U.S. Tax Court: 90 Days Is 90 Days, Shutdown Or Not

On October 1, 2013, the majority of the U.S. government shut down, including the U.S. Tax Court. Despite the shutdown, the statutory deadline for filing a petition in the Tax Court cannot be extended. Under these circumstances, the mailbox rule is the taxpayer's only hope.

On October 1, 2013, the U.S. government shutdown caused the U.S. Tax Court to close its doors. Under Section 6213(a), however, the 90-day statutory deadline for filing a petition in the Tax Court cannot be extended. During the shutdown, the Tax Court is not accepting hand delivery and likely is not opening its mail. Under these circumstances, the mailbox rule is the taxpayer's only means to ensure that the Tax Court has jurisdiction over the taxpayer's case.

Background

Generally a taxpayer has 90 days from the date of the Statutory Notice of Deficiency or Statutory Notice of Determination to file a petition in the Tax Court. Sections 6213(a); 6330(d)(1). Without a timely filed petition, the Tax Court lacks subject-matter jurisdiction over the taxpayer's case and the taxpayer loses the Tax Court as a forum in which to litigate. The remaining litigation forums require the taxpayer to pay the disputed tax, penalties and interest and sue for refund.

Barring the government shutdown, a taxpayer can file the petition either by mail or by hand delivery. Tax Court Rules of Practice and Procedure (Rule) 26 (establishing rules for electronic filing and specifically exempting "petitions and other papers not eligible for electronic filing"); Rule 34 ("the signed original of each petition is required to be filed"). A statutory filing requirement generally can be satisfied only by actual physical delivery to the government—a principle commonly called the "physical delivery rule." United States v. Lombardo, 241 U.S. 73, 76 (1916). When the Tax Court receives a petition prior to the 90th day, the physical delivery rule is satisfied. However, if the petition is received after the deadline, the taxpayer must look to the common-law "mailbox rule" and the statutory "postmark rule" of Section 7502 to determine if it has satisfied the physical delivery requirement. The Tax Court Rules of Practice and Procedure expressly reference Section 7502, stating that "In all cases, the jurisdiction of the Court also depends on the timely filing of a petition. See Code sections 6213 and 7502." Rule 13(c).

Under the common-law mailbox rule, when a taxpayer offers evidence that it sent documents to the government (e.g., the Internal Revenue Service or Tax Court) in a properly addressed and stamped envelope through the U.S. Postal Service, courts will presume that the documents were received within the customary time for mail...