not do so because it admitted 
its mistake in crediting her husband's payment to the wrong 
account. Instead, the agency told the court, it had deter-
mined that Ms. Zuch overpaid her taxes in later years, and 
it had decided to keep (rather than refund) those overpay-
ments to satisfy her (disputed) 2010 debt. So, the IRS con-
tinued, a levy was no longer needed and the court should 
therefore dismiss the case. The Tax Court agreed, reason-
ing that the IRS's decision to drop the levy deprived it of 
jurisdiction over the dispute. See 97 F. 4th 81, 88–91 (CA3 
2024). 
The Court endorses that decision. I would not. Ms. 
Zuch still had a live claim pending before the Tax Court. 
She argued that the IRS erred by failing to credit her hus-
band's payment to her tax debt, so she owed the agency noth-
ing for 2010. Had she prevailed on that claim, the IRS 
would have had no basis for keeping her overpayments in 
later years. Nothing prevented the Tax Court from say-
ing as much. Today's decision holding otherwise leaves 
Ms. Zuch with no meaningful way to pursue her argument 
that the IRS erred or to recoup the overpayments she be-
lieves the IRS has wrongly retained. Along the way, the 
Court's decision hands the IRS a powerful new tool to avoid 
accountability for its mistakes in future cases like this one. 
I 
To see where the Court and I differ, a little background 
helps. As many taxpayers know, the IRS can collect unpaid 
taxes by seizing and selling a taxpayer's property in a levy. 
But, before the agency can take that step, it must afford the 
taxpayer an opportunity to request a hearing before the

