In Uncategorized on 01/23/2012 at 16:52

No Tax Court decisions released today (1/23/12), and only one more football game before withdrawal sets in, so to take my mind off football withdrawal symptoms (and even though Eli Manning didn’t run Judge Kroupa’s beautifully-diagrammed play from Scott A. and Audrey R. Blum, 2012 T.C. 16, filed 1/17/12; see my blogpost “OPIS Finis”, 1/18/12), I have to write about something.

So here’s an Order, certainly not for citation or reliance as authority, but an interesting view of a busted play. This involves Khadija Duma, Docket No. 11042-07, filed 1/23/12. Khadija was a FNMA (Fannie Mae) employee who had problems declaring what income she received. Judge Gustafson dealt with this in 2009 T.C. Mem. 304, filed 12/23/09, finding Khadija owed substantial tax, interest and penalties and sending her off for a Rule 155 bean-count.

Of course Khadija submitted nothing. So Judge Gustafson told her to submit or file a status report. The day before Khadija’s papers were due, Khadija filed a document she styled “Petitioner’s Motion for an Enlargement of Time to Locate Material Documents, or in the Alternative, Petitioner’s Notice of Appeal of This Court’s Order in Favor of the Internal Revenue”.

Judge Gustafson takes up the story: “… the Court denied the motion to the extent that it sought an enlargement of time; and as to the alternative “Notice of Appeal”, the order stated:

“‘Ms. Duma’s alternative–a notice of appeal–is premature, because a decision (stating the amount of the deficiency) has not yet been entered.” Order, p. 2. But the denial was without prejudice to renew when the decision was entered.

Judge Gustafson also politely told Khadija to stop stalling and do the numbers. But the copy of his order mailed to Khadija was returned as “Undeliverable”. Meantime, IRS presented their numbers, and the decision was duly entered. This time, the copy of the decision mailed to Khadija wasn’t returned.

The 90-days-to-appeal had run, when Khadija filed yet another motion in Tax Court, asking to proceed in forma pauperis with an appeal to the DC Circuit, where an appeal would lie (assuming it was timely). Federal Rules of Appellate Practice (FRAP) allow forma paups, but the application must go to the Court of Appeals and it must be timely (FRAP 24). And so must be the notice of appeal.

Khadija’s sad story: “‘I did not receive the order from this court regarding my case in this court which was returned because the post office claimed non-payment. I did not find out that the box had been closed for sometime until I went in to claim my mail. I disputed the post office claim of non-payment to no avail, and I had no way of finding out how much mail had been returned. Today the records office gave me the details of the order issued by Judge Gustafson (which was not delivered to me). I had already filed a notice of appeal, but I don’t know that it is effective now.’” Order, p. 2-3.

All is not lost, Khadija. Judge Gustafson: “Under FRAP 4 (a) (2), as amended in 1979, a premature notice of appeal filed after a district court issues its opinion but before it enters judgment will be treated as timely; but FRAP 14 makes FRAP 4 inapplicable to appeals of Tax Court cases. However, even before and apart from the 1979 amendment of Rule 4 (a), ‘premature notices of appeal have sometimes been given effect in both criminal and civil cases to avoid injustice. E.g., Lemke v. United States, 346 U.S. 325, 74 S.Ct. 1, 98 L.Ed. 3 (1953).’ Feistman v. Commissioner, 587 F.2d 941, 942 (9th Cir. 1978). See also the Advisory Notes to the 1979 Amendment to FRAP 4 (a) (2) (‘Despite the absence of such a provision in Rule 4 (a) the courts of appeals quite generally have held premature appeals effective’) (citations omitted).” Order, pp. 3-4.

However, the question of timeliness or otherwise is for the DC Circuit, not for the humble Tax Court. Still, Judge Gustafson the Merciful gives Khadija a boost: “Pending before us now is the question of how to characterize Ms. Duma’s recent filing. We construe it to be in part a notice of appeal. See Feistman v. Commissioner, 587 F.2d at 942 (‘We treat taxpayers’ request to transmit the record to this court as a notice of appeal: taxpayers are proceeding Pro se [sic], and their request clearly evinced an intent to appeal. Under such circumstances, we construe an appellant’s filing liberally’). As a notice of appeal her recent filing would appear to be untimely; but, again, it will be for the Court of Appeals to decide the timeliness of her appeal. We simply discern that the recent filing ‘clearly evinced an intent to appeal’, as in Feistman.” Order, p. 4.

So Judge Gustafson denies the forma paup motion, again without prejudice, and directs the Clerk to file Khadija’s latest as a notice of appeal.

Takeaway- Even though a late notice of appeal will probably not get much sympathy, it might be worth a try. Of course, if a tax professional takes that tack, I dare say the late notice will evoke even less sympathy.


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