Attorney-at-Law

“BLOW, BLOW, THOU WINTER WIND” – PART DEUX

In Uncategorized on 08/24/2015 at 18:40

Happy Felix Guralnik might just get his one-day late petition accepted as timely, if Tax Court goes with The Judge With a Heart, STJ Armen, with an assist from the winter wind aforementioned.

It’s Felix Guralnick, Docket No. 4358-15L, filed 8/24/15, a Rule 183 Recommended Findings of Fact and Conclusions of Law.

I didn’t know what that was either, until I looked. Rule 183 lets the small judges of the small court make suggestions to the Big Judges of the small court, to which the parties can object or which the Big Judges can grant or disallow.

STJ Armen suggests that, as Tax Court was closed on the last day for Happy Felix to get his petition to 400 Second Street, NW (which he did next day when the Court was open, by a then-impermissible but later blessed iteration of FedEx) and since Tax Court had no “drop-box,” nor permitted e-filing of petitions, Happy Felix is OK, despite IRS’s objections.

Happy Felix wasn’t happy when Appeals hit him with a NOD off a NFTL. But Happy Felix used FedEx First Overnight, which wasn’t blessed until after he sent in his petition; he should have used Priority Overnight, which was blessed by IRS under the provisions of Section 7502 when Happy Felix sent in his petition.

Practitioners, get the blessed list and tack it up on every wall you can find. And check for updates.

Happy Felix is out, right?

No, the last day was a Sunday, the Monday in this case was a holiday in the District of Columbia, but IRS claims Happy Felix stumbles at the last fence, because Tax Court was closed on the Tuesday because of Winter Storm Octavia. STJ Armen says no.

There is no Tax Court rule about what happens when Tax Court is closed. FRCP 6(a)(3)(A) says when clerks’ offices are closed, for whatever reason, service is complete the next open day not a Saturday, Sunday or legal holiday.

And Section 7503 comes to the rescue, although STJ Armen has to stretch a little to get there, going back to 1926 for Sunday closing language, and 1934 for Saturday closing language, in the reports of the respective revenue acts of those long-ago years.

So Winter Storm Octavia mutates into a legal holiday, and if the Big Judge assigned to this jumpball has a heart, Happy Felix is indeed happy.

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