434 COMMISSIONER v. ZUCH 
Gorsuch, J., dissenting 
IRS's in-house Offce of Appeals. 26 U. S. C. § 6330(b). At 
the hearing, the taxpayer may raise “any relevant issue re-
lating to the unpaid tax or the proposed levy” and (if she 
hasn't previously had the chance to do so) challenge “the 
existence or amount of [her] underlying tax liability.” 
§ 6330(c)(2). 
After the hearing, the Offce of Appeals issues a “determi-
nation.” § 6330(c)(3). By statute, a “determination by an 
appeals offcer . . . shall take into consideration” various mat-
ters. Ibid. They include whether the IRS has followed all 
“applicable” legal rules, whether a levy is “no more intrusive 
than necessary,” and whether the IRS has explained away 
the “issues raised” by the taxpayer—which, remember, may 
include a challenge to the “unpaid tax” or to the “underlying 
tax liability.” §§ 6330(c)(1)–(3). 
Once the Offce of Appeals issues a “determination,” the 
taxpayer can seek review in the Tax Court—another admin-
istrative tribunal within the Executive Branch. See Part 
III, infra. Section 6330(d)(1) provides that a taxpayer 
“may, within 30 days of a determination under this section, 
petition the Tax Court for review of such determination ( and 
the Tax Court shall have jurisdiction with respect to such 
matter).” (Emphasis added.) If the Tax Court concludes 
that the Offce of Appeals erred, it may “enjoin any action 
or proceeding . . . in respect of the unpaid tax or proposed 
levy to which the determination being appealed relates,” 
§ 6330(e)(1), or else “remand [the] case” to the Offce of Ap-
peals for further proceedings, Internal Revenue Manual 
§ 8.22.9.16(1) (Nov. 13, 2013); see also, e. g., Drake v. Commis-
sioner, 92 TCM 37, 44 (2006). 
II 
Where should all this leave Ms. Zuch? As the above sketch 
illustrates, the Tax Court's jurisdiction over her case hinged 
on the presence of a timely appealed “determination” by the 
Offce of Appeals. Ante, at 426–427, 431. Everyone agrees 
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Gorsuch, J., dissenting 
we have that here. As we have seen, too, a “determination” 
may address whether a taxpayer actually owes any “unpaid 
tax” or has any “underlying tax liability.” §§ 6330(c)(1)–(3). 
Everyone agrees we have that here too, for the “determina-
tion” in Ms. Zuch's case both approved a levy and rejected 
her argument that she had already fully satisfed her 2010 
tax bill thanks to her husband's payment. Brief for Peti-
tioner 9; ante, at 431. 
Those undisputed facts should lead to a straightforward 
conclusion: Because the Tax Court had before it a valid de-
termination, it had jurisdiction to review all the issues ad-
dressed in that determination, including whether the IRS 
was wrong to say Ms. Zuch owed money for 2010. Had the 
Tax Court ruled for Ms. Zuch on that issue, its decision 
would have had other important consequences too, for it 
would have deprived the IRS of its sole justifcation for keep-
ing, rather than refunding, Ms. Zuch's later overpayments. 
The fact that the IRS announced its intention to drop its 
levy is immaterial. Nothing in the statute before us sug-
gests that the IRS can deprive the Tax Court of jurisdiction 
simply by withdrawing a levy. To the contrary, three key 
features of the statutory scheme we have already encoun-
tered preclude that conclusion. 
First, § 6330(d)(1) governs the Tax Court's jurisdiction. It 
provides that the Tax Court “shall have jurisdiction” over 
“such matter”—a phrase that refers back to the Offce of 
Appeals's “determination” in the taxpayer's case under 
§ 6330(c)(3). See Boechler v. Commissioner, 596 U. S. 199, 
204–205 (2022); accord, ante, at 428. That command is manda-
tory, and it nowhere uses the word “levy.” The absence of 
that term is telling, too, given that Congress used it almost 
30 times elsewhere in § 6330. Had Congress wished the Tax 
Court's jurisdiction to rise and fall with a levy, it obviously 
knew how to say so. Congress's decision instead to link ju-
risdiction to a “determination” is one we must respect, not 
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436 COMMISSIONER v. ZUCH 
Gorsuch, J., dissenting 
allow the IRS to rewrite as it pleases. See Feliciano v. De-
partment of Transportation, 605 U. S. 38, 46 (2025). 
Second, § 6330(c)(2) provides that a “determination” may 
address not just an up-or-down decision on a levy but also 
other matters raised before the Offce of Appeals, including 
a taxpayer's claim that she has no “unpaid tax” or “under-
lying tax liability.” And, the statute tells us, resolution 
of those issues forms the “[b]asis” for the determination, 
§ 6330(c), supplying textual evidence that “a determination 
incorporates the considerations that inform it,” contra, ante, 
at 429–430, n. 2. Confrming as much, the Tax Court itself 
has observed that its “jurisdiction is defned by the scope of 
the determination” and, as a result, it may consider “chal-
lenges to the existence or amount of the underlying tax lia-
bility” if “raised by the taxpayer” and resolved by the Offce 
of Appeals. Freije v. Commissioner, 125 T. C. 14, 25 (2005); 
accord, Sego v. Commissioner, 114 T. C. 604, 610 (2000); 26 
CFR § 301.6330–1, A–F3 (2024). As we have seen, the Offce 
of Appeals's determination in this case expressly addressed 
Ms. Zuch's claim that she had no unpaid taxes or underlying 
liability for 2010. 
Third, § 6330(e)(1) grants the Tax Court the power to issue 
injunctions against “any action or proceeding . . . in respect 
of the unpaid tax or proposed levy to which the determina-
tion being appealed relates.” (Emphasis added.) That dis-
junctive phrasing suggests the Tax Court may enjoin “any” 
IRS “action” relating to the “unpaid tax”—even if the action 
is not a “proposed levy.” § 6330(e)(1); see Encino Motor-
cars, LLC v. Navarro, 584 U. S. 79, 87 (2018). Potential IRS 
actions relating to an “unpaid tax” include various “collection 
alternatives,” § 6330(c)(2)(A), and decisions about “whether 
[a tax] liability remains unpaid,” Brief for Petitioner 25, n. 3 
(internal quotation marks omitted; emphasis deleted); see 97 
F. 4th, at 88. Accordingly, had the Tax Court found that Ms. 
Zuch owed nothing for 2010, it could have wielded its reme-
dial authority under § 6330(e)(1) to enjoin the IRS from en-
Page Proof Pending Publication

