Attorney-at-Law

“BACKWARD, TURN BACKWARD, O TIME, IN YOUR FLIGHT”  

In Uncategorized on 04/28/2015 at 17:07

Echoing the immortal words of Elizabeth (Akers) Allen, that’s the plaintive cry of Harvey Gregory Ottovich, Docket No. 29083-14L, filed 4/28/15, to Ch J Michael B. (“Iron Mike”) Thornton, but the Ch J will have none of it.

Harvey Gregory’s petition from the NOD he’s attacking is postmarked three days late. Grasping for rescue, Harvey Gregory cites Tax Court Rule 25(a)(2)(C).

Harvey Gregory’s story: “…pursuant to T.C. Rule 25, ‘if any act is required to be taken or completed no later than (or at least) a specified number of days before a date certain, then the earliest day of the period so specified shall not be included if it is a Saturday, Sunday, or a legal holiday … and the earliest such day shall be the next preceding day, which is not a Saturday, Sunday or such legal holiday.’ So the applicable  30-day clock via I.R.C. §6330(d), instead of starting Saturday… (the day after the earliest possible date of mailing) actually started the 30 day clock to run on Monday….” Order, at p. 2.

Most of us lawyers would agree generally (don’t you just love that word?), but that isn’t the rule under Section 6330(d).

Ch J Iron Mike: “…it is readily apparent that Rule 25(a)(2)(C) constitutes a look-back provision that is applicable only when an act or event must be completed a certain number of days before a date certain. Accordingly, Rule 25(a)(2)(C) does not apply to the present case because the statutory period for filing a petition begins with an Appeals Office determination and extends forward in time, not back in time.” Order, at p. 2. (Emphasis in the original).

So the rule is thirty days for petitioning a NOD from the date of the NOD, not from the mailing date of the NOD.

Practitioners, beware!

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