Opinion
Docket No. 22853-85.
1986-05-29
LOIS BLUM, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
Douglas W. Thomson, for the petitioner. 1 Gordon L. Gidlund and Will E. McLeod, for the respondent.
On the 90th day after the notice of deficiency was mailed, P delivered her petition to a private delivery service and contracted for express delivery of the original petition and electronic transmission of a copy of the petition via satellite to be delivered that same day. Pursuant to the terms of delivery, a copy of the petition was electronically reprinted in Washington, D.C. and was tendered to the Court by the private delivery service that same day; however, the Court refused to receive the electronically transmitted copy. The original petition was hand-delivered to the Court and filed on the 91st day.
HELD, an electronically transmitted copy of a petition is a communication similar to a telegram, cablegram, radiogram or telephone call and will not be recognized as a petition. Rule 34(a)(1), Tax Court Rules of Practice and Procedure.
HELD FURTHER, P's petition was not timely filed as required by sec. 6213(a), I.R.C. 1954, as amended. Blank v. Commissioner, 76 T.C. 400 (1981). Douglas W. Thomson, for the petitioner.
Gordon L. Gidlund and Will E. McLeod, for the respondent.
50% of the interest due on $9,421.
OPINION
STERRETT, CHIEF JUDGE:
Respondent's Motion to Dismiss for Lack of Jurisdiction filed herein was assigned to Special Trial Judge Francis J. Cantrel pursuant to section 7456(d)(4), Internal Revenue Code of 1954, as amended, and Rule 180, Tax Court Rules of Practice and Procedure. After a review of the record, we agree with and adopt his opinion which is set forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
CANTREL, SPECIAL TRIAL JUDGE:
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction filed on August 15, 1985. Respondent seeks dismissal on the ground that the petition was not filed within the time prescribed by section 6213(a) or section 7502.
50% of the interest due on $812.
1 Mr. Thompson, who is admitted to practice before this Court, subscribed the petition on petitioner's behalf.
2 All section references are to the Internal Revenue Code of 1954, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.
3 The Zapmail package, including any documents contained therein, which was refused by the Court on July 2, 1985, is not in evidence. This may be because the package was not returned to petitioner by Federal Express; however, we are speculating since the record is entirely silent on this point.
4 Sec. 6213(a) provides in pertinent part—‘Within 90 days * * * after the notice of deficiency authorized in section 6212 is mailed (not counting Saturday, Sunday or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. * * *‘
5 As it originally appeared in 1942, Rule 7 provided, in pertinent part—‘No telegram, cable, radio, or similar message will be recognized as a petition on and after July 1, 1942.‘ In 1948, the provision was revised to read as it does today. See Rule 7(c)(3), December 15, 1948 ed. The Note (60 T.C. 1084) to Rule 34(a) states, in part, ‘The provision of present T.C. Rule 7(c)(3), that certain media for communicating a petition are insufficient, is continued because of the problems of authenticity and definiteness.‘The provision not to recognize telegrams, cablegrams, and similar messages was added to the Rules in response to the appellate court decision in McCord v. Commissioner, 123 F.2d 164 (D.C.Cir. 1941). See Dubroff, The United States Tax Court, p. 413 (1979). In McCord, the United States Court of Appeals for the District of Columbia reversed our dismissal of an untimely telegraphic petition. At the time of that decision it was the practice of the Court to receive such petitions and the appellate court concluded that the untimeliness was due to our method of handling that petition.
6 PRESS RELEASEChief Judge Howard A. Dawson, Jr. of the United States Tax Court announced today that, with respect to electronic mail, the public is cautioned that the United States Tax Court will not accept from any courier documents electronically transmitted by facsimile process or otherwise. Such documents do not conform with the Court's Rules of Practice and Procedure as to form and style. Anyone facing an imminent deadline is reminded that a United States Postal Service postmark date is controlling for determining timeliness of documents.
