Attorney-at-Law

THE MAILBOX RULE

In Uncategorized on 01/29/2020 at 21:31

The traditional “mailbox rule” states that, absent direct evidence of receipt, proof of mailing presumes official regularity and delivery.

But proof of mailing is not so easy, when jurisdiction requires a timely-mailed Form 12153 as foundation for a CDP and petition therefrom.

Just ask Hubert W. Chang, 2020 T. C. Memo. 19, filed 1/29/20. Or better, don’t ask him, as he lost; ask Judge Gerber.

“Petitioner contends that he did mail two letters within 30 days of a lien notice and a levy notice, requesting CDP hearings. Respondent counters that both of petitioner’s letters were received after the 30-day period allowed and that neither of the envelopes containing petitioner’s letters was postmarked. The sole question presented for our consideration is whether petitioner’s letters were mailed within the 30-day period.” 2020 T. C. Memo. 19, at p. 2.

Hubert has a problem with some of the years he’s petitioning, as he’d petitioned a bunch of them twelve (count ‘em, twelve) years ago. And he doesn’t do much better with the ones he’s now disputing.

The envelopes were properly addressed and postpaid. Judge Gerber finds they were mailed a day late and a lot more than a dollar short.

Hubert’s trial testimony wasn’t the best. At first he testified he mailed the envelopes a day late, then backtracked and claimed mailing on the last day at the local mailbox. The local mailbox is found on that lovely island Oahu, and the local USPS manager and postal expert, Mr. Ikaika Bright, deciphering the barcode printed on the envelopes by USPS machinery, testifies they were most likely mailed one day late.

Hubert did get an equivalent hearing, at which he raised all his objections to the proposed collection activities, to no avail. And of course you can’t petition an equivalent hearing.

Hubert goes down swinging.

“On brief petitioner argued that it is possible that his requests were mailed on [Day 30], and that there could have been delays. He suggests that the USPS could have misplaced the requests or that they were delayed in the process of pickup from his local post office to the main processing facility in Honolulu. There have been instances where delay or other infirmities in the mail service have been shown, but in this instance it is purely speculation on petitioner’s part. To his detriment petitioner testified that he mailed the requests on [Day 30 + 1], one day late. Petitioner laments that it was only one day late and that the Court should take the initiative to provide him with a hearing. Sadly, we are unable to grant petitioner’s wish under these circumstances.” 2020 T. C. Memo. 19, at p. 8.

Now for Taishoff’s Mailbox Rule: Don’t use a mailbox. Get the envelope(s) hand-canceled by the clerk at the window.

 

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