Cite as: 605 U. S. 422 (2025) 437 
Gorsuch, J., dissenting 
gaging in “any action” to collect that debt. An injunction 
could stop the IRS from asserting its entitlement to retain 
Ms. Zuch's later overpayments. See Part IV , infra.1 
Until recently, even the IRS would have agreed with all 
this. As the IRS once put it, a “motion to dismiss” is “inap-
propriate” in the Tax Court proceedings as long as a tax-
payer (as here) still contests “the existence or amount” of her 
tax liability. Dept. of Treasury, IRS Offce of Chief Counsel, 
Notice CC–2003–016 (May 29, 2003). Nor would it matter, 
the IRS continued, if the taxpayer had already “paid” the 
disputed tax—a development that, pretty plainly, would 
avoid any need for a levy. Ibid.; accord, IRS Notice CC– 
2005–008 (May 19, 2005); 97 F. 4th, at 100–101, and n. 36. 
Now, of course, the IRS has changed its mind and taken just 
the opposite view. But, when the government switches po-
sition and advances a new statutory construction that tilts 
the playing feld in its favor, “no one should be surprised if 
its latest utterance isn't the most convincing one.” Bittner 
v. United States, 598 U. S. 85, 98, n. 5 (2023). 
III 
At the IRS's urging, the Court today upholds the Tax 
Court's dismissal of Ms. Zuch's claims. In doing so, the 
Court embraces the agency's (present) view that the Tax 
Court is powerless to resolve a § 6330 case once the IRS 
abandons a levy. But the three arguments the IRS ad-
vances (and the Court adopts) in support of that conclusion 
do not come close to proving it. 
1 The Court says there is no action left to enjoin in Ms. Zuch's case 
because the IRS already has her money. Ante, at 431, n. 3. But every-
one agrees that Ms. Zuch may still seek a refund for at least some (but 
not all) of the overpayments in later years. Ante, at 432; Part IV , infra. 
And an injunction here could prevent the IRS from taking actions in those 
proceedings asserting its entitlement to the money. Even beyond that, 
there is the possibility that the IRS would heed the Tax Court's view of 
Ms. Zuch's case and refund all her later overpayments. Part III, infra. 
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438 COMMISSIONER v. ZUCH 
Gorsuch, J., dissenting 
The IRS frst posits that the word “determination” in 
§ 6330(d)(1) “refers to the binary decision whether a levy may 
proceed.” Ante, at 429; Brief for Petitioner 19. So when 
the Offce of Appeals issues a “determination,” the IRS says, 
that offce simply decides whether a levy is appropriate. 
And given that, the IRS extrapolates, the Tax Court's juris-
diction must also be limited to assessing the propriety of a 
levy. See id., at 19–21. 
The statute the IRS imagines is not the statute we have. 
Congress did not say that a “determination” refers to a bi-
nary decision whether a levy may proceed. Instead, Con-
gress said that the Tax Court may review the full scope of 
a “determination,” including its resolution of a taxpayer's 
“unpaid tax” or her “underlying tax liability.” §§ 6330(c)(2), 
(d)(1). Congress discussed levies in many other places in 
§ 6330 and it easily could have said that the Tax Court may 
review only a “determination whether the levy may go for-
ward.” Yet nothing like that italicized condition appears in 
Congress's work.
2 
Next, the IRS suggests that the Tax Court's jurisdiction 
must be limited to assessing levies because the only remedy 
it can issue is an order directing the government “not to 
pursue a levy.” Brief for Petitioner 20. Along similar but 
more restrained lines, the Court expresses “skeptic[ism]” 
2 Seeking a textual hook for its view that a “determination” really means 
a “levy,” the Court observes that a “determination” must be something 
separate from the “considerations” that inform it, like the taxpayer's un-
derlying liability. Ante, at 429. That hardly helps. Of course, a “deter-
mination” is not the same as the issues it resolves. But that does not 
mean the Tax Court is powerless to review the considerations that inform 
a “determination.” Indeed, the Court admits that the Tax Court can at-
tend to such “predicate conclusions” while a levy is ongoing. Ante, at 431. 
So why would things play out differently once the IRS no longer intends 
a levy? As even the government concedes, abandoning a levy does not 
withdraw or vacate an adverse IRS “determination.” Tr. of Oral Arg. 
11–12. 
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Cite as: 605 U. S. 422 (2025) 439 
Gorsuch, J., dissenting 
that the Tax Court's remedial authority extends beyond en-
joining a levy. Ante, at 430–431. 
Whether full-throated or half-hearted, that argument, too, 
disregards the statute's terms. Remember, § 6330(e)(1) per-
mits the Tax Court to enjoin “any action” by the IRS relat-
ing to the “unpaid tax or the proposed levy.” See Part I, 
supra; cf. ante, at 430–431. So, if the Tax Court were to 
conclude that Ms. Zuch is right—that her husband paid her 
bill and she owes nothing for 2010—then it could enjoin the 
IRS from pursuing “any action” to seek or retain money from 
her for that tax year or from making any contrary decision 
about the matter. And, as we have seen, that relief would 
effectively foreclose the agency from asserting any lawful 
entitlement to Ms. Zuch's overpayments in later years. 
The IRS's remedial theory suffers another flaw, too. 
Sometimes, of course, developments during litigation that 
leave an Article III court powerless to issue any binding 
relief can present a jurisdictional problem. The Constitu-
tion, after all, authorizes federal courts to entertain only live 
cases and controversies, not moot ones where it is no longer 
possible “to grant any effectual relief” to the parties. 
Chafn v. Chafn, 568 U. S. 165, 172 (2013). But, as the Court 
seems to recognize, ante, at 432, n. 4, that constitutional con-
straint does not apply to the Tax Court. Name notwith-
standing, that body is not part of the Judicial Branch. In-
stead, it exercises Article II “[e]xecutive authority as part of 
the Executive Branch.” Kuretski v. Commissioner, 755 
F. 3d 929, 932 (CADC 2014).
3 So when the Tax Court ad-
dresses a tax dispute and returns it to the Offce of Appeals, 
3 See also Crim v. Commissioner, 66 F. 4th 999, 1000 (CADC 2023) (hold-
ing that the Tax Court remains “part of the Executive Branch” notwith-
standing a statutory amendment, § 7441, confrming its “indepeden[ce]”); 
Freytag v. Commissioner, 501 U. S. 868, 912 (1991) (Scalia, J., concurring 
in part and concurring in judgment) (“It seems to me entirely obvious that 
the Tax Court, like the Internal Revenue Service, . . . exercises execu-
tive power”). 
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440 COMMISSIONER v. ZUCH 
Gorsuch, J., dissenting 
it is just one executive agency advising another about how 
to enforce federal law in a particular setting. And even 
without an injunction compelling it to do so, the Offce of 
Appeals may choose to follow the Tax Court's views when 
carrying out its duty to resolve “tax controversies . . . to the 
maximum extent possible through an administrative settle-
ment.” Internal Revenue Manual § 8.1.1.1.1 (Jan. 9, 2024). 
For taxpayers like Ms. Zuch, that may be all the relief they 
need. 
Without statutory text on its side, the IRS resorts to legis-
lative history. Citing a committee report, the agency con-
tends that Congress meant for § 6330 proceedings in the Tax 
Court to be rare and few, and for most “[c]hallenges to the 
assessment of a tax” to be brought in “post-payment refund 
suits” or “pre-payment defciency actions” in federal district 
court. Brief for Petitioner 23 (citing S. Rep. No. 105–174 
(1998)); see ante, at 430. That background rule, the IRS 
says, counsels against reading § 6330 to allow the Tax Court 
to entertain disputes after the government abandons a 
levy. 
But even if refund suits and defciency actions were once 
the usual ways for individuals to contest their tax liabilities, 
nobody disputes that Congress afforded taxpayers a new 
way of doing so when it adopted § 6330. And taxpayers are 
entitled to expect that provision will be applied as written, 
not whittled down to a nub to suit the IRS. See Feliciano, 
605 U. S., at 54; Epic Systems Corp . v. Lewis, 584 U. S. 497, 
525 (2018). 
IV 
Recognizing that today's decision leaves Ms. Zuch, after a 
decade of litigation, without resolution of her straightfor-
ward argument that the IRS erred when it concluded she 
had not paid her 2010 tax bill, the agency invites her to “start 
over.” Ante, at 427. All she has to do, the IRS says, is fle 
a new refund suit in federal district court. There, she can 
make all the arguments she sought to press in the Tax Court. 
Page Proof Pending Publication

