T.C. Memo. 2008-231
UNITED STATES TAX COURT
HENDY J. APPLETON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7954-08L. Filed October 20, 2008.
R mailed a notice of determination to petitioner
on Friday, Feb. 29, 2008. Thirty-three days later, on
Wednesday, Apr. 2, 2008, P mailed a petition to the
Court seeking to commence a levy action. Thereafter, R
filed a motion to dismiss for lack of jurisdiction.
Held: The petition was not timely filed.
Held, further, Tax Court Rule 25(a)(2)(C) does not
support a contrary conclusion.
Brian G. Isaacson, for petitioner.
Shirley M. Francis, for respondent.
- 2 -
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This case is before the Court
on respondent’s Motion To Dismiss For Lack Of Jurisdiction, filed
May 23, 2008. In his motion, respondent contends that this case
should be dismissed for lack of jurisdiction on the ground that
the petition was not filed within the time prescribed by section
6330(d) or section 7502.1 On June 23, 2008, petitioner filed a
Notice Of Objection to respondent’s motion. Thereafter, on
August 25, 2008, respondent filed a Response to petitioner’s
objection.
At the time that the petition was filed, petitioner resided
in the State of Oregon.
Background
The facts necessary to a resolution of respondent’s motion
are as follows:
On January 4, 2007, respondent sent petitioner a Final
Notice Of Intent To Levy And Notice Of Your Right To A Hearing in
respect of petitioner’s outstanding liability for 2000. See sec.
6330(a). Petitioner timely requested an administrative hearing,
see sec. 6330(b), by filing with respondent a Form 12153, Request
for a Collection Due Process or Equivalent Hearing. Ultimately,
1
All section references are to the Internal Revenue Code
of 1986, as amended. All Rule references are to the Tax Court
Rules of Practice and Procedure.
- 3 -
respondent’s Appeals Office in Seattle, Washington, sent
petitioner a Notice Of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330 (notice of
determination). See sec. 6330(c)(3). The notice of
determination was both dated and mailed February 29, 2008, which
date was a Friday, and it was sent to petitioner by certified
mail addressed to her at her last known address.2 See Weber v.
Commissioner, 122 T.C. 258, 261-262 (2004) (notice of
determination is sufficient if sent by certified mail to taxpayer
at taxpayer’s last known address). The notice of determination
sustained the proposed levy.
Petitioner received the notice of determination.
Thereafter, on Thursday, April 3, 2008, petitioner, acting
through counsel, filed a petition with this Court seeking
judicial review of respondent’s proposed collection action. The
petition arrived at the Court by private delivery service (PDS)
pursuant to priority overnight service. See sec. 7502(f). The
airbill indicates that the petition had been given to the PDS on
Wednesday, April 2, 2008.
2
The record suggests that a copy of the notice of
determination was also mailed on Feb. 29, 2008, to petitioner’s
authorized representative (petitioner’s counsel of record in the
instant case).
- 4 -
Petitioner’s mailing and legal address, as alleged in
paragraph 2 of the petition, is the same address as the address
to which the notice of determination was mailed.
Discussion
A. Jurisdiction: General Principles
The Tax Court is a court of limited jurisdiction. See sec.
7442. Accordingly, we may exercise jurisdiction only to the
extent expressly authorized by statute. Breman v. Commissioner,
66 T.C. 61, 66 (1976).
In a collection review action involving a proposed levy,
this Court’s jurisdiction under section 6330 depends on the
issuance of a notice of determination by respondent’s Office of
Appeals and the filing by the taxpayer of a timely petition.
Sec. 6330(d)(1); Weber v. Commissioner, supra at 261; Sarrell v.
Commissioner, 117 T.C. 122, 125 (2001); Moorhous v. Commissioner,
116 T.C. 263, 269 (2001); Offiler v. Commissioner, 114 T.C. 492,
498 (2000); see Rule 330(b). See generally Rules 330-334.
If respondent’s Office of Appeals issues a valid notice of
determination to a taxpayer but the taxpayer fails to file a
timely petition, then the Court will (and must) dismiss the
action for lack of jurisdiction. Weber v. Commissioner, supra at
262.
- 5 -
B. Respondent’s Position
Respondent asserts (and petitioner does not dispute) that
respondent’s Seattle Appeals Office sent petitioner the notice of
determination by certified mail on Friday, February 29, 2008, and
that the notice of determination was addressed to petitioner at
her last known address. Respondent then points to section
6330(d)(1), which permits a taxpayer to appeal respondent’s
determination to this Court “within 30 days” of such
determination. Respondent contends that because the notice of
determination was mailed on February 29, 2008, petitioner was
obliged to file her petition with the Court no later than Monday,
March 31, 2008.3 Because the petition was not filed with the
Court until Thursday, April 3, 2008, and further because the
petition was not given to the PDS for mailing to the Court until
Wednesday, April 2, 2008, see sec. 7502(f), respondent concludes
that the instant case must be dismissed for lack of jurisdiction.
