*27 COLVIN, J., agrees with this dissenting opinion.
R mailed to P a notice of deficiency which failed to
provide a date in the section entitled "Last Day to File a
Petition With the United States Tax Court" (i.e., the petition
date). Although P received the notice within several days of its
mailing, P did not file his petition with this Court until 56
days after expiration of the 90-day period prescribed by sec.
HELD: R's failure to provide the petition date in
accordance with
Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat.
685, 767, does not render the notice of deficiency invalid.
HELD, FURTHER, P's petition is not rendered timely by the
operation of the last sentence of
*356 OPINION
VASQUEZ, JUDGE: Respondent determined the following deficiencies in Federal income tax and section 6662(a) accuracy- related penalties:
Penalty
_______
Year Deficiency Sec. 6662(a)
____ __________ ____________
1995 $ 229,096 $ 45,819
1996 34,549 6,910
*357 This case is before the Court on the parties' cross-motions to dismiss for lack of jurisdiction. Petitioner has moved for dismissal in his favor on the ground that respondent's notice of deficiency is invalid. Respondent moves for dismissal in his favor on the ground that the petition in this case was not timely filed. A hearing was held with respect to these motions on February 5, 2001.
Unless otherwise indicated, all section references are to the Internal Revenue Code as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.
BACKGROUND
Petitioner resided in Austin, Texas at the time the petition*29 in this case was filed. Petitioner is an attorney who performed legal services in the Dallas, Texas, area during the years at issue. The facts necessary to decide the motions are few, and they are based on the parties' stipulations.
On July 20, 1999, respondent sent petitioner a notice of deficiency via certified mail. 1 The notice was sent to petitioner's last known address in Austin, Texas. Although the exact date of delivery cannot be ascertained from the U.S Postal Service delivery receipt, the parties agree that petitioner received the notice of deficiency on or about July 23, 1999.
After the heading "Date" located in the upper right corner of the notice of deficiency appears a stamped date of July 20, 1999. Also in the upper right corner of the notice of deficiency appears a heading entitled "Last Day to File a Petition With the United States Tax Court". *30 The space immediately following this heading is blank, and nowhere else within the notice does the Commissioner provide the specific calendar date on which petitioner can last timely file a petition with this Court. The body of the notice of deficiency does, however, contain the following passage regarding the timing considerations for filing a petition with this Court:
If you want to contest this deficiency in court before
making any payment, you have 90 days from the above mailing date
of this letter (150 days if addressed to you outside of the
United States) to file a petition with the United States Tax
Court for a redetermination of the deficiency. * * * The time in
which you must file a petition with the Court (90 or 150 days *358 as
the case may be) is fixed by law and THE COURT CANNOT CONSIDER
YOUR CASE IF YOUR PETITION IS FILED LATE.
Petitioner mailed his petition to the Court on December 10, 1999, and the petition was received on December 13, 1999. The parties have stipulated that these dates are 143 and 146 days after the mailing of the notice of deficiency, respectively.
DISCUSSION
There are two prerequisites*31 to this Court's jurisdiction to redetermine a deficiency: (1) The issuance of a valid notice of deficiency by the Commissioner; and (2) the timely filing of a petition with the Court by the taxpayer. See
Petitioner contends that the notice Of deficiency issued by respondent is invalid on account of its failure to specify the last possible date on which petitioner*32 could file a timely petition with this Court (the petition date), as required by
*359 (a) In General. -- The Secretary of the Treasury or the
Secretary's delegate shall include on each notice of deficiency
under
determined by such Secretary (or delegate) as the last day on
which the taxpayer may file a petition with the Tax Court.
(b) Later Filing Deadlines Specified on Notice of
Deficiency To Be Binding. -- Subsection (a) of
(relating to restrictions applicable to deficiencies; petition
to Tax Court) is amended by adding at the end the following new
sentence: "Any petition filed with the Tax Court on or before
the last date specified for filing such petition by the
Secretary in the notice of deficiency shall be treated as timely
filed.".
(c) Effective Date. -- Subsection (a) and the amendment
made by subsection (b) shall apply to notices mailed after
December 31, 1998.
Petitioner notes that the Commissioner's obligation to provide the petition date in the notice of deficiency is described in mandatory terms. Petitioner argues that respondent's failure to provide the petition date as required renders the notice invalid.
