It’s tough to mail your Tax Court petition when you’re a guest of Uncle Samuel, even in a “low-security satellite prison adjacent to the Federal Correction Institution: Jesup (‘FCI Jesup’) in Jesup, Georgia.” That’s the venue for Harsh Sharma, Docket No. 5163-11 L, filed 4/11/14, from the Tax Court connoisseur of Stony Lonesomes, both State and Federal, Judge David Gustafson. See my blogpost “We’ll Come To You”, 9/18/12.

Among Harsh’s other problems, he has about five years’ worth of unpaid taxes, for which IRS hits him with a jeopardy assessment and levy, and a NFTL a few days later. Harsh gets off a couple of Forms 12153 timely, but Appeals issues a NOD rejecting Harsh’s claims.

The NOD correctly states that Harsh has thirty days to petition Tax Court. But Harsh asks for more time, and IRS rejects that in a letter that states, incorrectly, that Harsh has thirty days from the date of that letter to petition. Wrong; the thirty days run from the NOD, not any subsequent billets doux from IRS or anyone else.

We all know, and if we don’t Judge Gustafson is nothing loath to remind us, that erroneous advice from IRS cannot estop IRS. The statute and the regs rule.

And that’s all Judge Gustafson can consider. However, once again his obliging nature shines through.

“An error of this sort is most unfortunate. An agency charged with broad nation-wide responsibility and necessarily staffed by fallible humans can never avoid such errors entirely; but the discovery of such an error should incline the IRS to take action within its discretion to compensate for the error and to provide reasonable remedies for a taxpayer who has been disadvantaged by the agency error.” Order, at p. 5.

In addition, Harsh claims he sent his petition within the thirty days of the NOD by handing it to the Jesup turnkeys. Obviously, if you’re locked up, you can’t just stroll to the Post Office or FedEx. The envelope is marked by the Jesup personnel on a date well after the thirty days has expired. And there’s no other earlier postmark.

Now there is a “prison mailbox” rule. And I bet you were as unaware of it as I am, unless you either practice criminal law or have done time yourself.

The “prison mailbox” rule is codified in the Federal Rules of Appellate Procedure, namely, Rule 4(c)(1) and Rule 25(a)(2)(C). Handing the envelope to the guard, if you can prove you did it, is enough.

But this is poor l’il ole Tax Court, which has no such rule. Unhappily, the Eleventh Circuit, which defers to the decisions of the Fifth Circuit, does not recognize the “prison mailbox” rule in Tax Court cases. And appeal from Judge Gustafson’s opinion must go to Eleventh Circuit. Oh Golsen, what sins are committed in thy name!

And even if Eleventh Circuit did have a “prison mailbox” rule, Harsh has only his unsupported testimony. No affidavits from guards, fellow prisoners or anyone else; and the burden is on Harsh to show he did everything that a prisoner can do to get the petition in on time.

Now the Fifth Circuit decision, which binds the Eleventh Circuit, is more than 50 years old, and has never been examined since rendered. But that doesn’t mean it’s not valid, and anyway Tax Court has no jurisdiction to carve another path for Harsh or anyone else.

So although Judge Gustafson admits the result is inequitable and harsh, the statute bars Harsh’s petition.

Harsh, it might be worth a trip to Eleventh Circuit to see if they’ll have a change of heart. After all, what have you got to lose?

Edited to add, 9/14/21: Harsh did appeal (whether on my advice or not deponent knoweth not), but never perfected.