Charlson Realty Company v. The United States

along runs, plurality the side located rection of the a ment terminals cable net, cor- at an external at the each located load attachment terminals located parallelogram runs, peripheral each of said ner of a inside cable ends of portion having loop being of cable ends each a connected to the terminals swaged fitting whose lon- the external corner formed a two runs of cable at gitudinal direc- in a peripheral parallelogram. axis lies transverse of a swaged fittings respect tion with to the according to 2. A net construction in- points of the the corner which form attachment load each 1 wherein claim parallelogram. side portion looped of cable a terminal has fitting. swaged by a formed flex- from constructed 3. A net device gener- including plurality of a cable ible cable, run each longitudinal ally runs of zig-zag

extending when fashion in- open position, each net mesh is adjacent being attached to terior run points a spaced at run on one side being fitting point

swaged each adjacent similarly run attached to the REALTY CHARLSON COMPANY alternately spaced points other side parallelograms with to form a series The UNITED STATES. relationship diagonal lying their sides No. 388-62. longitudinal respect direction with fittings swaged device, of the net said United States Court Claims. having longitudinal lying in axes their Oct. longitudinal cable direction of the runs, plurality ter- load attachment two

minals each located at the ends runs,

inside of said terminals cable each

being external corner connected at peripheral parallelogram,

of a the sides being provided of the net also with terminals,

plurality of load attachment corner of a

each located at an external

peripheral parallelogram.

4. A new device constructed including plurality

flexible cable cable,

generally longitudinal runs extending zig-zag

each run fashion open position,

when the net mesh being each interior run attached to adjacent spaced points run on one side at swaged fitting point at each being similarly adjacent attached alternately run on the other side at spaced points parallel- form a series of

ograms lying diagonal with their sides

relationship respect longi- device, tudinal direction net said swaged fittings having longitudinal their longitudinal lying Durfee, JJ., Davis, Laramore, axes direction of runs, plurality the cable of load dissented. attach- Paul, Minn., Hayes, Lawrence J. St. Maun, Paul, plaintiff. Joseph for St. A.

Minn., Maun, Hazel, attorney of record. Green, Aretz, Paul, Hayes, Simon & Minn., of counsel. Togman, Washington, Leonard D. S. Gen.,

C., Atty. with whom was Asst. Philip Rogovin, Mitchell defendant. for Miller, Joseph Kovner, R. J. and Norman Hoffman, Jr., Washington, C.,D. of coun- sel. JONES, COWEN, Judge, Before Chief Judge, LARAMORE, DURFEE,

Senior DAVIS, NICHOLS, SKELTON and Judges. net tax- Judge, disclosed SKELTON, 1955. This return announced $10,139.63 net tax opinion in with a judgment able income of in an of the court duly paid Judge, $3,041.89. tax was WEN, due of This Chief which CO Reve- Internal JONES, Judge, joined: to the District Director of Senior July 15, The In- nue about plain- case. tax income This anis de- ternal Revenue assessed Service Min- Realty Company, ais tiff, Charlson against ficiency in income tax for 1955 purchased 14.25 corporation which nesota $12,500, in the amount of unimproved in Minnesota land acres of together $3,- with interest sum $40,000, sum of April 27, 453.94, the basis for was its claim constructing a build- purpose of for the the 14.25 acres of land had a fair Charlson-Lynn leased to to be February 10, $90,000 market value of bought grantor (its Company plain- the date it sold $10,650). real estate in $40,000, tiff sale re- Thereafter, determined it sulted in a distribution of a taxable divi- improve- property for not suitable plaintiff’s president dend to and sole of cer- purposes because ment for rental shareholder, Lynn L. Charlson. fur- rea- zoning and other restrictions tain plaintiff ther contended that realized a inter- plaintiff was not sons. Since gain $50,000 taxable of reason of the re- developing property for ested in sale, though no amount of excess prop- others, sold sale or lease to it $40,000 its cost of was ever February erty Mabelle on plaintiff. realized Charlson, F. and Harriet C. Charlson Charlson, Lynn also as- L. The Revenue mother and sister of Internal Service against deficiency president of income tax sole stockholder sessed a $40,- Lynn plaintiff company, plaintiff’s president, of L. for sum Charlson subject wife, note in of evidenced their demand is now which company. litigation payable Court in the United Tax amount States alleges any way in this plaintiff The the fair market and is involved property of sale value of on suit. prior thereto was in excess of plaintiff paid the Internal Reve- $40,000, and the the note value of which tax nue said additional income Service property it received for not less $12,500 interest in the sum $40,000.

than February $3,453.94, respectively, on I960, 8, 1960, plaintiff filed constructed Thereafter, purchasers On March building at a a claim additional tax the land for refund such on 4.5 acres required and interest $268,323.18 sold which it had and thereafter cost of pay 9.5 with the Revenue $356,460.63. The Internal Service. it for balance assigned plaintiff In such purchasers claim the acres was sold ground alleges' upon $103,585.67. plaintiff which the claim was any plaintiff based the fact in said had not no interest of kind had any gain improvements realized property made sale 14.25 $40,000, acres land for sold 14.25 acres for and that thereto after February 10, $40,000 Commissioner of 1955. Further- on Internal Revenue was wrong finding more, developing plaintiff had it was not interested gain property lease, $50,000 realized a net for resale or and dur- on the sale. years 1954 and had no in- refund was While the first claim for any formation nature that said 14.25 pending, action still and before unimproved acres land had a value in by the Internal Reve- been taken thereon $40,000 excess of the for which it was July Service, plaintiff, nue sold. for refund filed an amended claim 15, 1955, July plaintiff deficiency $12,500 On or about of said assessment Corporation filed $3,453.94. its Income Tax Return and interest the sum year ending April for its fiscal taxable This amended claim contained various two-pronged made a grounds The defendant has claim was specific which such jurisdictional plaintiff’s case on attack on in the not contained

