Attorney-at-Law

“KATIE, BAR THE DOOR!”

In Uncategorized on 07/25/2017 at 15:55

No, this is not a re-make of the 1437 Scots ballad about brave Catherine Douglas and the slain King James I. This is the unavailing argument of the FedEx driver that he couldn’t enter the Glasshouse on the Magic Day to deliver the petition in Organic Cannabis Foundation, LLC. d.b.a. Organicann Health Center, Docket No. 10593-15, filed7/25/17.

And the Organicanns aren’t just blowing smoke; there’s better than a million bucks’ worth of deficiencies here. Source unspecified, but maybe business deductions potted by Section 280E.

First the Organicanns claim the SNOD was sent to the wrong address, because the P. O. Box number was omitted. The ZIP+4 puts paid to that one, as the USPS website says the SNOD got to the P. O. Box with 78 of the 90 days remaining. Plenty of time to file a petition.

Next is the hook for today’s sermonette, the mailed-is-filed, or maybe not, rule.

The Organicanns overnighted their petition via FedEx “First Overnight.” FedEx “First Overnight” is now one of the “blessed communion, fellowship divine,” anointed by John (“Kosi”) Koskinen, Boss Hoss at 1111 Constitution Ave., NW. Except it wasn’t when the Organicanns sent in their petition. FedEx “First Overnight” didn’t make the cut for another two weeks thereafter.

So the Organicanns are out? Yes, but. They have one last dive at the goal line. But Judge Pugh stifles that one too.

“Petitioner urges the Court apply Guralnik v. Commissioner, 146 T.C. 230 (2016), to conclude that the petition was timely filed because the Clerk’s office was not accessible to the FedEx delivery driver on the last day for filing. In Guralnik, the taxpayer’s statutorily prescribed filing deadline ended on a day the Court was officially closed due to a snow emergency. Id. at 233-234. We concluded that the ‘timely mailed, timely filed’ rule did not apply because the taxpayer used the FedEx First Overnight service (as petitioner used here), which service was not then listed among the designated private delivery services under section 7206(f). Id. at 240-241. We also declined to give Notice 2015-38 retroactive effect. Id. at 241. However, we applied Rule 6(a)(3), Federal Rules of Civil Procedure, to hold that when the Clerk’s office is inaccessible because of inclement weather, government closings or for other reasons, the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday. Unlike the snow emergency closing in Guralnik, here, the Court’s Clerk’s office was open during its normal business hours and was not inaccessible the entire day due to inclement weather, government closings, or other reasons. We, therefore, find Guralnik distinguishable and we decline to expand our holding in Guralnik to cover circumstances where an unspecified event may have blocked access for a period of time but the Clerk’s office is not inaccessible due to closure for the entire day.” Order, at p. 5.

Y’all will remember Felix Guralnik from my blogpost “Neither Equity Nor Designation,” 6/2/16. As usual, you read it here first.

Takeaway 1- Get the current list of the “blessed communion, fellowship divine” private delivery services and post a copy on every flat surface you can find.

Takeaway 2- Upon receipt of SNOD or NOD, pull a Form 2 petition off the Tax Court website, fill in a barebones “I object to everything” and send in same with a check. By the time you get the motion to strike for failure to state a claim, you’ve bought enough time to amend.

Takeaway 3- Unless it’s a DC public holiday or the Glasshouse is totally inaccessible all day, keep banging on the door. Katie Barlass is long gone.

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