Attorney-at-Law

“DOES NOT THE WILD BOAR BREAK COVER JUST AS YOU’RE LIGHTING A WEED?”

In Uncategorized on 11/30/2017 at 06:53

Never were the words of The Man From Mumbai truer spoken than yesterday, 11/29/17.

I gave myself a day off, called a truce to my labors, and headed for the Big A, on a delightful sunny afternoon. I should’a stood in bed. I didn’t cash a single winning ticket; I was as vexed as mild-mannered horse-talker Andy Serlin with the number of scratches. Why send a horse to a meet if you don’t mean to run her/him? OK, a vet scratch can’t be helped; but half-a-dozen scratches, not counting also-eligibles?

Howbeit, when I return,  materially poorer, from my non-holiday, Judge Lauber is stamping around with Lincoln C. Pearson and Victoria K. Pearson, 149 T. C. 20, filed 11/29/17.

It’s only tangentially Linc’s and Vic’s story. The players are an administrative assistant in the law office of Linc’s and Vic’s trusty attorneys, and Rob’t. H. Tilden. You remember Rob’t H. Tilden, whose stamp act caused almost as much of a tax kerfuffle as King George III’s? No? Then see my blogposts “Stamp Out Stamps.com – Part Deux,” 7/20/15, and “Just As I Was Settling Down,” 1/13/17. There, now.

Well, Judge Lauber and a majority of the USTC bench come out with their hands up, and Judge Easterbrook’s 7 Cir exegesis carries the day.

When it comes to USPS postmarks or the lack thereof, Reg. 301.7502-1(c)(1)(iii)(B)(3) rules.

Although Judge Lauber says a lengthy exposition is not needed in light of 7 Cir’s reversal in Tilden, he gives it the full monty.

“That provision applies ‘[i]f the envelope has a postmark made by the U.S. Postal Service in addition to a postmark not so made.’ In that event, ‘the postmark that was not made by the U.S. Postal Service is disregarded.’ Ibid.

“The envelope in Tilden, like the envelope here, did not actually have a USPS postmark, but only a Stamps.com postage label showing the date on which the label had been generated. But the record in Tilden, like the record here, included USPS tracking information showing that ‘the envelope entered the U.S. mail system [a day late].’ T.C. Memo. 2015-188, 110 T.C.M. (CCH) 314, 316. This Court concluded that this tracking datum could ‘serve as the functional equivalent of, or be tantamount to, a USPS postmark.’ Id. at 316 (citing Boultbee v. Commissioner, T.C. Memo. 2011-11, 101 T.C.M. (CCH) 1031, 1033-1034). Invoking subdivision (iii)(B)(3) of the regulation, this Court disregarded the Stamps.com postmark and concluded that the petition, deemed to have been postmarked on [a day late], was not ‘timely mailed.’” 149 T. C. 20, at pp. 11-12.

Well, 7 Cir blew that one off when IRS stiped that the petition was timely, based on a USPS statement from the relevant post office that, notwithstanding the track-and-confirm, the petition hit the mailbox in time.

Judge Buch concurs, with a lengthy discussion of technology since the old-fashioned postage meter.

But Judge David Gustafson is pressing Judge Holmes hard in the stretch of The Great Dissenter stakes. IRS isn’t “interpreting” its regs, it’s jumping several steps to buy into Judge Easterbrook’s view of Stamps.com and IRS’ acquiescence therein.

The bottom line is that anything other than the cancellation by the clerk behind the post office window can be jiggered to suit. While the USPS Manual says they’ll over-cancel anything wrongly dated, with the volume of mail as it is, things can slip. And while Stamps.com Q&A says you must deposit the article in the USPS mailbox the day, nobody is standing there to make sure you do it. Of course, Tax Court can’t conduct its own online investigation into the matters, per FRE 201.

“It appears to us that, if a date printed on a postage meter label or on a Stamps.com label could count as a postmark, it would have to be because the sender is obliged to mail the item on the date appearing on the label–an obligation as to which the opinion of the Court is silent. Otherwise, the date simply gives information about when the postage was purchased, not when the item was mailed. A mere receipt for the purchase of postage is not a ‘postmark’.” 149 T. C. 20, at p. 37.

Clearly Judge David Gustafson doesn’t oblige USCCAs like he does litigants.

Judge Morrison is with him on this.

I  point out that the same trusty attorney represented Rob’t. H. Tilden as represents Linc and Vic. His clients apparently make a habit of dashing in, SNOD in hand, at the last red-hot minute. Or maybe he likes photo-finishes.

Me, I couldn’t win yesterday if there was one.

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