based which were claiming limitations, grounds based claim, discussed first of which will all following within para- plaintiff filed its suit has not in more detail years date its claim two from the graphs. by the District Di- fund disallowed pending, both of the claims were While Service rector of Revenue Internal of Internal Reve- Director the District place, required law. In the first noti- for the District of Minnesota nue plaintiff’s first defendant contends that mail, plaintiff by dated fied certified claim refund and its second claim for September 21, 1960, disallowance the second for refund were identical and claim filed March the first anything the first add claim did not Direc- On December the District it, repetition mere claim but was a and, by plaintiff tor notified certified thereof, reason plaintiff’s second that he had disallowed second claim did not extend the July for refund claim had filed plaintiff of limitations within which 25, 1960. theory, could file de- suit. On says fendant was re- for said suit filed years quired to file its suit two $15,- within in the total sum interest tax and September 21, 1960, the date the upon thereon, based 953.94, plus interest District Director of Revenue Internal refund and plaintiff’s claim for second plaintiff’s first Service disallowed the by the District thereof the disallowance petition claim. Plaintiff’s was marked answer filed an The defendant Director. filed in this cause on December denying generally petition plaintiff’s theory, plaintiff’s On this suit would allegations assert- and thereof the basic However, plaintiff barred. contends that this suit affirmative defense an that second claim for refund was an by Internal is barred Section entirely new and claim from different because it Revenue Code claim, the first and filed years that it its suit expiration begun of two after the years within two after the Di- mailing District notice of date of of a from the rector disallowed its second claim for claim disallowance of to which 6, 1960, refund on December notwith- Thereafter, on December suit related. standing file date marked on the 13, 1963, motion defendant filed a petition. plaintiff’s If alleging contention is cor- judgment summary for rect, jurisdiction this court has to de- timely plaintiff’s petition filed. was not particu- termine this suit insofar as this opposed Plaintiff motion for defendant’s jurisdictional ground lar hearing is concerned. summary judgment, and, after These claims and by theories will be further argument, court, en- oral order developed subsequent paragraphs in May 18, 1964, mo- tered on denied said opinion. prejudice” tion referred “without and the case to the commissioner back trial ground jurisdictional as- The second “investigate report with directions to by defendant relates to serted plaintiff’s petition, toas petition plaintiff’s time when by handling petition of the mailed says by The defendant this court. ceived Department, receipt Post Office and the shows file mark on the filing in this court.” filed on December it was complied commissioner with has whereas, required be filed no it was directions of the court and has made his con- later than December it report jurisdictional on one is- plaintiff’s suit ceded that the basis by sue raised the defendant. Defendant plaintiff’s second the disallowance of summary judg- renewed its motion for by Director claim for refund the District ment in its filed briefs commis- words, 6,1960. In de- on other December report sioner’s and the case is before now filed suit was that the court on fendant contends such motion. by accordingly, with Clerk barred commenced late, and, one conforming require- to the two-year limitations by statute 12 and and Rule ments this rule kind. for suits of this required paying fee allegations him the mailed counters with Minnesota, Paul, Rule 84. petition from envelope prop- 30, 1962, in an November plain- contends The defendant sealed, stamped erly and addressed the two- within its suit file tiff did C., Washington, D. Clerk of this Court required period year limitation it ar- of the mails due course urges ju- the two foregoing statute or 4th rived the court December limitations grounds based risdictional 5th, 1962, any case, December On mentioned. heretofore two-year day of the last has hand, insists plain- period of limitations within compliance the stat- suit in filed tiff could file suit. jurisdic- and that ute of limitations alleged defendant grounds tional I the facts applicable to are not case. Limitations Statute of II necessary outset, us for

At to determine the plaintiff’s tion Act plicable sented Code of statute of nent inafter (26U.S.C. taxpayer of a ternal the 7422(a) sum, ance of the (a) Section 6532 of the Internal ^[******] 89(b) (1) General rule. part mailing by the suit expiration Suits No suit shall be sometimes 1954, which, revenue Secretary this case as follows: suit § of the Technical Amendments limitations”), for * * * 6532(a) P.L. part the taxpayers of limitations of 2 certified mail primary questions begun notice * tax, 85-866, or his begun as referred recovery ** years (1) (1964)), relates. to whether penalty, amended * * * reads claim to which delegate for refund. within 72 Stat. from the date under section the disallow- set forth in or other Revenue * * * any (here- to the perti- after “the pre- Sec- ap- in- which was paid copied tiff’s but claim was that the second of land for namely by first Both claims contain recovery Revenue had $90,000 the amount facts, grounds is a are interest We will Both claims those contained plaintiff as a basis gain identical, separate claim for The Two Claims claim, first and and the thereon in the the on the sale alleged by the Commissioner quoted $40,000 on the and second now claim. tax of land, because wrongfully realized or whether involve exact amount taxpayer consider had sold and that from the $12,500, theories the plaintiff containing different of this such the first claim. February 10, the same on claims for sum of grounds determined thereby whether the second the it had grounds were together with refund first Refund of Internal real in the ground 14.25 $3,453.94. sale amounts, set recovery claim realized realized refund estate, it had in plain- forth acres 1955, first was one the for in gain $50,000 of the on sale net Rule of1 the Rules of the United deficiency resulting property, in the thus Claims, States Court of as revised De- together assessment, there- interest with 2, 1957, cember was effect at on. case, provided all times material to this refund, for pertinent claim part second as follows: setting hand, in addition to forth op Rule grounds first 1. Commencement Suit contained in the the above (a) Filing claim, alleged fee —A other and different and various suit recovery. grounds In United for States Court of and theories Claims shall 440 having alleged claim plaintiff the second claim, and the second 1955, 25, July during 1960. filed and no time 1954 that at property time sale nor at the repe mere not a claim was second 1955, property have February did the claim, based tition of first $40,000; in excess of a fair market value therefore, grounds, and, upon con new 1955, February 10, and after separate which is entitled stitutes a claim taxpayer in- sale, had no independent reference treatment property any terest kind According to the statute limitations. Also, improvements thereto. made ly, commenced limitation taxpayer alleged it was claim run from the date second property developing interested in namely, disallowed, December during years lease, 1954 resale or file was entitled to any na- no information and 1955 had including up December suit to and property ex- had a value in ture that 6, 1962. First Nat’l Pictures See $40,000. The claim fur- cess of second States, F.Supp. 138, United 91 Ct.Cl. that, any event, ther if there stated (1940); Nichols, Mills Pacific gain taxpayer, to the it should 1934); (1st F.2d 103 Cir. and Hills v. be taken into account as income for States, United 50 F.2d 73 Ct.Cl. 128 year year and not The defendant relies on the alleged Plaintiff also the Internal cases of B. Altman & Co. merely Revenue Service had assumed that States, (1930), 40 F.2d 69 Ct.Cl. 721 gain $50,000 had made a denied, cert. U.S. sale, which was erroneous with- 763; Ragan-Malone 75 L.Ed. Co. support out in fact. It was further F.Supp. 93 Ct.Cl. taxpayer par- claimed that did not (1941), import. and cases of like ticipate making improvements pointed should be out the cases subsequent sale, said land and did distinguished cited defendant can be anything subsequent not realize from the present on the facts from the In case. property by purchasers sale of the case, the Altman when the claim second improved, after it had been and that filed, taxpayer’s time to sue had any gain was realized owners already lapsed by Also, limitation. property when it was sold them in identical, claims there were and the sec gain such is taxable income to them repetition ond was a mere of the first. plaintiff. The second Ragan-Malone Co. v. United requested claim also a conference on the supra, plain action asserted grounds set forth in the amended claim tiff was filed in an amended grounds refund. None of these years payment tax, eleven recovery theories of were set forth in the only where years permitted, five and first claim. years nine rejection claim, after years when permitted. two The It is the view of this court clearly suit barred limitations. separate are two claims and distinct The fact that claims ask for both alleges and that the second claim and as amount not of refund does make facts, grounds, serts and theories for re the two claims one and same. First covery different from those set forth in States, supra. Pictures v. United Nat’l Furthermore, the first claim. the second plaintiff claim was filed while the present the District In the pending first claim was and before re did of Internal Revenue Director action had been taken thereon filed, claim to be the second fuse to allow District Director and less than six filed it and thereafter received and but

months after paid the addi it, rejected all the claim and considered tional interest, income tax and the tax he considered indicates that of which having and paid February interest first claim. different from the to be