C. Petitioner’s Position
Petitioner agrees that an untimely-filed petition must be
dismissed for lack of jurisdiction. However, relying generally
on Rule 25(a) and specifically on Rule 25(a)(2)(C), petitioner
3
March 30, 2008, was the 30th day after the mailing of the
notice of determination; however, that date was a Sunday.
Accordingly, in respondent’s view, the petition was not due until
the following business day. See sec. 7503 (regarding the time
for performance of acts where the last day otherwise falls on a
Saturday, Sunday, or legal holiday).
- 6 -
contends that the petition was timely filed. Thus, in her Notice
of Objection, petitioner argues as follows:
Tax Court Rule 25(a)(1) Computation of Time
states, “If service is made by mail, then a period of
time computed with respect to the service shall begin
on the day after the date of mailing.” In this case,
the Notice of Deficiency [sic] was mailed on Friday,
February 29, 2008, the period of time would not begin
until Saturday, March 1, 2008.
Tax Court Rule 25(a)(2)(C) states, “if any act is
required to be taken or completed no later than (or at
least) a specified number of days before a date
certain, then the earliest day of the period so
specified shall not be included [if] it is a Saturday,
Sunday, or a legal holiday in the District of Columbia,
and the earliest such day shall be the next preceding
day which is not a Saturday, Sunday, or such a legal
holiday.” Therefore, Saturday, March 1, 2008 and
Sunday, March 2, 2008 are not included in the time
computation. Therefore, the earliest day from which
the time period begins is Monday, March 3, 2008.
Petitioner then observes that 30 days from March 3, 2008, is
April 2, 2008. Ergo, petitioner concludes, the petition was
timely mailed and therefore timely filed. See sec. 7502(f).
D. Analysis
The parties agree (as do we) that the section that defines
our jurisdiction in a case such as the instant one is section
6330(d)(1). Accordingly, we begin with that section. Section
6330(d)(1) provides as follows:
SEC. 6330(d). Proceeding After Hearing.--
(1) Judicial Review Of Determination.--The
person may, within 30 days of a determination
under this section, appeal such determination to
the Tax Court (and the Tax Court shall have
jurisdiction with respect to such matter).
- 7 -
In the present case, the “person” in section 6330(d)(1) is
petitioner and the “determination” is the notice of determination
issued by respondent’s Seattle Appeals Office. That
determination was made on Friday, February 29, 2008, the date
stamped on the notice of determination and the date on which it
was sent by certified mail to petitioner. Thus, petitioner was
obliged to “appeal”, i.e., file a petition with this Court,
“within 30 days” of Friday, February 29, 2008. See Rule 331(a)
(providing in relevant part that a levy action under section
6330(d) “shall be commenced by filing a petition with the
Court”). The last date “within 30 days” of Friday, February 29,
2008, was March 30, 2008, but because that date was a Sunday, the
last day to file a petition was instead Monday, March 31, 2008.
See sec. 7503. Therefore, because the petition was neither filed
nor mailed “within 30 days” of the determination, respondent’s
motion must be granted and this case must be dismissed for lack
of jurisdiction.
Petitioner incorrectly interprets certain provisions of Rule
25. A proper application of those provisions yields the same
result as that reached in the preceding paragraph, i.e., that
respondent’s motion must be granted and this case must be
dismissed for lack of jurisdiction.
- 8 -
Rule 25 is concerned with the computation of time. Rule
25(a)(1) sets forth the general rule, and in its entirety
provides as follows:
In computing any period of time prescribed or allowed
by these Rules or by direction of the Court or by any
applicable statute which does not provide otherwise,
the day of the act, event, or default from which a
designated period of time begins to run shall not be
included, and (except as provided in subparagraph (2))
the last day of the period so computed shall be
included. If service is made by mail, then a period of
time computed with respect to the service shall begin
on the day after the date of mailing. [Emphasis
added.]
As applicable to the present case, Rule 25(a)(1) would
dictate that the “within 30 days” period prescribed by the
applicable statute (i.e., section 6330(d)(1)) began to run on
Saturday, March 1, 2008, i.e., the day after the mailing of
respondent’s notice of determination on February 29, 2008. See
Appiah v. Commissioner, T.C. Memo. 1996-170.
