Attorney-at-Law

MR SHAPIRO, MEET MR PORTNEY

In Uncategorized on 05/11/2021 at 15:46

It’s been almost nine (count ’em, nine) years since I last blogged a case of the accountant who mailed without proof. But today, William J. Spain and Idovia A. Spain, 2021 T. C. Memo. 58, filed 5/11/21, are in the same condition as Mr. Tesoriero, whose story I told in my blogpost “Wait Just a Minute, Mr. Postman – Part Deux,” 9/11/12.

Judge Albert G (“Scholar Al”) Lauber will explain.

“The IRS issued petitioners separate notices of determination dated September 10, 2019, sustaining the collection action. Tracking data from the U.S. Postal Service (USPS) show that these notices were mailed the following day and delivered to petitioners on September 16, 2019. The notices advised petitioners: ‘If you want to dispute this determination in court, you must file a petition with the United States Tax Court within 30 days from the date of this letter.’ See sec.6330(d)(1). Because the notices were mailed on September 11, 2019, the 30-day period expired on Friday, October 11, 2019.

“The Court received a petition from petitioners on October 21, 2019. That date was 40 days after the IRS issued the notices of determination. Petitioners disputed their underlying liability for 2014 and asked the Court to ‘plac[e] a hold on collections until the ** * [IRS] has had the opportunity to complete the audit reconsideration process and process the related amended income tax return.'” 2021 T. C. Memo. 58, at p.  3. (Citation omitted).

The petition, dated October 10, 2019, lacked original signatures. And Wm. and Indovia had gotten a SNOD for the years at issue, which they had not petitioned. The petition from the NITL which followed was contained in a properly postpaid envelope, with a postage machine stamp, but no USPS postmark. So IRS told Wm. and Indovia that they would move to toss unless Wm. and Indovia came up with “receipts or other documents” showing timely mailing.

“…petitioners’ accountant, Richard Shapiro, replied with a letter in which he stated that the petition had been signed by petitioners on October 10, 2019, and mailed that same day from his office in Scottsdale, Arizona. However, Mr. Shapiro supplied no ‘receipts or other documents’ as respondent had requested.” 2021 T. C. Memo. 58, at p. 4.

IRS moved to toss, and Mr. S sent Judge Scholar Al a copy of the letter he sent IRS, and asked “…that petitioners ‘be provided their opportunity to review their case through[the] appeals process.'” 2021 T. C. Memo. 58, at p. 5.

Minor problem: “Mr. Shapiro has not entered an appearance on behalf of petitioners, and petitioners did not sign his letter. See Rule 23(a)(3) (providing that paper filings ‘shall bear the original signature of the party’s counsel, or of the party personally if the party is self-represented’).” 2021 T. C. Memo. 58, at p. 4, footnote 2.

No mention whether or not Mr. S is admitted to practice before Tax Court. But here it doesn’t matter.

The Section 7502 mailed-is-filed regs deal with USPS and non-USPS postmarks, but not when a mailpiece has no postmark at all. Tax Court has generally (love that word!) allowed extrinsic evidence to show due mailing, but that has to be “convincing” evidence. And the petitioner has BoP.

“When confronted with illegible or missing postmarks, we have considered various types of extrinsic evidence. We have examined the envelope to see whether any markings indicate that the letter had been ‘misplaced, missent, or inadvertently lost or damaged.’ We have also considered testimony from the person claiming to have mailed the envelope. This testimony must be credible and convincing. We are not required to accept uncorroborated, self-serving statements ‘as gospel.’” 2021 T. C. Memo. 58, at p. 7. (Citations omitted).

The envelope is undamaged; no sign that it was misdelivered, misdirected, or misplaced. And all the evidence Judge Scholar Al has is Mr S’s letter.

No good.

“The regulations warn taxpayers and their advisers that ‘the sender who relies upon the applicability of section 7502 assumes the risk that the postmark will bear a date on or before the last date * * * prescribed for filing.’ Sec.301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs. To avoid this risk, the regulations advise the use of certified mail. Ibid. Had Mr. Shapiro used certified mail, he would have a receipt postmarked by the employee to whom he presented the envelope, and that postmark would be treated as the postmark date of the document. Id. subpara. (2). In this case petitioners have no persuasive evidence of timely mailing, and they have therefore failed to meet their burden to ‘establish affirmatively all facts giving rise to our jurisdiction.’” 2021 T. C. Memo. 58, at p. 9.

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