441 ounces, properly addressed to the period less half within This was done C., Washington, paid D. year Clerk of this Court than one postage placed on cents of which was 55 interest. taxes and the additional Paul, stamps, post Nichols, office in supra, case of Pacific Mills v. Friday, Minnesota, at about 3:00 P.M. on authority proposition if for the 30, November 1962. There were sec- the District Director entertains markings envelope adversely on indicate that to the ond claim decides it and any particular brought How- claimant, it was class of mail. may suit within two ever, postage placed years the amount of there- thereafter in accordance with on prin- was more than sufficient for it to statute. are in accord this We transported Special De- as First Class ciple, especially under the facts in this livery Mail, Mail, First First Class Air case. receipt Class Certified Mail with return Ill requested, enough it to travel Filing Petition Registered of Plaintiff’s Mail. Under these facts circumstances, and, according to the We will consider now whether testimony expert postal of credible em- plaintiff’s petition was in this filed court ployees, presumed the letter was to be on or before December First Class Mail and handled as such. two-year was the last limita- testimony expert postal em- these tion after the District Director ployees showed that let- First Class Internal plain- Revenue disallowed the Washington, C., ter would arrive D. tiff’s second claim for on refund Decem- 1st, 2nd, 3rd, 1962, on December ber at this court in due course of mails ais well established rule of 3rd, 4th, 5th, 1962, December whether law is considered filed it traveled as First or Fourth Mail. Class when it is delivered to the court. See proven nothing It was there was States, Schultz F.Supp. regular interfere with the movement of (1955); Ct.Cl. 618 Paper Central Paul, the mails between St. Minnesota Commissioner, Co. (6th 199 F.2d 902 Washington, C., during pe- D. 1952); Cir. Coaches, Arkansas Motor riod, either outside the mails or within Ltd., Commissioner, Inc. v. 198 F.2d 189 postal facilities. (8th 1952); Cir. Telechron, Parissi v. shows The evidence Inc., U.S. 75 S.Ct. 99 L.Ed. guard door the front maintained (1955); Bolduc v. United day, twenty-four hours F.Supp. (D.Maine, 1960); Bates pro- customary habit and that Mfg. Co. v. handling delivered mail cedure 58 S.Ct. L.Ed. guard duty for the court was Therefore, necessary de- becomes postman from the ceive plaintiff’s termine the date immediately stamp court, since, according reached this parcel mail means each letter or authorities, that would be the date on stamp hand stamp machine or a either a which the would be considered stamp into the mail did not fit filed. during periodic intervals machine. At regard to the The facts with guard day received who had gen plaintiff’s petition are replacement duty, mail, would his on erally as follows:1 stamped to the office the mail take thus of the where such petition of the Court Clerk mailed its deputy open envelope, weighing clerk or his one- sealed five and findings many and inferences of his to Trial We are indebted Commissioner facts are All relevant therefrom. de drawn Franklin M. Stone for his exhaustive opinion, velopment phase in this contained facts on this although agree case, with we do not 442 envelope stamp petitions had been sealed he all filed which and that mail, properly to Clerk on addressed found in the and docket them and also Washington, guards D. C. tes- records of court. this Court they independent recol- tified had no that motion for filed a The defendant receiving containing lection of the letter above, summary judgment, stated as plaintiff’s petition, that all mail re- petition ground was filed that during period stamped ceived this was says day late. The one accordance with usual their custom and, support timely filed, petition practice They and delivered the clerk. contention, upon well- relies this it they further testified that no time at did presumption a letter established any misplaced find letter that had been sealed, stamped, properly ad which guard or that was on the of the desk dressed, deposited United day following it had presumed reach Mails States received, been stamped, and that all mail by him in due addressee and be during received, this had been of the This course mails. stamped, and delivered to the clerk on the approved by many authorities has been They it was received. long recognized by the and has been testifying were on the basis their States, Dunlop 165 United courts. See any habit and custom and without recol- 495, 375, 486, 41 799 U.S. L.Ed. 17 S.Ct. lection of or reference letter con- Hagner (1897); States, 285 taining plaintiff’s petition, they, 430, 417, 427, L.Ed. 861 76 U.S. 52 S.Ct. course, receiving could not remember (1932); Walker, 111 U.S. Rosenthal v. particular it or letter as it 382, 185, 193, 4 L.Ed. 395 28 came in. (1884); Ins. Columbian Nat’l Life Co. (10th Rodgers, 740, Cir. 93 F.2d opened Deputy Clerk of this Court cited; 1937) and Central cases there envelope containing peti- plaintiff’s Paper Commissioner, supra; De Co. v. petition tion and handed the to another Corp. troit v. Com Automotive Products Clerk, Deputy who of dock- the act missioner, (6th 1953); Cir. F.2d 785 eting the case when he noticed that States, supra; Arkan Schultz v. United 1962, date of he December which Coaches, Ltd., sas Motor Inc. v. Commis stamped more than sioner, supra; Borden Co. v. United years two the date of December (D.N.J. F.Supp. 387, when District Director In- 1955). plaintiff’s ternal Revenue disallowed sec- clerk, deputy ond refund claim. The presumed employees are Postal might realizing question arise some discharge proper man duties in their limitations, envelope in retrieved the F.2d Boerner ner. had arrived from the denied, 1941), (2d 313 U.S. cert. Cir. thrown,

wastebasket where had been it 1542; Hen L.Ed. 61 S.Ct. envelope found that had also been Co., Coke &Coal v. Carbondale derson stamped guard 7, 1962, by December 35 L.Ed. 11 S.Ct. of the court at front door. He filed being evidence to There envelope along presumption, must be as it rebut among papers so it plain employees handled sumed might inspected any questions arose. with their tiff’s letter in accordance inspection envelope An revealed a practices regular from duties and post showing stamp office thereon Paul until was mailed St. time November was mailed Washington. at the court arrived Paul, Minnesota, it con- and that problem is not the first time This postage, which had tained 55 cents court. considered has been postage stamp placed thereon fully case of Schultz discussed case, employee by post States, supra. in St. In that meter office v. United placed petition stamps, here, in an strips was by the means of of two Paul sealed, timely properly tion was not filed. That case envelope which was clearly case, supra, the and the addressed, Schultz are mailed stamped, and distinguishable There the on the facts. court within reach the in time to person supposed of the who to have mailed course was in due the limitation days question the document in could not re- filed two mails, marked it was but here, mailing, plaintiff, the the in- by member details of The late the clerk. cluding stamps, affixing upon presumption the of the the relied the of arrival placing petition of the in the en- in due course of the mails. instrument of the writing velope, Judge Jones, and when and he mailed the unani- where in Chief court, opinion it. court held the discussed with that indefinite mous of the approval presumption character of such evidence such that arrival was mails,i presumption petition the arrival in due in due course holding citing cases, pre- receipt course of the did and that mails and of sumption words, not prevail arise. in the there must absence presumption testimony direct all of due rebuts it. arrival in stamped actually course court held the date on the of mails. That case petition principles affirms is not sufficient to overcome the announced in the presumption case, supra. pointed in Schultz of arrival due course of It was out petition upholding mails and ordered filed in in that case the presumption, time. the Government negative evidence, able to offer holding the date cases Other which was insufficient. enough stamp on the Engineering Co. The case of Modern presumption rebut of arrival of States, F.Supp. v. United are: due course of mails court, (1953), decided Ct.Cl. 136 Coaches, Ltd., Inc. v. Arkansas Motor facts, distinguishable because on the Commissioner, supra; Paper Co. Central posi- there direct and in that case Commissioner, supra; Borden v. Co. letter was tive evidence when the States, supra; Detroit Auto and were its contents the office where Corp. Commissioner, motive Products filed. Actually supra. stamp file envelope nothing more than overcome seeks The defendant procedure, evidence of method pe of the arrival of the presumption and habit custom followed offi by pre mails of the in due course tition handling papers cers of the court de custom senting the habit evidence discharge proper livered to them employees officers of their official duties. Such evidence showing their method court, in detail nothing well-recognized adds pre arriving at handling mail procedure of sumption public perform officers including placing of a court, their proper duties of office in a nothing habit This is stamp thereon. manner. But the cases hold such a sufficient is not or custom presumption will not overcome nor rebut arrival presumption of to overcome of the arrival of a letter mails. Such in due course in due course of the mails. See Arkan holding the case of Crude the court Coaches, Ltd., sas Motor Inc. v. Commis Commissioner, F.2d 809 Corp. Oil sioner, supra, Rosengarten v. United 1947). defendant (10th There the Cir. infra. handling proved method the detailed again the Internal problem con officers before us was attempt opinion to show in an sidered this court an also Revenue Office Judge in that document late written Chief Jones arrival F.Supp. enough Rosengarten this was The court said case. assumption (1960), rebut cert. de to overcome Ct.Cl. 287 nied, in due course L.Ed. it had arrived 81 S.Ct. peti- 2d mails. where court held that

