Attorney-at-Law

TOO SWIFT ARRIVES AS TARDY AS TOO LATE – PART DEUX

In Uncategorized on 01/23/2013 at 15:44

But Maybe Not

See my blogpost “Too Swift Arrives as Tardy as Too Late”, filed 5/9/11.

Putting a new twist on the old saying, Special Trial Judge Lew Carluzzo, the Man With the Great Given Name, has a good Designated Order on a day when Tax Court has nothing else to offer, 1/23/13. This is Kedar Roberts, Docket No. 24505-12SL, filed 1/23/13.

It’s a motion to dismiss the petition as untimely filed–but filed too soon, not too late. IRS issued a NOD saying it was appropriate to file a NFTL on Kedar. Kedar mailed his petition 9/29, but the NOD was dated and mailed 10/3. Apparently Kedar was either psychic, or Appeals told him he was out of luck. Anyway, Tax Court got Kedar’s petition 10/3.

Generally, says STJ Lew, IRS is right. There must be a NOD before there can be a petition, but here there was a tie. IRS relies on the “mailed-is-filed” rule in Section 7502 and moves to dismiss. Kedar replies, but his reply doesn’t raise anything but frivolity, so STJ Lew shows Kedar the Section 6673 yellow card.

“As relevant here, section 7502 is applicable if a petition is delivered to the Court after the period prescribed in section 6330(d) expires. If that occurs, then, for jurisdictional purposes and under conditions set forth in the statute, the date that the petition was mailed is treated as the date the petition is filed. That is not the situation here; the petition was not delivered after the period prescribed by section 6330(d) expired. Consequently, section 7502 does not apply. The date that the petition was mailed is not taken into account; the date that the petition was received by the Court and filed controls.” Order, at p. 2.

The NOD was mailed 10/3, and the petition was not received or filed before that date or after the expiry of the statutory limit for filing a petition.

Thus Kedar’s petition, neither too soon nor too late, is timely filed.

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