We recently addressed
Unlike the taxpayer in Smith, petitioner did not file his petition within the 90-day period prescribed by
Although the notice of deficiency failed to provide the petition date, the notice was by no means devoid of information regarding the time frame in which petitioner had to file his Tax Court petition. The notice clearly stated that the petition had to be filed within 90 days of the mailing of the notice. In addition, the necessity of filing a timely petition was emphasized in underscored type.
Furthermore, petitioner was not prejudiced by the respondent's*36 failure to specify the petition date in the notice. The legislative materials accompanying
Present Law
Taxpayers must file a petition with the Tax Court within 90
days after the deficiency notice is mailed (150 days if the
person is outside the United States)(
is not filed within that time period, the Tax Court does not
have jurisdiction to consider the petition.
Reasons for Change
The Committee believes that taxpayers should receive
assistance in determining the time period within which they must
file a petition in the Tax Court and that taxpayers should be
able to rely on the computation of that period by the IRS.
*37 Explanation of Provision
The provision requires the IRS to include on each
deficiency notice the date determined by the IRS as the last day
on which the taxpayer may file a petition with the Tax Court.
The provision provides that a petition filed with the Tax Court
by this date is treated as timely filed.
*361 S. Rept. 105-174, at 90 (1998),
Petitioner concedes that his petition was filed outside the filing period set forth in the first sentence of
Assessment. -- Within 90 days, or 150 days if the notice is
addressed to a person outside the United States, after the
notice of deficiency authorized in
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. Except as
otherwise provided in section 6851, 6852, or 6861 no assessment
of a deficiency in respect of any tax imposed by subtitle A or
B, chapter 41, 42, 43, or 44 and no levy or proceeding in court
for its collection shall be made, begun, or prosecuted*39 until
such notice has been mailed to the taxpayer, nor until the
expiration of such 90-day or 150-day period, as the case may
be, nor, if a petition has been filed with the Tax Court, until
the decision of the Tax Court has become final. * * * ANY
PETITION FILED WITH THE TAX COURT ON OR BEFORE THE LAST DATE
SPECIFIED FOR FILING SUCH PETITION BY THE SECRETARY IN THE
NOTICE OF DEFICIENCY SHALL BE TREATED AS TIMELY FILED. [Emphasis
added.]
In his petition and his objection to respondent's motion to dismiss, petitioner argues that the last sentence of
*40 Respondent does not address at length the merits of petitioner's argument described above. Rather, respondent simply denies that the last sentence of
We begin our analysis with the actual text of the provision in dispute. The relief offered by the last sentence of
Petitioner argues that where the petition date is not specified by the Commissioner in the notice of deficiency, the condition to relief under the last sentence of
Respondent's position finds further support in the legislative history behind the amendment to
The theory of detrimental reliance assumes the actual provision of misleading information upon which a party could rely. This case, however, does not involve the provision of misinformation. Although petitioner appears to argue on brief that the failure to provide the petition date in the notice led him to believe that he did not have to file his petition within the 90-day period, 4 we find such argument implausible. As discussed above, the notice of deficiency issued to petitioner clearly provided that his petition had to be filed within 90 days of the mailing of the notice, and it emphasized the consequence of not doing so. We do not believe that a reasonable person, let alone one with petitioner's legal training, would interpret the mere absence of a stamped petition date following the heading "Last Date to File a Petition With the United States Tax Court" as the grant of an unlimited filing period, particularly given the express provisions to the contrary contained in the*43 body of the notice. Simply put, this is not a case of taxpayer prejudice which Congress intended to rectify through the addition of the last sentence of
In light of the text of the last sentence of
The notice of deficiency issued by respondent*44 is valid, and petitioner failed to file a timely petition with this Court. Accordingly, petitioner's motion to dismiss for lack of jurisdiction will be denied, and respondent's motion to dismiss for lack of jurisdiction will be granted.
To reflect the foregoing,
An appropriate order denying petitioner's motion to dismiss for lack of jurisdiction and granting respondent's motion to dismiss for lack of jurisdiction will be entered.
Reviewed by the Court.
WELLS, COHEN, GERBER, RUWE, WHALEN, HALPERN, BEGHE, LARO, and THORNTON, JJ., agree with this majority opinion.