7 Such documents, by their very nature, do not comport with our Rules regarding original, signed documents and do not comply with the specifications for form and style of papers. There are important reasons behind the Rules of Practice and Procedure of this Court which would be entirely lost should we fail to enforce its strictures.With regard to the form and style of papers, Rule 23, in relevant part, states:(a) Caption, Date, and Signature Required: All papers filed with the Court shall have a caption, shall be dated, and shall be signed as follows:(3) Signature: THE ORIGINAL SIGNATURE, EITHER OF THE PARTY OR HIS COUNSEL, SHALL BE SUBSCRIBED IN WRITING TO THE ORIGINAL OF EVERY PAPER FILED by or for that party with the Court, except as otherwise provided by these Rules. * * *(b) Number Filed: FOR EACH PAPER FILED IN COURT, THERE SHALL BE FILED four conformed copies TOGETHER WITH THE SIGNED ORIGINAL THEREOF * * *.(g) Return of Papers for Failure to Conform to Rule: THE CLERK MAY RETURN (or refuse to accept) WITHOUT FILING ANY PAPER THAT DOES NOT CONFORM to the requirements of this Rule. (Emphasis added.)In addition see Rule 34, pertaining to petitions, which provides in pertinent part—(b) * * *: THE PETITION IN A DEFICIENCY * * * ACTION SHALL CONTAIN * * *:(7) THE SIGNATURE * * * OF EACH PETITIONER OR HIS COUNSEL.(d) Number Filed: FOR EACH PETITION FILED, THERE SHALL BE A SIGNED ORIGINAL together with two conformed copies. (Emphasis added.)
8 In closing, we add that petitioner could have mailed envelope containing the original petition by U.S. ordinary mail or sent it by registered or certified mail as provided in sec. 7502(c) and the regulations issued thereunder. Estate of Moffat v. Commissioner, 46 T.C. 499, 502 (1966). Had petitioner properly mailed the petition by U.S. registered or certified mail on July 2, 1985 the petition would have been deemed timely filed whether or not actually received by the Court. Sec. 301.7502-1(d)(1), Proced. & Admin. Regs. Storelli v. Commissioner, 86 T.C. 443 (1986). Finally, petitioner has not completely lost her day in Court. She may pay the deficiency, file a claim for refund and, if that claim is denied, or the Commissioner fails to act thereon within 6 months, she may commence an action in the United States District Court for the locale in which she resides or the U.S. Claims Court in Washington, D.C. to recover the tax paid. Drake v. Commissioner, 554 F.2d 736, 739 (5th Cir. 1977).
Respondent in his notice of deficiency issued to petitioner on April 3, 1985, determined deficiencies in petitioner's Federal income taxes and additions to the tax for the taxable years 1981 to 1983, inclusive, in the following amounts:
+-------------------------------------------------------+ ¦ ¦ ¦Additions to tax, I.R.C. 1954 ¦ +-----+----------+--------------------------------------¦ ¦Years¦Income tax¦Sec. 6653(b)¦Sec. 6653(b)(2)¦Sec. 6611¦ +-----+----------+------------+---------------+---------¦ ¦1981 ¦$1,217 ¦$609 ¦--- ¦--- ¦ +-----+----------+------------+---------------+---------¦ ¦1982 ¦9,421 ¦4,711 ¦( 1 ) ¦$942 ¦ +-----+----------+------------+---------------+---------¦ ¦1983 ¦812 ¦406 ¦( 2 ) ¦--- ¦ +-------------------------------------------------------+
The statutory notice of deficiency was mailed on April 3, 1985 by U.S. certified mail (no. 179,028) to petitioner at her last known address in Center City, Minnesota pursuant to section 6212. Petitioner duly received the notice of deficiency in time to file a timely petition in this Court.
On July 2, 1985, the 90th day after the notice of deficiency was mailed (and not a Saturday, Sunday or legal holiday in the District of Columbia) petitioner's attorney delivered or caused to be delivered a petition for redetermination of the deficiencies to an office of the Federal Express Corporation (hereinafter referred to as ‘Federal Express‘) in St. Paul, Minnesota. A contract of delivery was executed which called for delivery of a copy via satellite (‘Zapmail‘) and express delivery of the original. Pursuant to the delivery terms, the petition was scanned by satellite on July 2, 1985 at 10:58 a.m. in St. Paul, Minnesota, and a copy of the petition was electronically printed in Washington, D.C. The Washington, D.C. office of Federal Express proceeded to tender the electronically transmitted copy to the Court at 12:40 p.m. that same day, however, the package was refused by an employee of the Court's mailroom. On July 3, 1985 the petition which the Court now has in this record was hand-delivered to the Court's mailroom by Federal Express. That petition was received and duly filed on July 3, 1985, the 91st day.
Petitioner filed an objection and supplemental memorandum on September 12 and October 29, 1985, respectively, in opposition to respondent's motion to dismiss for lack of jurisdiction now under consideration. Therein petitioner argues that the motion should be denied on the ground that a copy of the petition was timely delivered via Federal Express Zapmail to the Court on the 90th day.
Alternatively, petitioner contends that the petition was timely mailed on July 2, 1985 and, therefore, is deemed timely filed pursuant to section 7502(a)(1).