Page Proof Pending Publication
Cite as: 605 U. S. 422 (2025) 441 
Gorsuch, J., dissenting 
And, if she prevails, she can secure a refund of the overpay-
ments the agency kept to satisfy her (disputed) 2010 debt. 
See Brief for Petitioner 15, 34; ante, at 432. But that is no 
answer. More nearly, it is a trap for the unwary. 
The reason has to do with a statutory deadline. Taxpay-
ers may not pursue refund suits until they have fled admin-
istrative claims with the IRS, something they must accom-
plish “within 3 years from the time the return was fled or 2 
years from the time the tax was paid,” whichever period 
ends later. § 6511(a). Yet a taxpayer who chooses to con-
test her tax liability in § 6330 proceedings may not know that 
she needs to fle such an administrative claim until the time 
for doing so has passed. See Brief for Center for Taxpayer 
Rights as Amicus Curiae 19–21.
4 
Ms. Zuch's case illustrates the problem. The government 
deemed her 2010 tax debt “paid” when it kept overpayments 
she made in 2013–2016 and 2019. 97 F. 4th, at 91. To seek 
the return of those overpayments, Ms. Zuch needed to sub-
mit an administrative claim with the IRS within two years 
of when the agency kept each payment. § 6511(a). Yet for 
a couple reasons, she did not know that she had any need to 
fle a claim. See 97 F. 4th, at 91. For one, she was actively 
litigating § 6330 proceedings and understandably thought 
that was suffcient unto the day. For another, it appears the 
government did not tell her that she had overpaid her taxes 
in 2013–2016 and 2019, or that it intended to use those over-
payments to satisfy her (disputed) 2010 tax liability, until it 
moved to dismiss her case in the Tax Court. 97 F. 4th, at 
91, n. 19. Consequently, Ms. Zuch had no reason to think 
administrative refund claims might be necessary, or even 
available, until that point. And by the time she fled a re-
4 Though § 6330(e)(1) automatically suspends the limitations period for 
fling a refund suit in district court during the pendency of Tax Court 
proceedings, the government contends that it does not automatically sus-
pend the period for fling an administrative claim. See Tr. of Oral Arg. 
24–25, 28; accord, id., at 44–45.