CONCURRENCE OF JUDGE BEGHE
BEGHE, J., CONCURRING: My impression is that it was due to mere inadvertence, a ministerial omission, that respondent's employees charged with the responsibilities of preparing and sending the notice of deficiency failed to stamp the date for filing the petition at the appropriate space provided on the notice form; it was not with the intention of flouting the expressed will of Congress. After all, the Commissioner has redesigned the statutory notice form so that it provides a space for stamping the date by which the petition must be filed; the vast majority of the statutory notices*45 that are issued bear the requisite date stamp, and nothing we say or do in the majority opinion encourages the Commissioner to be less than diligent in his continuing efforts to achieve 100-percent compliance with the Congressional mandate.
It's also my impression, consistent with the majority's inference that there was no detrimental reliance or confusion on petitioner's part, that he decided to file the petition more than 90 days after issuance of the notice with a view to testing its validity. Since petitioner, a member of the bar, chose not to testify in the hearing on the cross-motions, I'm comfortable in making this inference. See
I agree with the majority and Judges Foley and Swift that the statute, despite its imperative mood and lack of a savings provision like the second sentence of section 7522(a), doesn't require us to invalidate the notice. To invalidate the notice would impose a disproportionately severe sanction against the fisc. Any impression created by the Commissioner's occasional mistake, evidenced by this case, *46 and by
Having expressed agreement with the majority's upholding of the notice, what should we do with the petition, in*47 the absence of any argument of detrimental reliance or any evidence of petitioner's confusion? The Court's response to a somewhat analogous situation in
I join the majority in answering the question in the negative in this case. Because petitioner has failed to dispel the impression that the late filing of his petition was a product of his conscious resolve to test the validity of the notice, or even to allege that he was confused by the notice, I don't believe he's entitled to a ticket of admission to the Tax Court. I'm therefore comfortable in making our usual comment that he's not without a remedy -- he can pay the deficiency, and claim and sue for a refund, see, e.g.,
All this leaves for another day the question of what to do with the case of a late filing pro se lay petitioner, who might be suffering from cognitive deficit, dyscalculia, or other disability. The resulting residual uncertainty about what we would do in such a case should help to stiffen the Commissioner's resolve to achieve 100-percent compliance in the future.
DISSENT OF JUDGE CHABOT
CHABOT, J. DISSENTING: The Congress decided that, if the Commissioner sent a notice of deficiency to a taxpayer, then the taxpayer should have help in determining the last date for petitioning this Court. The Congress decided to charge the Commissioner with the task of providing this help. The Congress decided to effectuate the foregoing by enacting that the*49 Commissioner "SHALL include on EACH notice of deficiency" (emphasis added) the last date for petitioning this Court.
The majority's opinion may be read to permit, or perhaps even encourage, the Commissioner to ignore the obligation of the statute, with no consequences except (1) where the taxpayer was misled and detrimentally relied on the misleading interpretation, or (2) perhaps where the taxpayer filed the "petition just after the expiration of the [statutory] filing period".
From the foregoing, I dissent.
I. "SHALL"
When used in a statute, the word "shall" is ordinarily a word of command. See
Neither the context of the statutory provision nor its legislative history indicates that, in
*51 I would hold that
II. "EACH"
*368 As the majority's opinion notes, the Congress concluded that some taxpayers need assistance in determining the deadline for filing a timely petition. However, the enacted statutory language and legislative history do not indicate that the Commissioner is obligated to provide the required assistance only to those who need it, or who might reasonably be expected to need it. Rather, the Congress imposed the statutory obligation with respect to each notice of deficiency.
It is not at all unusual for the Congress to act more broadly than the confines of the problem described in the legislative history; the Congress has done so in many different areas of the tax law. See, e.g.,
The legislative history does not explain why the Congress chose to use statutory language that is broader than the problem it sought to address. However, it is plain that the Congress required the Commissioner to provide assistance on each notice of deficiency, and not merely where the assistance was, or might be, needed. We may speculate that the Congress so acted in order to simplify the Commissioner's obligations, by not requiring the Commissioner to make case-by-case*53 determinations. It is possible, of course, that the Congress decided to avoid case-by-case determinations on the part of the Commissioner, and yet require or permit the Court to make such determinations. This seems to be contemplated in the majority's opinion, see supra p. 13 note 5, and is stated in Judge Swift's dissent, see infra p. 28. However, I do not find evidence of such a distinction in either the statute or the legislative history.
