Opinion
13999-20L
10-05-2021
Lori J. Boensch Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Ronald L. Buch, Judge
This case was called from the calendar at the remote session of the Court on October 4, 2021, for cases where Detroit, Michigan is the place of trial. The Court had set the Commissioner's Motion to Dismiss for Failure to Properly Prosecute filed September 7, 2021, for hearing. Ms. Boensch did not appear. Counsel for the Commissioner appeared and was heard. Neither the Court nor counsel for the Commissioner has been able to contact or has heard from Ms. Boensch, which coupled with her failure to appear, would serve as grounds to justify dismissal. But before the Court can dismiss this case, it must be satisfied that it has jurisdiction in the first instance.
In this collection case, Ms. Boensch challenges the Commissioner's proposed levy under section 6330. (Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure). Using the Court's petition form (T.C. Form 2), Ms. Boensch indicated the IRS action she disputed: "Notice of Determination Concerning Collection Action." In the portion of the form that asks the petitioner to identify the date the IRS issued its notice, Ms. Boensch wrote "October 13, 2020." Although Ms. Boensch checked a box indicating that she had enclosed a copy of any notices the IRS issued to her, she did not include a copy of her notice. Ms. Boensch mailed her petition in an envelope bearing a United States Postal Service postmark date of November 16, 2020. The Court received the petition on November 23, 2020.
The Commissioner filed his answer on March 4, 2021. In his answer, the Commissioner alleged that he mailed a notice of determination to Ms. Boensch on October 13, 2020. The Commissioner also attached a copy of the notice of determination. That copy, however, was undated.
For the Court to have jurisdiction, there generally must have been a notice mailed to the taxpayer at her last known address and a timely petition. The address Ms. Boensch listed on her petition is the same address to which the Commissioner mailed the notice of determination. But the information before the Court does not establish when the Commissioner mailed the notice of determination to Ms. Boensch. Thus, we will ask the Commissioner to supply either a dated copy of his notice or other information to establish that he mailed the notice of determination to Ms. Boensch on October 13, 2020.
Even if we assume the notice was mailed on October 13, 2020, additional events complicate the jurisdiction question in this case. On October 29, 2020, the Court issued a press release stating that, effective October 30, 2020, it would "be suspending its in-person acceptance of hand-delivered documents." Then, on November 12, 2020, the Court issued another press release stating that it would "resume accepting hand-delivered documents to the main courthouse building" beginning November 16, 2020. The deadline for Ms. Boensch to file her petition fell during the period when the Court was not accepting hand-delivered documents, and she mailed it on the first day the Court resumed accepting hand-delivered documents.
This Court's jurisdiction depends on the timely filing of a petition. Rule 13(c). In collection cases, a taxpayer may file a petition with this Court within 30 days of a determination under section 6330. Sec. 6330(d)(1). We have repeatedly held that the 30-day filing period is jurisdictional. See, e.g., Guralnik v. Commissioner, 146 T.C. 230, 235 (2016).
The 30-day filing period may be extended in certain circumstances. When the last day for filing falls on a Saturday, Sunday, or legal holiday, the time for filing is extended to the next day which is not a Saturday, Sunday, or legal holiday. Sec. 7503. In Guralnik v. Commissioner, 146 T.C. at 232, applying Rule 6(a)(3) of the Federal Rules of Civil Procedure, we held that if the Tax Court clerk's office is "inaccessible" on the last day for filing a petition, then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday.
Most petitions are not filed in person, but rather they are mailed to the Court. A petition that is properly mailed is considered timely if mailed by the due date for filing. Sec. 7502. If the envelope in which a petition is mailed bears a United States Postal Service postmark date that is on or before the last day for filing a petition, and the petition is delivered to the Tax Court by U.S. mail after the last day for filing, the date of the postmark stamp is deemed the date of delivery. Sec. 7502(a)(1), (2).
The question in this case is whether the holding in Guralnik and section 7502's "timely mailing" rule apply in tandem to render Ms. Boensch's petition timely. If we assume the Commissioner mailed the notice of determination on October 13, 2020, Ms. Boensch's last day to file a petition was November 12, 2020. The Tax Court was not accepting hand-delivered petitions that day. If the Clerk's office is deemed inaccessible under this situation, then the filing deadline would be extended to November 16, 2020. Ms. Boensch's petition was postmarked on that date. If the timely mailing rule of section 7502 applies, the petition would have been timely when delivered by U.S. mail on November 23, 2020.
To obtain the parties views on these issues, it is
ORDERED that, by November 24, 2021, the parties shall file responses to this order regarding the Tax Court's jurisdiction in this case. The Commissioner shall include with his response either a dated copy of the notice of determination or proof of mailing of the notice of determination.
The Court encourages all litigants to register for electronic access (eAccess) so that they may electronically file and view documents in their Tax Court cases. If you currently file in paper and/or receive paper service from the Court, you are encouraged to register for eAccess by emailing dawson.support@ustaxcourt.gov.