444 Rosengarten States, United

A case is Borden v. similar Co. See also v. United States, supra, supra; defendant where Commissioner Internal Reve proved Welch, 939, (5th mail nue and custom of the v. 345 Cir. F.2d 943 habit 1965); Spreitler duty stamp re- clerk whose it was to Louisville R. v. & N. Co., 115, 1941); proper (7th of- F.2d ceived mail and route 125 117 Cir. attempt Chicago Co., presump- fice in an to rebut Trust Erie 165 Co. R. v. receipt. there, (7th 806, 1948), tion as F.2d clerk 809 Cir. cert. de here, receiving nied, 845, 1513, could not remember 334 U.S. 92 L.Ed. 68 S.Ct. 1769; particular document, Gulf, Freund, M. but testified & O. Co. R. v. 1005, (8th 1950), 183 habit F.2d custom that since cert. 1010 Cir. denied, stamped particular day 904, 280, a "it 340 must U.S. 95 71 S.Ct. day." have L.Ed. been received that The court held evidence insufficient Negative evidence presumption timely to overcome the may habit, procedure create custom and receipt. ordinary presumption course a procedure followed of business or and cus- the habit as to The evidence given day. Life Ins. a Knickerbocker employees officers and tom the court’s Pendleton, 339, 115 U.S. 6 S.Ct. Co. negative handling evidence is the mail in (1885); 74, Dunlop v. 29 L.Ed. 432 proving appreciable in value no and has 375, States, 486, 165 U.S. 17 S.Ct. specific or commission the omission (1897); 41 799 and United States L.Ed. is a particular when there time act Washington, v. State of 233 F.2d contrary in this presumption to the (9th Cir., 1956). However, 816 if such many instance, if case. For witnesses presumption created they seen had never testified testimony the offered as to the custom guard place a court door handling procedure in mail at the they delivered stamp were on letters as received, not when it suf court, such evidence not strong presump ficient to overcome the prove not, fact, stamp he did plaintiff’s petition tion of the arrival of manner, given In date on a letter. like in due course of the mails. The cases they they him had seen testified that presumption hold that arrival long day stamp letters for a due course of the mails cannot over be time, prove he this would presumption. come another Arkansas containing stamped particular letter Coaches, Ltd., Motor v. Commission Inc. nega- plaintiff’s petition. simply It er, Rosengarten supra; prove tive evidence and is insufficient supra. something happened hap- or did pen given pre- at a time in the face of a presumption cannot A sumption contrary. Such was the speculation rebutted overturned or holding, effect, of the court in the case destroyed suspicion. can of Jones v. United F.2d 226 convincing and uncontra overcome (9th Cir., 1955) 27 wherein contrary which dicted evidence stated: clearly distinctly a fact establishes concededly proper can draw regard so that reasonable minds We Corp. Brewing timely the claims one inference. Falstaff giv- (8th Thompson, Cir. positive F.2d instance as denied, 1939), 631, 59 S.Ct. strong of de- presumption cert. rise to Wolfgang showing 1514; Bur 83 L.Ed. livery to the Collector. rows, U.S.App.D.C. F.2d pertinent files a search denied, (1950), cert. record U.S. office revealed the latter’s having addition to is a 95 L.Ed. 606. filed of the claims strong foregoing, negative circumstance, to overcome insuf- purely presumption letter ficient, opinion, arrival rebut in our *** mails, delivery. countervail- due course of contrary ties, presumed to we hold ing is must show evidence plaintiff’s positive proof containing petition his by letter direct true be negative evidence at in due course of The arrived this court facts. affirmative case fails the mails on by in this or before December defendant offered conclusive, presumption requirements. and that this is these to meet direct, by since it has not been rebutted everything could plaintiff The did positive, convincing clear and reasonably expected mail- of it in the uncontradicted, contrary. which is petition Het- court. See to this its petition timely Plaintiff’s filed. was Co., Express man v. Fruit Growers Accordingly, 1961); F.Supp. (D.N.J., Arkansas motion for defendant’s summary judgment denied, Coaches, Ltd., Inc. is and the Motor v. Commission- showing neg- er, supra. case is no remanded There is to the commissioner for proceedings ligence petition part. ordinary The was in on its course. plenty to reach mailed in of time for it Judge (concurring): JONES, Senior due course of the mails with- court period. There limitation was a refund claim for amended Plaintiff’s negligence in send the let- its failure to deposited in Post taxes of income registered ter In certified mail. or Paul, Minnesota, on No- Office fact, type mail of later could arrive to the United vember addressed ordinary than mail because of rec- Claims, Washington, D. States Court keeping required postal ord em- envelope in which C. On ployees. mail, If it been sent air placed sufficient enclosed were might speeded up that service have transportation stamps first class for arrival, time of its would mail. rely presumption still have to on the court, stamped The date in arrival due course the mails. Even petition, 1960. December mail, with air have we would still The be be- limitation for a suit to presumption argu- and the same gun expired on December envelope ment stamped if the De- since the asserts day late, cember one em- mailing elapsed time and the between the ployees of the court. docketing days, was 6 which was The Court of is a na Claims substantially more than for sufficient petitions tional court and receives from transportation docketing normal parts country. all It is the almost mail, as fourth class claim should practice litigants universal and law having be held as due arrived in time yers residing Washington outside of the having actually been filed within petitions area to send their time for consideration on the merits. impossible United States mail. transportation time for normal exactly t-hem day to know what Washing- first class mail St. Paul hour actually will arrive at the ton, C., according D. to an official of the they court. All that can do is mail their Department days Post Office is 2 petitions in time to arrive at the court longer first class mail and 1 in due course mails, journey fourth class mail. It should have ar- Washington and person deliver them rived destination not later than to the clerk. The latter course is far too 3d, certainly December and should have expensive, time-consuming, and incon been docketed before the end of Decem- expected venient to be of them. Conse ber 6th. quently, every presumption reasonable mailing timely proof must be arrival of a in due course of clearly established. fact of While the mails when sent to the court timely mailing presumption of and the indulged should this court. rebuttable, are the courts have arrival Under facts, all of these and in held that the mere late marks foregoing accordance with the authori- are court’s not sufficient records timely the court and have reached legal sumed rebut clear clearly filed in time unless there estab- timely arrival satisfactory did not ar- proof lished. establishing In the court in time. rive at strikingly are ease The facts Appeals over- doctrine the Court Motor Arkansas to the facts similar had held the Tax ruled Court which Commissioner, 198 Ltd., Coaches, Inc. v. otherwise. 1952). (8th Cir. F.2d at the Post placed in the mail there liber- a manifest effort further In to January Dallas, Texas, on legal in Office incident to alize the income petition an of review for timely mailing of claims and the addressed It was Congress by tax assessment. documents, the Section in Wash- the States Tax of Court the Code went 1954 Internal Revenue stamps envelope ington, The bore C. by D. beyond ruling the cir- established transportation for first class sufficient provided court’s cuit decision and case was The mail. United States mailing time of document should February 6, Court, in the docketed Tax filing be treated as the date in the actual days’ limita- one Tax Court. period expired. The Tax Court had tion This enactment in Section dismissed the on motion defendant way any 1954 did in the doc- affect ground on the suit Eighth trine enunciated Circuit filed out time. 1952 that if a document is mailed in time Appeals Court States The United to reach the court in the normal course permitted a Tax pre- Court reversed of the mail it is sufficient create to Except for merits. sumption merely timely consideration arrival. delay docket- from ruling drawn inference added to decisive showing specific lack ing original mailing there Tax Court the date of part em- diligence either on the should be treated as the date of actual the Tax ployees filing of the Post Office Tax That is all this Court. pre- held it The court Court. provided section did. The section Tax Court arrived at to have making sumed the section and fil- and docketed should be filed in time and synonymous apply should not Motor Arkansas for consideration. to other court. Coaches, supra. already been estab- principle The had Texas, Dallas, to distance from to reach mailed in time lished that C., practically the Washington, D. is course of trans- destination the normal Minnesota, Paul, Wash- to expiration as the limi- mission before stamps here, There, ington, may, D. C. if in period, tation the court mail. In first class justify judgment sufficient for were of the case facts Motor Coaches case the the Arkansas action, filing pa- such conclude that only 2 mailed pre- review pers at the within the arrived court filing period days permitted every before to reason scribed time. There is were expired. case there the instant apply principle enunciated Eighth days. Circuit In that case the Arkansas Motor Coaches decision presumed that it would prior held situation case. instant per- the time arrived before ruling in the Arkan- circuit elapsed, and the merely puts mitted sas Motor Coaches case accordingly. litigant case would be heard local claim- out-of-town basis, nearly ant on a more and re- Motor Coaches The Arkansas part moves at least discrimina- pe- if a in 1952 that enunciated rule against tion claimant. the out-of-town time for it mailed in sufficient tition is important in the especially This rule in the normal the Tax Court to reach has Claims Court of States the time limit United before course of jurisdiction. The commission- pre- national expired has it should be wording ers are sent all over the United States reasonable under conduct for the convenience trials statute. litigants, but the court’s situs is Wash- complete harmony This is in with the ington, mailing privilege D. C. principles announced in the cases cited especially liti- needful for Pacific coast above. gants, 3,000 away, people and for miles deny hearing If this were in Hawaii and Alaska who are several on the merits it would be direct con- Why away. thousand miles farther principle flict with the laid down they should have their limitation Eighth Circuit Motor Arkansas days against shortened several liti- Coaches case, which was decided two full gants living Washington, near D. C.? years before the enactment of Section Many of the Government installations 7502 of the Internal Revenue Code Manifestly, are on the coast. im- practical get plane the train or This rule of the effective use of the carry Washington, document D. everyone mails is fair and unfair C., great expense. to no one. applied principle The same has been use the mails Successful businessmen following Paper in the cases: Central continuously in commercial transactions. Commissioner, (6th Co. v. 199 F.2d 902 greatly fact, they handi- would be 1952); Cir. Detroit Automotive Prod capped if denied use of the mails. Corp. Commissioner, ucts 203 F.2d 785 in mul- The the mails a uses Government (6th 1953); Corporation Cir. Crude Oil including transactions, the han- titude of Commissioner, (10th 161 F.2d 809 Cir. dealings dling millions in- of its with 1947); Schultz v. United F. By paying defend- come tax citizens. Supp. 953, (1955); 132 Ct.Cl. 618 Jones regulations and its ant’s own its demands (9th United 226 F.2d jeopardy by mail to assessments are sent 1955).1 Cir. taxpayer’s It known address. last any fur- in the thus the citizen without It is not claimed instant binds requirement. ther be held to be should synonymous It date. is with the op- Department is The Post Office simply plaintiff claimed since mailed It contracts erated the United States. his claim in Paul on St. November carry the mails. for a consideration allowing substantially thus more than upon The reliance the United use sufficient time for it to have reached the universal. States mail service is almost in the normal transmission of the everywhere People use its facilities. mails, should, in line with several service is essential to modem business cited, presumed decisions be have been operations. postal service expira- delivered to the court before the perfect; can be. no human institution suit, tion date of December 6. This It a serv- nevertheless renders wonderful therefore, “begun,” should be held as days early our ice. Founded in statute, within the terms of the before nearly national life has had two cen- the end of December 1960. While we operation. of- turies of successful Its shorten cannot of limitation employees ficials have a natural may the court determine when and where pride accomplishments. It has its begun suit if such justly determination people earned confidence of the 5(e) 1. Rule of the paper upon him, tion, States Court or other and the recognizes principle: Claims the same is made mail Dis- service outside the “(c) Additional Columbia, days Time After Service trict of shall be added party right Mail. —Whenever a prescribed period points has the to the east required or is Mississippi River, to do days some act or take of the shall proceeding prescribed some pe- prescribed period within a added be pleading, riod after points Mississippi service of a mo- west River.” you way re in no is the fact that can- It is Constitution