*369 In any event, it is clear that the Congress required the Commissioner to provide the filing date deadline information on each notice of deficiency, a rule broader than the problem that gave rise to Congress' concern.
III. THE SHOTGUN BEHIND THE DOORIn
Thus, the Congress specifically provided a consequence to the Commissioner's failure to comply CORRECTLY. But, the majority in the instant case hold, there is not any consequence to the Commissioner's failure to comply AT ALL. Not only is there not any consequence provided for in
The majority's construction "offends the well-settled rule of statutory construction that all parts of a statute, if at all possible, are to be given effect."
We can interpret the*56 statute so as to make it "work", and we can do so without arrogating to this Court the authority to make line-drawing decisions that normally are regarded as being within the province of the Congress.
Although invalidation of the notice of deficiency may provide a windfall to some taxpayers, such windfalls are*57 wholly within the power, and it may be, the technology, of the Commissioner to eliminate entirely.
Invalidating the notice of deficiency under these circumstances may be regarded as legislating, but --
We often must legislate interstitially to iron out
inconsistencies within a statute or to fill gaps resulting from
legislative oversight or to resolve ambiguities resulting from a
legislative compromise. [
Invalidating the notice of deficiency is consistent with the statutory scheme; it will put the shotgun back behind the door.
*371 We have on other occasions refrained from such interstitial legislation and left the statute with meaningless provisions. But we have done so only reluctantly, and after making substantial efforts to give effect to all the statutory language; and we have acknowledged when our efforts failed. See, e.g.,
*59 The majority's holdings in the instant case make part of the statute meaningless. There is a way to give effect to the entire statute, and to do so within our normal range of powers and in a way that is not likely to lead us into difficult interpretative and practical problems. The majority reject that approach.
Respectfully, I dissent.
GALE and MARVEL, JJ., agree with this dissenting opinion.
DISSENT OF JUDGE SWIFT
SWIFT, J., DISSENTING: I generally agree with the analysis set forth in Judge Foley's dissent and with his suggested conclusion that the petition herein be treated as timely.
In this case, however, I would not conclude, as a matter of law, that respondent's failure to provide in the notice of deficiency the specific due date for filing a Tax Court petition automatically provides the taxpayer an unlimited period of time to do so. Respondent's failure to provide the due date should extend the deadline for the filing of a Tax Court petition for a reasonable period of time based on the facts and circumstances of each case and based on the intent and conduct of the taxpayer.
*372 In the current case there is no evidence of intentional mischief by petitioner, and -- in the*60 realities of the business world -- 56 days (including weekends and holidays), particularly in the absence of a due date provided by respondent, is but a blink. Herein, I would conclude that the petition is timely.
DISSENT OF JUDGE FOLEY
FOLEY, J., DISSENTING: In
The plain language of the statute provides that the IRS must determine a date; this date may establish a deadline that is later than the statutorily prescribed 90-day period; and petitions filed on or before the deadline established by the IRS shall be treated as timely filed. Respondent's failure to provide any specified date is tantamount to providing that there is no deadline. Accordingly, the petition is timely.
The majority asserts that "Respondent's position finds further support in the legislative history". Majority op. p. 11. Again, I disagree. Assuming arguendo that the statute is not clear on its face, the legislative history, on the contrary, bolsters petitioner's contention. In setting forth the rationale for the amendment to
Moreover, I believe the IRS provided misleading information to petitioner. While the text of the notice states that "you have 90 days from the above mailing date of this letter * * * to file a petition", the space in the upper right corner of the notice, entitled "Last Day to File a Petition With the United States Tax Court", is blank. This notice*63 is more confusing than notices issued under prior law and creates the type of confusion that Congress intended to remedy.
The IRS made a mistake and did not follow the congressional mandate, and, as a result, the petition should, pursuant to
COLVIN, J., agrees with this dissenting opinion.
Footnotes
1. The notice of deficiency was also mailed to Tom Gilbert, a certified public accountant listed as petitioner's representative under a power of attorney.↩
2.