Page Proof Pending Publication
442 COMMISSIONER v. ZUCH 
Gorsuch, J., dissenting 
fund suit in district court, it was too late for her to submit 
prerequisite administrative claims for some (but not all) of 
the years in question and thus too late for the court to adju-
dicate her entitlement to refunds for those years. See Tr. 
of Oral Arg. 28, 44–45. So the IRS's invitation for Ms. Zuch 
to “start over” really turns out to be little more than an 
effort to deprive her of complete relief. 
* 
The short of it all is this. The IRS seeks, and the Court 
endorses, a view of the law that gives that agency a roadmap 
for evading Tax Court review and never having to answer a 
taxpayer's complaint that it has made a mistake. After 
today, § 6330 proceedings are essentially risk-free for the 
IRS. It may pursue a levy and argue its case to the Tax 
Court. Then, if the Tax Court seems likely to side with the 
taxpayer, the IRS can drop the levy and avoid an unfavorable 
ruling on the taxpayer's underlying tax liability. Doing so 
will often prove only a small setback for the IRS because the 
agency remains free to pursue other collection methods— 
including keeping, rather than refunding, a taxpayer's later 
overpayments. And the taxpayer will often fnd herself 
without any way to challenge the IRS's error or prevent the 
agency from keeping more of her money than it is lawfully 
due. Seeing nothing in the law compelling any of those re-
sults, I respectfully dissent.

Page Proof Pending Publication
Reporter’s Note 
The attached opinion has been revised to refect the usual publication 
and citation style of the United States Reports. The revised pagination 
makes available the offcial United States Reports citation in advance of 
publication. The syllabus has been prepared by the Reporter of Decisions 
for the convenience of the reader and constitutes no part of the opinion of 
the Court. A list of counsel who argued or fled briefs in this case, and 
who were members of the bar of this Court at the time this case was 
argued, has been inserted following the syllabus. Other revisions may 
include adjustments to formatting, captions, citation form, and any errant 
punctuation. The following additional edits were made: 
None

Retrieval chunks

• #1

  PRELIMINARY PRINT Volume 605 U. S. Part 2 Pages 422–442 OFFICIAL REPORTS OF THE SUPREME COURT June 12, 2025 REBECCA A. WOMELDORF reporter of decisions Page Proof Pending Publication NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to noti…

• #2

  property. The Tax Court agreed. But on appeal, the Third Circuit vacated the dismissal, holding that the IRS's abandonment of the levy did not moot the Tax Court proceedings. Held: The Tax Court lacks jurisdiction under § 6330 to resolve disputes between a taxpayer and the IRS when the IRS is no longer pursuing a …

• #3

  postpayment suits, it would be strange if a taxpayer could use a § 6330 appeal to resolve tax disputes that no longer have any connection to an ongoing levy. Finally, the Court doubts the Tax Court has authority under § 6330(e) to provide relief beyond enjoining a levy. Nothing in § 6330(e)(1) au- thorizes the Ta…

• #4

  property to collect unpaid taxes. 26 U. S. C. § 6331(a). Be- fore a levy goes forward, however, the taxpayer has the right to a hearing at which she can dispute issues relating to the levy. §§ 6330(a)–(b). At the hearing, an appeals offcer con- siders the taxpayer's arguments and renders a “determina- tion” about…