of the United States. business, private take shirt from not ragged back markable both efficiency governmental, urchin either se- street without trusts its curing consent, paying important personal the lad’s him transac business and rags, permitting or at least him tions all kinds.2 hearing a as to he came the shirt. how good why litigant a Is there reason big broad, country. a This is There pe- have his should Pacific coast away people living great are distances riod of limitation days? 8 or shortened continental Thou- United States. sands of miles farther live citizens deny injustice tragic would they Hawaii and Alaska. have Must pe- hearing placed its when rights their still further lessened or their Paul with in St. Post Office tition in the asserting rights time for these further trans- stamps it to be to entitle sufficient suggest reduced? No one would days mail, 6 before ported class as first personally must be “toted” A date. expiration of the Alaska or that otherwise the citizen normally postal testified official gamble should take a risk or his with transported to would first class rights. days, that fourth in 2 its destination mailed longer. day take about class mail Paul, Minnesota, No- Post Office days’ it still tolerance If we allow 2 plaintiff in the exactly the vember 30th. If another or two should arrived with have Washington, C., area, D. slightest doubt spare. is not There facts, De- submitted its claim ample papers mailed in were 6, de- be cember latter’s would any preclude circumstances time. The on the the instant cided merits while conclusion. other reasonable plaintiff’s claim would be denied without though hearing a even it mailed mailing timely as well evidence days earlier. be even This would true timely rebuttable. arrival also is though the second its mailed alleged apparently Nearly or facts all petition Washington, C., in D. on Decem- any proven in case. are facts rebuttable 6, ber since in all ABCD street boxes mailing timely However, evidence of sign Washington, C.,D. a this bear to clearly the de- here that is so established effect, “Mail here before 11 a. m.—de- argument oral in brief and fendant both p. m., only.” livered before local in an to show late concentrates effort any posi- produce arrival, using it failed to but be plaintiffs would Both of the claim prin- tive of late arrival facility. apply Unless we Certainly the evidence of- in clearly this case. Motor ciple in Arkansas stated so pre- Washington fered living defendant to overcome Coaches, the one pe- siimption case that the in the instant hearing merits a while would have have been dock- tition in time to living (plaintiff arrived here- Paul the one expiration date un- hearing eted before the in) be denied would negative, wholly satisfactory. It was days though acted earlier. presumption of failed to overcome the engraved deeply inscription is an There timely arrival. Supreme build- front of Court on the ing: right day one of “Equal Law.” Justice Under rights any highly prized most always applied Why in this Republic. I have should not citizen of this thought glories of case? that one the chief 1957), reasoned discus- R. Fifth has a well