Sec. 3463(a) of the Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat. 685, 767, has not been incorporated as a provision of the Internal Revenue Code. Nonetheless, this provision has the force of law. SeeSmith v. Commissioner, 114 T.C. 489">114 T.C. 489 , 491 (2000); see alsoUnited States Natl. Bank v. Independent Ins. Agents of Am., Inc., 508 U.S. 439">508 U.S. 439 , 448, 124 L. Ed. 2d 402">124 L. Ed. 2d 402, 113 S. Ct. 2173">113 S. Ct. 2173↩ (1993) (stating that an uncodified provision shall have the force of law as long as the provision is in the Statutes at Large).3. Petitioner's argument, if accepted, would afford taxpayers who receive a deficiency notice lacking the petition date with an unlimited time period in which to timely file their Tax Court petitions. We note that the existence of an unlimited filing period could produce uncertainty as to (a) the ability of the Commissioner to assess the determined deficiency given the restriction contained in the second sentence of
sec. 6213(a) , and(b)↩ the tolling of the period of limitations on assessment provided by sec. 6503.4. Petitioner's specific argument reads as follows: "Petitioner received the notice of deficiency, but did not file a Petition with the Tax Court within 90 days from the date of the notice of deficiency, since the notice of deficiency did not specify the last date on which Petitioner could file a Petition."↩
5. We do not address in this opinion the situation in which a taxpayer receives a deficiency notice omitting the petition date and files his petition just after expiration of the filing period set forth in the first sentence of
sec. 6213(a)↩ due to the taxpayer's miscalculation thereof.1. See, e.g., 2 Audit, Internal Revenue Manual (CCH), sec. 4.3.19.1.8.2, at 7712 (statutory notice letter must include the last day taxpayer can file petition with Tax Court); 2 Audit, Internal Revenue Manual (CCH), Exhibit 4.3.19.1-2, at 7748 (form of deficiency notice cover letter, as revised in 1999, includes heading "Last Day to File a Petition With the United States Tax Court:"); 2 Audit, Internal Revenue Manual (CCH), sec. 4.3.19.1.6.3, at 7709 (issuer of deficiency notice must enter "Last Day to File" date in the form letter).↩
1. In
United States v. Olympic Radio & Television, 349 U.S. 232">349 U.S. 232 , 236, 99 L. Ed. 1024">99 L. Ed. 1024, 75 S. Ct. 733">75 S. Ct. 733 (1955), the Supreme Court instructed as follows:It may be that Congress granted less than some thought or less
than was originally intended. We can only take the Code as we
find it and give it as great an internal symmetry and
consistency as its words permit. We would not be faithful to the
statutory scheme, as revealed by the words employed, if we gave
"paid or accrued" a different meaning for the purposes of
section 122(d)(6) [
I.R.C. 1939 ] than it has in the other partsof the same chapter.
To the same effect see
Commissioner v. Keystone Consol. Industries, Inc., 508 U.S. 152">508 U.S. 152 , 159, 124 L. Ed. 2d 71">124 L. Ed. 2d 71, 113 S. Ct. 2006">113 S. Ct. 2006↩ (1993).2. The House Legislative Counsel's Office's style manual instructs legislative drafters as follows:
(4) Use same word over and over. -- If you have found the
right word, don't be afraid to use it again and again. In other
words, don't show your pedantry by an ostentatious parade of
synonyms. Your English teacher may be disappointed, but the
courts and others who are straining to find your meaning will
bless you.
(5) Avoid utraquistic subterfuges. -- Do not use the same
word in 2 different ways in the same draft (unless you give the
reader clear warning).↩
3. See, e.g.,
Barkins v. International Inns, Inc., 825 F.2d 905">825 F.2d 905 , 907↩ (5th Cir. 1987) ("waiting until the expiration of the limitations period to point out an error recognizable well before").4. See
Silver v. New York Stock Exchange, 373 U.S. 341">373 U.S. 341 , 352, 10 L. Ed. 2d 389">10 L. Ed. 2d 389, 83 S. Ct. 1246">83 S. Ct. 1246↩ (1963).6. In
Adams v. Commissioner, 72 T.C. 81">72 T.C. 81 , 92 n.16 (1979), we stated as follows:It was not without considerable deliberation and thought
that our decision herein was reached. We can certainly
appreciate Congress' desire to eliminate the potential for abuse
inherent in dealings with tax-exempt organizations. Also, we
are not unaware of the difficulty in drafting legislation which
will equitably dispose of a variety of factual settings.
Regrettably, however, when considering all the potentially
viable alternatives available to assist us in implementing the
statute, we were consistently confronted with another statute or
well-established rule of law which prevented our reaching a
satisfactory resolution of the problems discussed herein.↩