Attorney-at-Law

“DAYS OF OUR LIVES”

In Uncategorized on 01/13/2020 at 17:42

No, this is not an episode of the fifty-five year old soap opera. This is yet another in the endless series of counting days from date of mailing of petition to the date whereon the hard-laboring intake clerks and flailing datestampers at The Glasshouse on Second Street, NW, receive same in hot hands.

Judge Vasquez has this one, the story of Michael J. Seely and Nancy B. Seely, 2020 T. C. Memo. 6, filed 1/13/20. But Mike and Nan are bystanders, as the hero of this tale is their trusty attorney, whom I’ll call Scotty.

The SNOD, sent by certified mail to last known address, says last day to petition is June 26. Petition arrives at Glasshouse July 17. The envelope is sealed, undamaged, correctly addressed, and correctly postpaid. But there is no postmark or anything showing when USPS first got it.

IRS moves to toss for late filing. Scotty ripostes with a sworn declaration that he posted it in the mailbox on the corner on June 22.

We all know a USPS postmark is conclusive. Any non-USPS postage mark doesn’t count.

“The regulations prescribe distinct rules for USPS and non-USPS postmarks, sec. 301.7502-1(c)(1)(iii), Proced. & Admin. Regs., but they supply no rules to govern the situation where the envelope has no postmark whatsoever. When a postmark is missing, our caselaw instructs us to deem the postmark illegible and permit the introduction of extrinsic evidence to ascertain the mailing date. The burden is on the party who invokes section 7502 to present ‘convincing evidence’ of timely mailing.” 2020 T. C. Memo. 6, at p. 5 (Citations omitted).

It’s one thing to claim mailing when IRS never got the item, and that’s a loser, but here Tax Court did. So Judge Vasquez holds a hearing.

“At the hearing respondent alleged that it takes 8 to 15 business days for the USPS to deliver a piece of mail to a Government agency located in Washington, D.C., from any location in the United States. Petitioners do not dispute this contention, and we deem it conceded. If the petition was mailed on June 26…, the last day to file a petition, then the petition’s delivery date would have fallen within the 15-day window. In a sworn declaration [Scotty] declared that he deposited the petition in the U.S. mail several days earlier, on June 22…. Respondent argues that if the petition had in fact been mailed on June 22…, then it would have been delivered to the Tax Court no later than July 14…, which was a Friday. The petition, however, arrived on Monday, July 17…. Because the petition arrived at the Court later than it should have (16 business days after the alleged mailing date rather than 15), respondent contends that [Scotty]’s declaration is not convincing evidence. We disagree.” 2020 T. C. Memo. 6, at p. 7. (Footnote omitted, but here it is).

“Respondent stated that according to the USPS, it can take three to five business days for a piece of mail dropped into a collection box to reach Washington, D.C., from any location in the United States. Once sorted, mail is transported to a New Jersey location for irradiation, which takes an additional 5 to 10 days, and then returned to Washington, D.C., to be delivered. On the basis of this information it can be inferred that a petition can take as little as 8 business days and up to 15 business days to arrive at the Tax Court after being mailed.” 2020 T. C. Memo. 6, at p.7, footnote 3.

IRS claims Scotty is a day late and a lot more than a dollar short.

Judge Vasquez notes that while Mike and Nan’s petition was en route, there fell the Fourth of July holiday. Taking judicial notice that this is a Federal holiday which impacts holiday closures, staff shortages and higher than normal mail volumes, he finds Scotty beat the tag.

Scotty was timely. Just. I expect, however, that he won’t use that mailbox again.

 

 

 

 

 

 

 

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