Opinion
18210-23
11-13-2024
STEPHEN C. GILBERT & RONDA D. GILBERT, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
ELIZABETH A. COPELAND JUDGE
This case is calendared for trial during the Court's December 9, 2024, New York, New York trial session. On November 8, 2024, Respondent filed a Motion for Summary Judgment. In his Motion, Respondent contends that Petitioners, Stephen C. Gilbert and Ronda D. Gilbert, did not timely petition this Court as to tax year 2016. Respondent had sent separate copies of the Notice of Deficiency, dated February 15, 2023, to Mr. and Mrs. Gilbert by certified mail to their last known address. Taxpayers within the United States may petition this Court for redetermination of a deficiency within 90 days after the notice of deficiency is mailed. See § 6213(a). The 90th day after February 15, 2023, was May 16, 2023, a Tuesday. The Notice of Deficiency thus specified May 16, 2023, as the last day to petition this Court. The Petition was mailed 177 days after its due date based on the Petition's postmark. The Gilberts resided in New Jersey when their Petition was filed.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Mr. and Mrs. Gilbert contend that they never received either copy of the Notice of Deficiency. To support their contention, the Gilberts attached to their Reply to Answer screenshots of United States Postal Service tracking information indicating that both copies of the Notice of Deficiency were "Unclaimed/Being Returned to Sender" on March 7, 2023. They further contend that the Appeals Officer assigned to their case, Svetlana Levina, left the Independent Office of Appeals at some time during the course of the appeals process, contributing to their lack of knowledge about the Notice of Deficiency.
Absent a stipulation to the contrary, this case is appealable to the U.S. Court of Appeals for the Third Circuit, which has ruled that the 90-day period for filing a petition in a deficiency case is not jurisdictional and is subject to equitable tolling. See Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023); see also Golsen v. Commissioner, 54 T.C. 742, 756-57 (1970) (holding that this Court will "follow a Court of Appeals decision which is squarely in point where appeal from our decision lies to that Court of Appeals"), aff'd, 445 F.2d 985 (10th Cir. 1971). Therefore, notwithstanding the late filing of the Petition in this case, we may decide the Gilberts' case if they can establish facts entitling them to equitable tolling.
In his Motion for Summary Judgment, Respondent states as follows regarding the Gilberts' ability to establish equitable tolling:
In their reply, petitioners mainly argue that they never received a copy of the Notice of Deficiency, and thus their petition should not be considered untimely. Allegations of nonreceipt are insufficient to establish equitable tolling, as receipt is not required for the 90-day statutory period set forth in section 6213(a) to begin. Under section 6212, a Notice of Deficiency "shall be sufficient" if mailed to the taxpayer's last known address by certified or registered mail. The statutory language does not contain a requirement that a taxpayer receive the Notice of Deficiency. "[A]ctual receipt of the notice by the taxpayers is not required in order that the statutory filing period commence." Boccuto v. Comm'r, 277 F.2d 549, 552 (3d Cir. 1960); see also Zenco Engineering Corp. v. Comm'r, 75 T.C. 318, 322 (1980) ("There is a strong presumption in the law that a properly addressed letter will be delivered, or offered for delivery, to the addressee. Any other rule would impose unwarranted requirements upon respondent and would render meaningless the plain language of section 6212(b)(1)." (citations omitted)).Respondent contends that the Gilberts have not alleged facts that would entitle them to equitable tolling of the deadline.
For equitable tolling to apply to extend the limitations period, litigants must show that they have diligently pursued their rights; however, "some extraordinary circumstance" nevertheless prevented them from meeting the deadline. See Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 255-57 (2016); Sanders v. Commissioner, 160 T.C. 563, 575 (2023).
We will direct Mr. and Mrs. Gilbert to respond to the Motion. If they believe that they are entitled to equitable tolling, they shall so indicate in their response and include in an accompanying declaration, whatever facts they believe show that they diligently pursued their right to petition this Court, but that extraordinary circumstances prevented them from meeting the filing deadline.
Further, given the novelty of the issue, the Court welcomes input from amici counsel.
Upon due consideration, it is
ORDERED that this case is stricken from the Court's December 9, 2024, New York, New York trial session and is continued. It is further
ORDERED that jurisdiction of this case is retained by the undersigned. It is further
ORDERED that, on or before December 12, 2024, Petitioners shall file with Court a Response to Respondent's Motion for Summary Judgment. If Petitioners disagree with the facts set out in the Motion, Petitioners should point out the specific facts in dispute and explain why these factual disputes are important. If Petitioners disagree with Respondent's argument as to the law, then the response should also set out Petitioners' position on the disputed legal issues. It is further
ORDERED that any motion for leave to file a brief as amicus curiae must be filed on or before December 12, 2024. The proposed brief must be lodged at the time the motion is filed. Proposed briefs shall conform to the Rules of this Court and shall be limited to no more than 50 pages, exclusive of the case caption and signature block. The proposed brief may not use appendices, attachments, or exhibits beyond the page limit.