A hearing on respondent's motion was conducted in Washington, D.C. on December 18, 1985. No appearance was made by or on behalf of petitioner. Respondent, by and through his motion and at the hearing, contends that we lack jurisdiction over this matter because petitioner did not timely file the petition in this case within the time prescribed by section 6213(a). Respondent further asserts that the provisions of section 7502 do not apply. On the basis of this record, we must, and do, agree with respondent.
It is clear that this Court has jurisdiction to proceed on the merits of petitioner's case only if we find that a timely petition has been filed.
The 90-day filing period is jurisdictional and cannot be extended. Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980); Joannou v. Commissioner, 33 T.C. 868, 869 (1960); Rich v. Commissioner, 250 F.2d 170 (5th Cir. 1957). In resolving this issue we must, at the outset, determine whether the electronically transmitted copy which was tendered to the Court on the 90th day should be regarded as effective for the purpose of establishing jurisdiction, notwithstanding that it does not conform to the Court's Rules.
It is clear to us that petitioner went to the trouble of contracting to have a copy of her petition electronically transmitted and hand-delivered to the Court specifically to meet the 90-day filing requirement. She apparently was unaware, however, of this Court's practice not to receive any electronically transmitted documents. The Court's practice not to receive such documents is based upon a Rule of the Court which has been in existence for over 40 years.
Section 7453 provides that proceedings of the Tax Court shall be conducted in accordance with such Rules of Practice and Procedure (other than Rules of Evidence) as the Court may prescribe. Pursuant to this authorization, we have over many years developed a comprehensive set of Rules which are designed and calculated to increase our efficiency in adjudicating genuine tax disputes. In 1973 the Rules of Practice and Procedure of this Court were substantially revised, adopted, and promulgated, effective January 1, 1974. Therein appeared Rule 34(a)(1) pertaining to petitions in deficiency or liability actions. Rule 34(a)(1), insofar as it has application to this case provides: ‘(n)o telegram, cablegram, radiogram, telephone call, or similar communication will be recognized as a petition.‘ This provision while new to Rule 34 derives from B.T.A. Rule 7 and has been a part of our Rules since 1942. See B.T.A. Rule 7, June 1, 1942 ed.
Pursuant to our Rule, it has been the long-standing practice of this Court not to accept any such documents for jurisdictional purposes. See, e.g., Joannou v. Commissioner, supra at 870, where over 26 years ago we said— ‘* * * The Court tries to be liberal in regarding documents filed with it within the 90-day period as petitions, but it has no right to be liberal in extending its jurisdiction. Rule 7(c)(3) of the Court's Rules of Practice expressly provides that no telegram will be recognized as a petition. I.J. Rosenberg, 32 B.T.A. 618 * * *.‘
The record shows that petitioner's electronically transmitted copy was refused by an employee of the Court's mailroom. This action is consistent with the Court's Rules and its practice not to receive any communications that are similar to a telegram, cablegram, or radiogram. This action is also in accord with the Court's Press Release issued September 28, 1984 of which we take judicial notice and reproduce in full below wherein we clarified that the Court will not receive any electronically transmitted documents.
It is petitioner's burden to show that the document tendered to the Court on the 90th day was a petition and that this Court has jurisdiction. Harold Patz Trust v. Commissioner, 69 T.C. 497, 503 (1977), and cases cited therein. However, petitioner has not presented any evidence or authority to support a finding that the electronically transmitted copy is not a ‘similar communication‘ within the meaning of Rule 34(a)(1). We have not previously considered the consequences of tendering a document that is reproduced via satellite; however, we see no basis for according ‘Zapmail‘ or any other kind of electronically transmitted mail the authenticity which we have refused to extend to telegrams, radiograms, or cablegrams. We will not accept documents that are the products of such media for jurisdictional purposes.
Accordingly, we hold that an electronically transmitted copy of a petition is a communication similar to a telegram, cablegram, radiogram, or telephone call and, therefore, will not be recognized as a petition. Rule 34(a)(1). The clerk properly refused to accept the electronically transmitted document on July 2, 1985.
In Blank v. Commissioner, 76 T.C. 400 (1981), we considered petitioner's alternative argument and rejected it. We held that section 7502 does not apply when delivery is made by a private delivery service rather than the U.S. Postal Service. 76 T.C. at 407. Accordingly, the petition received and filed by the Court on July 3, 1985, the 9lst day, was not timely filed as required by section 6213(a).
Respondent's motion will be granted.
An appropriate order of dismissal for lack of jurisdiction will be entered.