Rule 25(a)(1) includes an exception, so we must necessarily
consult Rule 25(a)(2), which deals with weekends (i.e., Saturdays
and Sundays) and holidays. In its entirety, Rule 25(a)(2)
provides as follows:
Saturdays, Sundays, and all legal holidays shall be
counted, except that, (A) if the period prescribed or
allowed is less than 7 days, then intermediate
Saturdays, Sundays, and legal holidays in the District
of Columbia shall be excluded in the computation; (B)
if the last day of the period so computed is a
Saturday, Sunday, or a legal holiday in the District of
Columbia, then that day shall not be included and the
period shall run until the end of the next day which is
not a Saturday, Sunday, or such a legal holiday; and
(C) if any act is required to be taken or completed no
- 9 -
later than (or at least) a specified number of days
before a date certain, then the earliest day of the
period so specified shall not be included if it is a
Saturday, Sunday, or a legal holiday in the District of
Columbia, and the earliest such day shall be the next
preceding day which is not a Saturday, Sunday, or such
a legal holiday. When such a legal holiday falls on a
Sunday, the next day shall be considered a holiday;
and, when such a legal holiday falls on a Saturday, the
preceding day shall be considered a holiday. [Emphasis
added.]
Thus, Rule 25(a)(2) begins with the general rule that Saturdays
and Sundays, as well as legal holidays, are counted in computing
time. See Appiah v. Commissioner, supra. However, Rule 25(a)(2)
sets forth three exceptions to this general rule.
The first exception, embodied in Rule 25(a)(2)(A), is
irrelevant to the present case because the applicable statute,
i.e., section 6330(d)(1), specifies a 30-day period of time to
file a petition. The exception applies only if the period
prescribed or allowed is less than 7 days.
The second exception, embodied in Rule 25(a)(2)(B), is
relevant, but essentially does nothing (in the context of the
present case) other than echo the provisions of section 7503,
which we have already mentioned. See Bass v. Commissioner, T.C.
Memo. 1991-213, affd. without published opinion 976 F.2d 736 (9th
Cir. 1992).
The third exception, embodied in Rule 25(a)(2)(C), is the
exception that petitioner invokes and upon which her objection to
respondent’s motion solely rests.
- 10 -
The rationale for Rule 25(a)(2)(C) appears in the Court’s
Rules Committee Note to the amendment of Rule 25(a) in 1989. 93
T.C. 821, 861. The two pertinent paragraphs of that Note provide
as follows:
Paragraph (a) of Rule 25 is amended in order to
clarify the computation of time when the relevant
period extends back in time from a given point, rather
than forward, and the earliest day of that period is a
Saturday, Sunday, or legal holiday in the District of
Columbia. Thus, for example, Rule 70(a)(2) generally
requires that discovery shall be completed “no later
than” 45 days before the date set for call of the case
from a trial calendar. Similarly, Rule 143(f)
generally requires that an expert witness report be
furnished to the other party and submitted to the
Court “not later than” 30 days before the call of the
trial calendar on which the case appears. So, if a
case had been calendared for trial at a session
beginning on Monday, October 31, 1988, then Rule 143(f)
requires that any expert witness report should have
been served and submitted “not later than” October 1,
1988. However, since that date is a Saturday, Rule
25(a) requires that the report should have been served
and submitted “not later than” the next preceding
business day, or Friday, September 30, 1988. A report
served and submitted on Monday, October 3, 1988, would
therefore have been untimely. [Emphasis added.]
* * * * * * *
Finally, paragraph (a) is amended by restructuring
it into three subparagraphs in order to more clearly
reflect its content.
Thus, it is readily apparent that Rule 25(a)(2)(C)
constitutes a look-back provision that is applicable only when an
act or event must be completed a certain number of days before a
date certain. Accordingly, Rule 25(a)(2)(C) does not apply to
the present case because the statutory period for filing a
- 11 -
petition begins with an Appeals Office determination and extends
forward in time, not back in time.
E. Conclusion
Section 6330(d)(1) requires that we compute the 30-day
filing period starting with the February 29, 2008 determination
and that we necessarily compute that period forward in time, not
back in time. Rule 25(a)(1) specifies that the first day in the
30-day filing period was Saturday, March 1, 2008, i.e., the day
after the mailing of the notice of determination on February 29,
2008. Rule 25(a)(2) provides that Saturdays and Sundays shall be
included in computing time; however, the exception embodied in
Rule 25(a)(2)(B), echoing the provisions of section 7503, makes
clear that the final Sunday, being the 30th and otherwise last
day, should not be counted and that Monday, March 31, 2008,
should instead be the last day of the statutory filing period.
As the petition was both filed and mailed after the expiration of
the statutory filing period, the petition was not timely filed
and this case must be dismissed for lack of jurisdiction. Weber
v. Commissioner, 122 T.C. at 262.
- 12 -
To give effect to the foregoing,
An Order Of Dismissal For Lack Of
Jurisdiction will be entered granting
respondent’s motion and dismissing this
case on the ground that the petition was
not timely filed.