Even Judge Daniel Collins seemed to feel a bit down, opening the unanimous opinion by saying "This unhappy case presents a cautionary tale about the
need for lawyers to ensure that they have done exactly what
is statutorily required to invoke a court’s jurisdiction."
In fact, the rest of that opening paragraph is also worth reading:
The unusual Internal Revenue Code (“I.R.C.”) provision at issuehere allows taxpayers to benefit from a “mailbox” rule—i.e.,that a document will be deemed filed when dispatched—only if the taxpayer uses one of the particular deliveryservices that the Internal Revenue Service (“IRS”) hasspecifically designated for that purpose in a publishednotice. In preparing two Tax Court petitions for filing, theattorneys here delegated the task of arranging delivery to asecretary who, unfortunately, selected an overnight deliveryservice that was not then on the published list (it was addedtwo weeks later). The error would not have mattered if thepetitions had nonetheless arrived the next day, but as itturned out, they were not received by the Tax Court until twodays after being dropped off at a FedEx office in California.Because the Tax Court concluded that the petitions had notbeen timely received and that the mailbox rule did not apply,it dismissed the petitions for lack of jurisdiction. Finding noerror, we affirm.
That's right. The secretary chose FedEx First Overnight delivery. FedEx did not deliver it to the Tax Court in Washington, D.C. on the deadline day - they indicated that the driver was somehow unable to reach the Tax Court's door because of police action, construction, or something. FedEx created a new shipping label and delivered it the next day.
The IRS - in a surprise to probably noone - waited 15 months to move to dismiss the appeal as untimely filed. To make matters even more harsh, the IRS approved FedEx First Overnight as an approved courier service two weeks after the delivery snafu; if the approval was 15 days earlier, the appeal would have been marked as timely!
Nevertheless, the 9th Circuit found no basis for allowing the dispensaries' appeal, and the $2M tax determination stands.
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(Yes, this was just an elaborate excuse to post that song from my youth.😜 )
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