2. Hon. Brown of the Cir- Cir. John phase. cuit, dissenting opinion in Rich v. in a sion of Commissioner, (5th 250 F.2d convincing strong Judge (concurring): NICHOLS, such rebuttable impute evidence, is difficult (his agree with the commissioner I plain Congress forfeit an intent 73)1 Finding petition in cold in action circumstances tiff’s chose on December 7. Arrival fact arrived too, I diffi here involved. share that appears tome December 6 before always culty. our I have believed intents mere all not a Congress normally enact intends legal ly, fiction. We know that ments, apparently draconian when practical envelopes matter de sealed mitigated by judicial phraseology, to be posited States Post Of United interpretation executive whenever fice, duly stamped, addressed and do language play unfore comes into year grace 1967 —and did harsh, situations, absurd, seen where certainty in 1962 —arrive with such wholly results, inequitable as are such regularity justify phrase as to leg apparent purpose outside “due course of mails” as a measure of strictly islation, literal from a flow longer time. date of interpretation. put more forth Laws any presumption warrants whatever as achieve, words; they ends to have than delivery. hand, to date of On the other Mr. is in this connection and it pro this court had in effect in 1962 said, Holmes are flexible.” Justice “words adequate cedures that seem to me to as Haverty, Stevedoring Co. International packet arriving sure that a on or before L.Ed. 272 U.S. 47 S.Ct. December would have been date- stamped on or before es December pecially higher when it was no class than Rector, case I still The classic believe ordinary mail, first-class which was nev Holy Trinity etc., of Church of er delivered later than 4:15 p. (Commissioner’s m. 55-f).1 Finding (1892), holding 36 L.Ed. 226 thing statutory against penalty prepaying The main cases cited that, transportation court tell me is in the circumstances enter of an alien costs involved, generally here courts have the United under a contract —and wisely managed denying peti performance to avoid of labor or services — day by him, apply their tioners court. extreme not to did “[I]f hardship appli arrangement will from a church’s to result literal obtain English guidance words, may spiritual cation of the be taken as an min legislature (at p. 460, 12 use ister. The did not said literally.” 512), object designed App. them to Kemp, p. Ballou S.Ct. at “The 68 7, 556, (1937). D.C. 92 F.2d Pre be and con 558 reached the act must limit sumptions enough import fictions serve trol literal well terms mistaking while, phrases employed.” for a but we must avoid also See Castell reality. States, hope splendid F.Supp. them for I 83 United 14 Helvering (1936). staff of this court not does Ct.Cl. 229 v. New believe really Co., we think them inefficient and York Trust as 54 (1934), ineffectual as our ratio chosen decidendi S.Ct. L.Ed. 1361 78 teaches obliges “presume.” us to principles us like are of construction not field Federal excluded from the interpret, We have a statute to and our good A case in this court taxation. touchstone must the intent of Con- States, Dynamics Corp. gress. General I take it the real for erect- reason making 971, 163 presumption, ir- F.2d Ct.Cl. adopt glad 1. com- court does not References are to commissioner’s say Findings Findings. report court, to his missioner’s Suffice evidentiary sup- adopted. they Findings, are not furnished abundant incor my opinion, porated Judge are, port, opinion, for the commission- Skelton’s Finding 73, presume, (See 1). I ultimate whatever else contra. his f. n. For er’s may on, just about I have erroneous them. reasons indicate later I am Evidently, may rea a government forfeiture without fault invoke such itself nothing Proc soning against taxpayer: do stimulate exertion a thus generally. Manufacturing part plaintiffs Unit on the suppose Co. v. I ter & Gamble legislation further all T.D. ed C.C.P.A. specting against government denied, suits (1932), U.S. cert. assessing objects sparing has as one gress of its the Con- 82, L.Ed. a statute being “imported against private from inundated with import articles duties being applied so, foreign country” bills for relief. I any This believe from high Congressional scheme should be con- to whale oil manufactured though visualizing rejection foreign vessel, strued not flag in a seas foreign jurisdictional grounds any a claim on “imported oil not from where grounds appeal- the same ing country” any of the would not be an use accurate rejecting private bill, reason for terms. unless, course, purpose such has been thing may rule, a familiar “It is explicitly argument. announced too the statute letter of be within statute, yet because not within Congress That the has corrected the spirit, the intention nor within within ambiguity respect Tax to the Court * * * not the This makers. of its (see 7502 of the Internal § Revenue Code judge for the will substitution 1954) only persuasive is not to me in frequently legislator; that of any absence of indication that meaning general used are words of Congress might juris- knew we refuse enough to include statute, words broad diction in the circumstances here in- yet question, considera an act in volved. ** * legislation, whole tion of the simply I would hold that this suit was which follow of the absurd results “begun” not later than the last meaning giving such from broad Congress require intended to it to be “be- words, believe makes it unreasonable gun”, and I relying would do so without legislator to include that the particular intended any presumption postulating delivery etc., Rector, of Church act.” “in due given course of mails” at Holy Trinity time. supra, 12 S.Ct. 143 U.S. at Congress cut Can we intended to right, believe inquiries If am I conducted off ? I cannot. by the commissioner the court’s direc- largely tion dealt in irrelevancies. At herein, requirement that a suit . they the same time were cruel: “begun” years, is must within two involved, firm law Office De- Post ambiguity. free all As a matter regret partment, and to I our own staff. semantics, person has whose bullet left handling Report that our fails “begun” part in his Mauser has his preclude Holiday another such Roman discharged combat. Plaintiff his missile the future. year period before two ran out. It the trajectory thereafter in and be- was DAVIS, Judge (dissenting): yond his further control. Within the accept, dif foregoing cases, of the appears permis- I cannot either me judges put by com plaintiff bases forth the sible to hold for the ferent prising without holding majority, postulating delivery the the date December 6 contrary was plaintiff's refund claim for tax the result outside the statu- is tory scheme, timely by 1962.1 How suppose, I filed December is. I believe it view, my decision, course, Congress explained, plain- the intended a ever proven or to the forfeit counter to the facts tiff to his cause of action runs unambiguous inertia, agents, standards set for his and own or that of his clear pronounce- not recent others