Attorney-at-Law

THE PHONE CALL – FALLS SHORT

In Uncategorized on 05/05/2016 at 15:51

Thomas W. Allibone, 2016 T. C. Memo. 91, filed 5/5/16 follows the trail blazed by the intrepid Kenneth William Kasper (see my blogpost “IRS Loses a Double-Header,” 7/12/11).

Tom blew the whistle, and the St. Cloud Sunseteers (the Minnesota branch of the Ogden eponyms) claim they gave him the usual laundry-list rejection letter six (count ‘em, six) years later.

Tom’s petition gets to IRS 33 days after Tom’s counsel mailed it, so IRS moves to toss.

But here’s the story. The St. Cloudnik has the usual e-Track Claim Action listing form showing he put the bounce letter into the bin, his secretary was around that day, and the usual office practice was to mail it.

Interesting that the e-Track shows the letter was prepared, dated and put in for mailing at 8:13 a.m. on the same day. Maybe the St. Cloud morning glories are up and working at the crack of dawn on six-year-old Form 211s.

Anyway, the St. Cloudnik claims he telephoned Tom’s counsel with the bad news and noted it in the e-Track, but that never shows up at the hearing.

Judge Colvin: “In Kasper we held that the 30-day period for timely filing a petition under section 7623(b)(4) begins on the date of the mailing or personal delivery of the determination notice and that the Commissioner’s submission of indirect evidence such as testimony of habit or standard business practice is insufficient to prove the date of mailing of a final determination letter in a whistleblower case.” 2016 T. C. Memo. 91, at pp. 4-5.

So mailing practice proves nothing.

Phonecalls are even worse.

“We disagree that a phone call establishes that the final determination letter was mailed on May 6.  First, the record is murky regarding the phone call; while the affidavit says precisely when the call occurred and that an e-trak record was created, the e-trak entries attached to the motion do not refer to such a call. Either way it does not matter because at best from respondent’s standpoint, such a phone call would reflect Mr. [St. Cloudnik’s] belief that the final determination letter had been or would be mailed but is not direct evidence of mailing.  We are aware of no authority for the notion that the running of the 30-day period under section 7623(b)(4) commences because of a phone call, and respondent has presented no argument or rationale for such a holding here.” 2016 T. C. Memo. 91, at p. 6 (Citation and name omitted.)

Tweet! Game over.

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