Attorney-at-Law

“DAYS OF OUR LIVES” – PART DEUX

In Uncategorized on 08/25/2020 at 16:02

When the lights go on again all over the world, and the  judges’ cafeteria at the Glasshouse reopens, Judge Travis A. (“Tag”) Greaves should sit down with fellow-Tejano Judge Juan Vasquez over a cup coffee and a piece pie (hi, Judge Holmes), and talk about when lawyers claim they dropped a petition in the mailbox on the last of the magic Ninety Days.

My readers will recall Judge Vasquez’s painstaking review and meticulous day-counting, of a kind found only in religious rituals, more particularly bounded and described in my blogpost “Days of Our Lives,” 1/13/20, where Judge Vasquez let an attorney whom I called then, and will call now, Scotty, off the hook and saved his clients’ petition. But then there was no postmark on Scotty’s envelope.

Today, Judge Tag is much less kindly disposed to the unlucky attorney for Blanca Rivas, 2020 T. C. Memo. 124, filed 8/25/20, whom I’ll call Mo, and who bailed last week.  There was a postmark on his.

Mo dropped the petition in the mailbox on the last day. The postmark was the next day. IRS claims a day late and a lot more than a dollar short.

I am sure he is awaiting The Phone Call.

As the mailing in question took place last year, the current postal issues (which, being political, I will not discuss in this avowedly nonpolitical blog, although I have vociferously stated my views elsewhere) are not in play. I nevertheless caution practitioners to get the USPS cancellation on the envelope. Standing in line at the post office beats The Phone Call; trust me.

Judge Tag: “Petitioner does not contradict that the 90-day period expired [day before postmark] but rather asserts that the deadline to file a petition for redetermination is a ‘claims processing rule’ and equitable tolling applies.” 2020 T. C. Memo. 124, at pp. 2-3.

Before you, my hip readers, yell “nonstarter!” please take pity on Mo. He obviously never read my blogposts “Le Quinzième Juillet,” 4/10/20, as edited, and “Harvard Gets It Right,” 6/29/20. Section 6213 is jurisdictional.

Judge Tag belabors Blanca and Mo with a couple pages (hi again, Judge Holmes) of citations to cases wherein the Circuiteers have continually put paid to any assertion other than “90 days is 90 days, and only a USPS postmark can prove it.”

 

 

 

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