In Uncategorized on 12/03/2015 at 17:10

The Judge With a Heart, STJ Armen, perplexed by IRS’s apparent walkaway from a winning case, won’t allow IRS to give up the win, in Robert H. Tilden, Docket 11089-15, filed 12/3/15.

You doubtless remember Robert H. Tilden. What, no? Well, check out my blogpost “Stamp Out – Part Deux,” 7/20/15.

Now, recollection refreshed, you recall that Bob’s petition got tossed on jurisdictional grounds, because his “postmark” was belied by the USPS track-and-confirm.

STJ Armen gave IRS the win in 2015 T. C. Memo. 188, filed 9/22/15, which I didn’t blog because it was so obvious. Or so I thought.

Now Bob moves for reconsideration per Rule 161. And IRS doesn’t object. What’s this?

STJ Armen traces this curious history in a footnote.

“Respondent’s [IRS’s] position has evolved over the course of this case. Thus, in his Motion To Dismiss For Lack Of Jurisdiction filed June 8, 2015, respondent argued that the petition was not timely filed, and he relied on USPS Tracking data to demonstrate that the petition was not timely mailed. Then, after petitioner objected to the granting of his motion, respondent argued in his Reply filed July 21, 2015, that the petition did not arrive at the Court in the usual mailing time and that petitioner failed to demonstrate when the petition was actually deposited in the mail, that the delay in the receipt of the petition was due to a delay in the transmission of the mail, and the cause of the delay. See 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs. Now, in response to petitioner’s motion for reconsideration, respondent reverses course and accepts petitioner’s view that the petition was timely mailed and was therefore timely filed.” Order, at p. 2, footnote 2.

As we all know, “The fact that respondent may now have lost confidence in his own motion is of no moment. After all, it is axiomatic that the Tax Court is a court of limited jurisdiction and that it may exercise jurisdiction only to the extent expressly authorized by statute. It is equally axiomatic that jurisdiction cannot be conferred on this Court by agreement of the parties. Indeed, the Court can — and should — question its jurisdiction when there is reason to do so. These principles are not new.” Order, at p. 3.

Even if IRS folds, if your petition is late, you’re out.




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