outside his control. in this court’s forth was, separate reality, claim 1. I do not reach refund other issue of whether the second the from the first one. Judge My dispute receipt over with Skelton is presumption of after ments on the prop- reshape presumption sharply whether that has been mailing. is Its effect agree, theory, erly tax period for statutory rebutted. All limitations the presumption and courts is the not conclusive suits —a venture refund overcome, can be but the rule announced to undertake. loath should by plurality opinion re- the the the agree Judge Skelton I do by positive buttal “direct must be filed, within petition not plaintiff’s by facts”, proof not of affirmative statute, meaning limitations the “negative habit, as to custom actually delivered until high procedure.” impossibly This timely mail- mailing, court; mere arguments previously standard echoes enough. Modern ing, See not be would unmistakably rejected advanced and F.Supp. Eng’r United Co. v. Eng’r United the court. In Modern Co. v. (1953); 685, 687, 139-140 126 Ct.Cl. F.Supp. 126 Ct.Cl. F.Supp. States, 132 Schultz v. (1953), the Lucas Act mailed a (1955). 953, 955-956, 132 Ct.Cl. normally claim which would arrived have held, previously That is we have what Navy appropriate bureau of at great majority of courts what Department within limitations that, court’s I also concur under hold. period. Solely on the date basis petition procedures in effect Navy’s receipt em- written timely delivered filed if it were would be ployees claim, the face desk, main located at the then letter found that was delivered building, within of our old entrance time-bar had fallen —thus two-year period. Ibid. jecting argument pre- plaintiff’s that a disagree that, Moreover, sumption timely delivery I do was created pre here, opin- a rebuttable which was not rebutted. While the the circumstances receipt delivery and sumption ion due does whether indicate trial indulge found facts from the refused al) arose mailing. as to the considered it rebutted the nota- commissioner plaintiff’s document, receipt tion of mail clerk true that care.2 expressly much exercise firm did not dismissal claim did law provided for postage acceptance reaffirm Insufficient court’s regis using sent settled rule that the risk of to have been plaintiff, clerk nor must mails be borne mail and neither tered bearing complete envelope indicated “is not until the doc- preferential ument mail service delivered and received.” United that other pack Lombardo, appearance, States v. From its desired. conceivably age consider have been 60 L.Ed. We could type “[plaintiff’s present predica- of ser noted that ed fourth-class matter. filing] solely ment apparently [late discretion from the left to the stems vice was fact postal employee Paul did not allowance make strictly non-preferen failure the mail to move Post But even Office. * * according including mail, in mail, schedule *. tial fourth-class conditions, occurrence ordinary however, these course the is a risk which within the held to have been must be plain have period, assumed when it to use the elected limitations therefore filing mails as a presumption means of of due claim.” tiff is entitled the its Eng’r supra, delivery receipt. States, United Modern Co. v. and (cid:127) findings Judge respect, detailed show the commissioner’s contrary, 2. In this I differ from Skel- is no reason to re- and there “[t]he did ton’s conclusion that everything reasonably ject findings, on tes- are based his which that could be ex- personally timony petition and pected which he heard its of it the of carefully. “[t]here and is no show- evaluated to this court” negligence part.” trial of on its 452 687-688, been received to demonstrate F.Supp. at evidence has 126 Ct.Cl. 113 at delay that likelihood of and mishan- the 140-141. dling was minimal. précis court’s recent of this most Rosengar- type proof same as is the filing petitions toward attitude the legal applicable principle ten and the Rosengarten mail is exactly plurality is the same. Yet the (Jones, F.Supp. 149 Ct.Cl. opinion today repudiates principle that J.), denied, 822, 81 S.Ct. C. cert. doing acknowledging without that it is there set L.Ed.2d We silently jettisoning aspect In so. major applicable to forth rules the two ignores Rosengarten, that the that First, cir kind of case. limited held, alternatively, pre- no that decision receipt upon of “com cumstances and sumption “in arose and also event” preparation, pelling evidence” correct strong- presumption that even based on addressing, mailing, court will and the against prevail er evidence “would recognize presumption paper that a sent the evidence offered the Government through duly and mails was delivered the general specific procedures and as by the The evidence addressee. local Internal Revenue office.” suggest strong enough “must be that Ibid. highly probable has it is that F.Supp. Schultz presumption place. no taken Otherwise J.), (1955) (Jones, 953, 132 Ct.Cl. 618 C. indulged.” Id., F.Supp. will entirely with later consistent 277-278, Sec 149 Ct.Cl. at 291-292. Rosengarten ruling. recognized Schultz presumption ond, can be overcome receiving propriety evidence evidence, by appropriate proof. Rebuttal general employed specific procedures, and quality however, not be of the same need office, our Re- clerk’s in rebuttal. quantity required as that to raise viewing employed, procedures then hand, presumption. On mere one however, correctly that found no evidence that record of there receipt stamped peti- date of receipt of a is insuffi date * * necessarily tion “does not indicate pole, cient. At it neces is not plaintiff’s petition that that arrived on sary for Government establish day [July the custom of 16] since was certainty claim was absolute stamp time clerk’s office at being not lost received or that Monday [July on all 16] delay receipt occurred between and previous papers that had arrived on stamping More the clerk’s claim. Id., Saturday Sunday.” F.Supp. specifically, Rosengarten the court 954, 132 evidence Ct.Cl. at 620. Such directly unequivocally stated presumption could not rebut delivery receipt of due (within properly delivered prevail against cannot period) Saturday, the limitations “general procedures” specific decision claimed it was. The responsible receipt of office hint of more does not that evidence petitions, proof where such indicates procedures exact and would reliable improbable im- that a claim adequate presump- have been to rebut the properly Id., F.Supp. at handled. delivery receipt. tion of due Rosengarten, 149 Ct.Cl. at In- unit of the local office was case, plain- present In the the evidence ternal Service and evidence Revenue ly pro- more exact and shows the reliable incoming step-by-step treatment clerk, adopted cedures, our offered to show that finding made trial warrant unlikely misplaced. a claim stamp the date commissioner Today, ad- are concerned with the we plaintiff’s petition represents actual procedures established ministrative receipt by the Not date of court. and, presented trial uncontra-

