To a Peaceful Evening
Faithful readers are great; faithful readers who bring to my attention new developments are even greater.
But occasionally I need a break.
Nevertheless, this faithful reader gets a Taishoff “Well Done!” for bringing another slamjam from Seventh Circuit, directed at The Judge With a Heart, STJ Armen.
Y’all remember Robert H. Tilden, of course. What, no? Then see my blogposts “Stamp Out Stamps.com – Part Deux,” 7/20/15; “Yes, We Have No Jurisdiction – Part Deux,” 12/3/15; and “Yes, We Have No Jurisdiction – Maybe,” 6/17/16.
Rob’t’s lawyer used Stamps.com, online postageflogger, but STJ Armen, notwithstanding IRS and Rob’t stipulated that Rob’t petition was timely mailed, bounced Rob’t based on IRS track-and-confirm and the long delay between the alleged date of posting and date of arrival at The Glasshouse at 400 Second Street, NW.
Judge Easterbrook agrees that the explicit language of Section 6213(a) strips Tax Court of jurisdiction when a petition from a SNOD is untimely. Only Congress can change that, and all thine and thine adversary’s piety and wit, and all thy tears, can’t confer jurisdiction upon courts by agreement.
There’s much discussion about how the Supremes dealt with filing deadlines in other statutes, but Section 6213(a) is clear in language and strong in precedent, and Seventh Circuit won’t rewrite both language and history.
“But it does not follow that the Tax Court may disregard the parties’ agreement that a particular petition has been timely filed. True, litigants cannot stipulate to jurisdiction. But they may agree on the facts that determine jurisdiction. For example, if in a suit under the diversity jurisdiction, 28 U.S.C. §1332, the parties agree that the plaintiff is domiciled in Illinois and that the defendant is incorporated in Delaware and has its principal place of business in Texas, a district court need not, indeed must not, look behind that agreement unless the judge suspects that the allegations are collusive. See 28 U.S.C. §1359. The Tax Court did not suspect that Tilden and the Commissioner are colluding to expand its jurisdiction; to the contrary, the Commissioner initially denied that Tilden’s petition was timely. So the judge did not have a sound reason to doubt that the envelope was indeed handed to the Postal Service… as the Commissioner has conceded throughout. And now that the Commissioner has acknowledged that all requirements of (B)(1) have been met—not only deposit on [Day 90] but also that certified mail often takes eight days to reach the Tax Court from Utah—the only basis for dismissing Tilden’s petition would be a legal conclusion that (B)(3) is the sole subsection entitled to a controlling role.
“On that subject we agree with the parties that the Tax Court was mistaken. Part (B)(3) of the regulation specifies what happens if an envelope has both a private postmark and a postmark from the U.S. Postal Service. Tilden’s envelope had only one postmark. The regulation does not ask whether a date that is not a ‘postmark’ is as good as a postmark. It asks whether there are competing postmarks.
“To say ‘A is as good as B” is not remotely to show that A is B. ‘Vanilla ice cream is as good as chocolate’ does not mean that a customer who orders chocolate must accept vanilla, just because the customer likes both. They are still different. Subsection (B)(3) does not make anything turn on a date as reliable as an official postmark. It makes the outcome turn on the date of an official postmark.” 15-3838, at pp. 6-7 (Emphasis by the Court; Citations omitted).
USPS never claimed track-and-confirm was the same as a postmark.
OK, so Section 6213(a) is jurisdictional, but maybe the parties can stipulate timely mailing absent contrary proof or collusion, at least in Seventh Circuit.
But there’s a takeaway for the practitioner here, and Judge Easterbrook nails it.
“Although the taxpayer thus prevails on this appeal, we have to express astonishment that a law firm… would wait until the last possible day and then mail an envelope without an official postmark. A petition for review is not a complicated document; it could have been mailed with time to spare. And if the last day turned out to be the only possible day (perhaps the firm was not engaged by the client until the time had almost run), why use a private postmark when an official one would have prevented any controversy? A member of the firm’s staff could have walked the envelope to a post office and asked for hand cancellation. The regulation gives taxpayers another foolproof option by providing that the time stamp of a private delivery service, such as FedEx or UPS, is conclusive. 26 C.F.R. §301.7502–1(c)(3). [Law firm] was taking an unnecessary risk with Tilden’s money (and its own, in the malpractice claim sure to follow if we had agreed with the Tax Court) by waiting until the last day and then not getting an official postmark or using a delivery service.” 15-3838, at p. 8.
Judge, it’s not every service UPS or FedEx offers that qualifies for Section 7502 largesse. I can’t count the number of petitions thrown out because the petitioner did not use one of the blessed communion, fellowship divine.