To a Peaceful Evening

Faithful readers are great; faithful readers who bring to my attention new developments are even greater.

But occasionally I need a break.

Nevertheless, this faithful reader gets a Taishoff “Well Done!” for bringing another slamjam from Seventh Circuit, directed at The Judge With a Heart, STJ Armen.

Here’s Robert H. Tilden v. Com’r, 15-3838, decided 1/13/17.

Y’all remember Robert H. Tilden, of course. What, no? Then see my blogposts “Stamp Out Stamps.com – Part Deux,” 7/20/15; “Yes, We Have No Jurisdiction – Part Deux,” 12/3/15; and “Yes, We Have No Jurisdiction – Maybe,” 6/17/16.

Rob’t’s lawyer used Stamps.com, online postageflogger, but STJ Armen, notwithstanding IRS and Rob’t stipulated that Rob’t petition was timely mailed, bounced Rob’t based on IRS track-and-confirm and the long delay between the alleged date of posting and date of arrival at The Glasshouse at 400 Second Street, NW.

Judge Easterbrook agrees that the explicit language of Section 6213(a) strips Tax Court of jurisdiction when a petition from a SNOD is untimely. Only Congress can change that, and all thine and thine adversary’s piety and wit, and all thy tears, can’t confer jurisdiction upon courts by agreement.

There’s much discussion about how the Supremes dealt with filing deadlines in other statutes, but Section 6213(a) is clear in language and strong in precedent, and Seventh Circuit won’t rewrite both language and history.

“But   it   does   not   follow   that   the   Tax   Court   may   disregard   the   parties’   agreement   that  a   particular   petition   has   been   timely   filed.   True,   litigants   cannot   stipulate   to  jurisdiction.   But   they   may   agree   on   the   facts   that   determine   jurisdiction.   For  example,  if  in  a   suit  under  the  diversity  jurisdiction, 28  U.S.C.  §1332,  the  parties   agree   that   the   plaintiff   is   domiciled   in   Illinois   and   that   the   defendant   is   incorporated   in   Delaware   and   has   its   principal place  of  business  in  Texas,  a  district  court  need  not,  indeed   must   not,   look   behind   that   agreement   unless   the   judge   suspects   that   the   allegations   are   collusive.   See   28   U.S.C.   §1359.   The   Tax   Court   did   not   suspect   that   Tilden and the Commissioner  are  colluding  to  expand  its  jurisdiction;  to  the  contrary, the Commissioner  initially  denied  that  Tilden’s  petition   was   timely.   So   the   judge   did   not   have   a   sound   reason   to   doubt   that   the   envelope   was   indeed   handed   to   the   Postal   Service… as the Commissioner  has  conceded throughout.   And   now   that   the   Commissioner has acknowledged that  all  requirements  of  (B)(1) have  been  met—not  only  deposit  on  [Day 90]  but  also  that  certified  mail  often takes   eight  days  to  reach  the  Tax  Court  from  Utah—the  only  basis for   dismissing Tilden’s   petition   would   be   a   legal   conclusion   that  (B)(3)  is  the  sole subsection entitled  to  a  controlling  role.

“On   that   subject   we   agree   with   the   parties   that   the   Tax   Court   was   mistaken.   Part   (B)(3)   of   the   regulation   specifies   what   happens   if   an   envelope   has   both   a   private   postmark   and   a   postmark   from   the   U.S.   Postal Service.   Tilden’s   envelope   had   only   one  postmark.   The   regulation   does   not   ask   whether   a   date   that   is   not   a   ‘postmark’ is as good as a postmark.  It asks whether  there  are  competing  postmarks.

“To  say  ‘A is as good as B”  is not remotely to show that A is B. ‘Vanilla ice cream is as good as chocolate’ does not mean that a customer who orders  chocolate must accept vanilla, just because the  customer  likes both. They  are  still different. Subsection (B)(3) does not make anything turn on a date as reliable as an official postmark. It makes the outcome turn on the date of an official postmark.” 15-3838, at pp. 6-7 (Emphasis by the Court; Citations omitted).

USPS never claimed track-and-confirm was the same as a postmark.

OK, so Section 6213(a) is jurisdictional, but maybe the parties can stipulate timely mailing absent contrary proof of collusion, at least in Seventh Circuit.

But there’s a takeaway for the practitioner here, and Judge Easterbrook nails it.

“Although the taxpayer thus prevails on this appeal, we have to express astonishment   that a law firm… would wait until the last possible day and then mail an envelope   without an official postmark. A petition for review is not a complicated document; it could have been mailed with time to spare. And if the last day turned out to be the only possible  day  (perhaps the firm was not engaged by the client until the time had almost   run), why use a private postmark when an official one would have prevented any controversy? A member of the firm’s staff could have walked the  envelope to a post office and asked for hand cancellation. The regulation gives taxpayers another foolproof option by providing that the time stamp of a private delivery service, such as FedEx or UPS, is conclusive. 26 C.F.R. §301.7502–1(c)(3).  [Law firm] was taking an unnecessary risk with Tilden’s money (and   its   own, in the malpractice claim sure to follow if we had agreed with the  Tax  Court) by waiting until the last day and then not getting an official postmark or using a delivery service.” 15-3838, at p. 8.

Judge, “Foolproof?” Wanna bet? It’s not every service UPS or FedEx offers that qualifies for Section 7502 largesse. I can’t count the number of petitions thrown out because the petitioner did not use one of the blessed communion, fellowship divine.

But I’ve got a word or two for [Law Firm] and others similarly situated, from an earlier blog I’m too lazy to cite just now, for when those last-minute clients come storming through your door.

“Suggestion (or rather, practice hint): Have a form of Tax Court petition, with your contact info, name, rank and serial number filled in, on your desktop (and in your smartphone, if you use one of those contraptions). Have a couple preaddressed envelopes (hi, Judge Holmes) handy. Then when the fleet-footed clients come charging in as curfew strikes, you’ll be ready for them.”