• #5

  peals conducts the collection due process hearing. § 6330(b)(3). At it, the taxpayer “may raise . . . any relevant issue relating to the unpaid tax or the proposed levy,” such as “appropriate spousal defenses,” “challenges to the appro- priateness of collection actions,” or “offers of collection alter- natives.” …

• #6

  Cite as: 605 U. S. 422 (2025) 427 Opinion of the Court appeals offcer rejected her argument and sent Zuch a Notice of Determination sustaining the levy action. Zuch then ap- pealed to the Tax Court, which remanded the case back to the Offce of Appeals for further factual development. The Offce sustained the levy…

• #7

  because a declaration might be preclusive in a future refund proceeding by Zuch against the IRS. Id., at 103–104. 1 So while the Tax Court could not itself order the IRS to give Zuch a refund, it could enter a declaration that Zuch might be able to use to secure one. In reaching this conclusion, the Third Circui…

• #8

  § 6330(d)(1) refers to the binary decision whether a levy may proceed. Section 6330(c)(3), which sets forth the basis for an appeals offcer's “determination,” states that it “shall take into consideration” three things: (A) a verifcation that the IRS has complied with “any applicable law”; (B) the “issues raised”…

• #9

  before levy.” The notice must occur “not less than 30 days before the day of the frst levy,” § 6330(a)(2), and must in- clude information about the levy, such as the statutory provi- sions “relating to levy and sale of property,” “the procedures applicable to the levy and sale of property,” and the “proce- dures …

• #10

  were correct. Once the IRS used Zuch's overpayments to zero out the balance she allegedly owed, there was no longer any basis for a levy—thus, there was no relevant “determination” for the Tax Court to review. At this point, Zuch's appeal amounted to a request that the Tax Court issue an opinion on a disputed qu…

• #11

  authority to issue the sort of preclusive declaratory judgment that Zuch seeks, then Zuch is effectively asking the court for an advisory opinion. And because the Tax Court applies principles of Article III jurisdiction to itself, this conclusion would have separately warranted dismissal. See Battat v. Commissione…

• #12

  But, before the agency can take that step, it must afford the taxpayer an opportunity to request a hearing before the 434 COMMISSIONER v. ZUCH Gorsuch, J., dissenting IRS's in-house Offce of Appeals. 26 U. S. C. § 6330(b). At the hearing, the taxpayer may raise “any relevant issue re- lating to the unpaid tax or…

• #13

  tion” in Ms. Zuch's case both approved a levy and rejected her argument that she had already fully satisfed her 2010 tax bill thanks to her husband's payment. Brief for Peti- tioner 9; ante, at 431. Those undisputed facts should lead to a straightforward conclusion: Because the Tax Court had before it a valid de-…

• #14

  at 429–430, n. 2. Confrming as much, the Tax Court itself has observed that its “jurisdiction is defned by the scope of the determination” and, as a result, it may consider “chal- lenges to the existence or amount of the underlying tax lia- bility” if “raised by the taxpayer” and resolved by the Offce of Appeals.…

• #15

  the opposite view. But, when the government switches po- sition and advances a new statutory construction that tilts the playing feld in its favor, “no one should be surprised if its latest utterance isn't the most convincing one.” Bittner v. United States, 598 U. S. 85, 98, n. 5 (2023). III At the IRS's urging,…

• #16

  must be limited to assessing levies because the only remedy it can issue is an order directing the government “not to pursue a levy.” Brief for Petitioner 20. Along similar but more restrained lines, the Court expresses “skeptic[ism]” 2 Seeking a textual hook for its view that a “determination” really means a “le…

• #17

  straint does not apply to the Tax Court. Name notwith- standing, that body is not part of the Judicial Branch. In- stead, it exercises Article II “[e]xecutive authority as part of the Executive Branch.” Kuretski v. Commissioner, 755 F. 3d 929, 932 (CADC 2014). 3 So when the Tax Court ad- dresses a tax dispute an…

• #18

  decade of litigation, without resolution of her straightfor- ward argument that the IRS erred when it concluded she had not paid her 2010 tax bill, the agency invites her to “start over.” Ante, at 427. All she has to do, the IRS says, is fle a new refund suit in federal district court. There, she can make all the…

• #19

  proceedings, the government contends that it does not automatically sus- pend the period for fling an administrative claim. See Tr. of Oral Arg. 24–25, 28; accord, id., at 44–45. Page Proof Pending Publication 442 COMMISSIONER v. ZUCH Gorsuch, J., dissenting fund suit in district court, it was too late for her t…