the clerk of this court has the defendant general specific show, adequate findings dicted evidence of the commissioner’s filing papers accept for to mail ble and employed office procedures the clerk’s long-time dating Cole, a em- handling at all Mr. times. proper and to ensure the court, regularly ployee as- of mail, the has incoming of the but signed from 7:45 A.M. spec- mail to the desk with considerable also described day. regular working observations, to 4:15 P.M. each ificity and movements, the day, place for After Mr. Cole left the his office the clerk’s actions members claim) at the mail desk was taken some (as they plaintiff’s dur- to relate employee until court who remained there days. com- trial the critical indicated, just court As the was closed. correctly de- found these missioner has regularly ordinary all mail deliveries tailed facts: daily made court received to the were mail, non-preferential As the duty. prior went off to Mr. the time Cole been delivered would have papers Mail to clerk and addressed ordinary deliveries course one of three Mr. received between for the time regularly court business to each made left 5:15 de- Cole work and P.M. were Therefore, day. with- delivered it was docket section livered to clerk or the (ending on in the limitations manner clerk’s office 6, 1962), it could have arrived December duty. on was done while Mr. Cole approximately 2:00 P.M. no later than delivery papers Special and mail 6th, last on December hour of the regular received after business regular delivery. daily mail accepted by employees were hours All mail the court deliveries made to assigned night shifts, noted on who to regular during business hours were the time and arrival such items mail located ceived at a desk inside deposited thereof them on the desk e., entrance, of door, main front i. deputy either clerk chief clerk employee building. An then court duty Mr. the court. Cole was duty regularly assigned court was to during December entire week until the mail from 7:45 desk A.M. 1962, and had not found testified that he closing P.M., 5:15 normal hour he desk when mail kind on his Monday through Friday, except on holi- morning. arrived for work days, responsibility ac- and was his agree I that Stone Commissioner cept all mail delivered to the court foregoing apparent facts postman. Upon receipt mail, pre- that, order conclude employee stamp all would sort it and sumption delivery normal has envelopes clerk. Ordi- addressed rebutted, we would have to find nary fed into a time- letter-size mail was envelope bearing plaintiff’s claim ar- stamp time which showed the machine rived at court while Mr. was on Cole Larger packages, and date received. such duty negligently failed he plaintiff’s, hand-stamped to were show stamp envelope properly stamp receipt. the date of The hand he office, route to the clerk’s adjusted morning each before went the item on his left desk when he regular delivery by em- first mail duty; night employees off simi- ployee duty the mail desk. larly failed to the enve- note the date envelope question stamped “Re- lope and it from Mr. desk remove Cole’s ceived Dec-7 1962 Office of Clerk”. deposit the item on the desk Mail dur- clerk addressed clerk; deputy the clerk or chief either ing regular business hours was delivered presented untruthful Mr. Cole office on the first floor of clerk’s testimony when never he stated that he building or to docket section of had found on his desk morn- in the floor. the clerk’s on the second office arriving ing upon for work. Like commissioner, simply I there believe personnel maintained making warrant is no record building day, days seven hours inferences, week, including possi- and that all holidays, so it was such series (D.N.J., 1955), points Supp. the evidence in fact no other there was in the case, proof, direction. of as of the course receiving handling of within mail the Indeed, ex- trial commissioner the agency; appeared that the all that was testimony plicitly Mr. that of found the stamped letter six months on no desk Cole that mail ever his long it a after was mailed and time after morning for work when he arrived in the missing reported already it had convincing. Accepting this was clear and agency (after inquiry an within the envelope fact, it follows the that search). claimant had initiated the the been delivered to must either have Commissioner, Paper In Central Co. v. morning prior of De- office clerk’s the (C.A. court, 6, 1952), 199 F.2d 902 the in one or that arrived cember reviewing after the Tax custom- Court’s regular day on that be- deliveries ary procedures, concluded that as a mat- no cause Mr. Cole would have ledge petition fact ter of the reached a regular the first the clerk’s office before the lock-box maintained Tax the testimony delivery day. of But the the post Court at local office within the the beyond question, the establishes delivery period, limitations and that such envelope concedes, that the con- ledge though to the sufficient taining plaintiff’s petition did not arrive paper did not reach office the the clerk’s docket section of office the the clerk’s expired; until after the the 7, 1962; until on that December delivery issue of whether to or day deputy the chief clerk first “filing” near lock-box constitutes envelope, contents saw removed its present of course not our case. stamped petition on as filed that date; thereafter, on December that Coaches, Motor Inc. Ltd., Arkansas entry 1962, an docket was made Commissioner, supra, v. F.2d indicating petition that on was filed “meticulously taxpayer, who followed day. that reasonable conclusion procedure guilty sanctioned and was of petition arrived at the negligence”, petition mailed his so on December after 7th —a the termi- ordinarily it would been delivered have filing period. nation of the proper and filed with court within docket, entry An time. court’s None of the decisions cited itself, petition indicated opinions, except possibly part one of statutory was received after Coaches, Arkansas Motor Ltd., Inc. period. majority panel as- Commissioner, (C.A. 8, 198 F.2d 189 delay sumed was “either present 1952), indicates that facts employees fault of the Post Office timely. should deemed employees office,” or the Clerk’s Corp. Oil Commissioner, Crude taxpayer and concluded that should (C.A. 1947), F.2d reversed a penalized negligence not be solely finding Tax Court of untimeliness government employees. at 192-193. Id. legal because the latter had made the negligence postal view that This ruling presumption error of employees filing will excuse late delivery was overborne Supreme contrary to the parallel presumption of the correct- Court’s decision United States ness the determination of the Com- 76-79, Lombardo, supra, 241 U.S. missioner Internal Revenue 60 L.Ed. as well as late; rejecting far from Judge lower numerous court decisions. Government’s careful han- concurring opinion in Arkan- Johnsen’s dling mail, Appeals the Court of “fraught rejected sas Motor Coaches wholly turned case “for decision implications”. 198 F.2d at giving weight evidence”, “no Commissioner, Paper Com- Co. v. correctness Central rejected finding.” expressly supra, missioner’s 810-811. 199 F.2d at Id. at position In Borden Co. 134 F. late plurality’s by current view that delay mat other. The caused is excused if the is delivery presumption of due can be no con has which ters over only by positive Eighth and rebuttéd “direct too, Circuit’s I, find the trol. proof un- of facts” un affirmative has insupportable law and statement satisfactory practice. desirable effect. event inapplicable here.3 is specific, detailed, In view of and Eighth proof Circuit’s cumulative offered here —which extent that To the Judge stigmatizes Coaches Motor ineffective Skelton Arkansas as decision employees “negative plurality must of conduct evidence” —the rested by distinguishable. positive proof” As mean clearly “direct and evi- is concurring bearing directly specifically dence Judge his observed Johnsen single dispute. entry piece not neces- “will of mail in This opinion, the docket legal very heavy burden, hardly receiv- is a one ca- sarily represent being pable not met. or receipt does We cannot demand ing, which one is government expect a into clerk to be automatically able itself channelize processes identify many trail of each of routine room court’s ** petitions us possible or or documents must be initiate “[I]t judicial testimony proceedings. impose or affect To find, from direct requirement a like circumstances, would, been some such in cases there operate present, ma- processes of accelerate breakdown delivery the moment of responsible for from toward chinery, which was mailing. having for- the time of re- taxpayer’s petition been Whether during by explicit judicial ruling limi- mally sult comes or filed and docketed” through The facts the use an conclusive period. F.2d at 194. almost 198 tations Coaches, presumption, contrary supported Motor remains in Arkansas * * * testimony Convincing “[fjiling finding. established rule such complete contrary result. until document requires our case delivered and ‘Shall file’ means received. petition, of this is dismissal Not to deliver and not send the office by suggested untimely filed, strongly * * * through the United mails. States compelled previous decisions, own our paper A when it delivered to is filed proof specific case, proper him official and general course with the harmonious ” * * * v. United States filed. supported judicial rulings, but it is also Lombardo, supra, 76, 241 U.S. at 36 S.Ct. by independent considerations. Use widely at 509. been This standard has delivery due rebuttable followed other federal tribunals prop- receipt, a claim has should not now be avoided this court.4 peti- erly mailed, to relieve a is intended See, g., F.2d e. v. 366 772 Jones, Evans presenting evi- from task tioner (C.A. 1966); Phinney 4, Bank of the v. readily Its available. which is not dence Ass’n, Nat’l 335 268 Southwest F.2d shifting the limited to effect should be (C.A. 5, 1964); Ward Atlantic Coast v. going for- Government burden R., (C.A. 5, Line R. 265 F.2d 80-81 nonreceipt ward with evidence of 1959), grounds, rev’d on other however, not, receipt. late We should (1960) 396, 80 4 L.Ed.2d 820 party burden difficult lieve one curiam); impossible (per Prospero imposing Di an almost one on the v. Commis- express present 3. an In the case there is Coaches case since his view does not rest post negligence any negligence finding office’s or there was no Depart- employees. employees think the court’s I that such Office Post overruling would also contradict the Su- ment. preme in United States Court’s decision Judge opinion reject our Nichols’ Lombardo, supra. The true v. same is prior holdings own decisions and the Judge separate opinion, I Jones’ go further than other courts and understand it. majority in the Arkansas Motor 456 1949); sioner, (C.A. consequences 176 F.2d of his failure to existing timely App.D.C. pursue v. Helvering, Stebbins’Estate his remedies Poynor (1941); Jones, 121 F.2d 893-894 manner. supra, See Evans Commissioner, (C.A. 773; F.2d Lucas, F.2d Chambers 1936). lawyers App.D.C. 327, Most know cases F.2d which have failed because rigors limitations, Relief from these through complaint tribunal, reached the unfairly, where to run should seems mails, Many days a one or two late. originate Congress than the rather instance, petition, certiorari for has been legislative courts. branch has Supreme for denied Court cognizant responsibility of this reason. Congress field. tax 1954 amended feeling course, often a Of there is existing by providing that most rule party discomfort when to a fails thus documents to be filed with Internal ruling obtain on the But merits. Court Revenue Service the Tax shall power court’s ease the of a effects post be deemed filed period limitations Con established specifically added, mark. The statute gress sovereign against for suits however, shall “This section relatively narrow. See Soriano v. apply respect docu States, 270, 269, 1 352 U.S. L.Ed. S.Ct. ment court other Tax than the (1957). 2d 306 tax re Time-bars for 1954, Court.” Int.Rev.Code § rights, funds “are established to cut off (d). legislative Explicit limitation justifiable might or not, otherwise provides new rule reason further they strictly be asserted and must ad why we should not follow the course judiciary.” Kavanagh hered to Congress majority. has Similarly, Noble, 535, 539, v. 332 U.S. 68 S.Ct. provided thirty days party that a has (1947); 92 L.Ed. 150 see Rosenman judgment appeal from a of a district States, 658, 661, appeals to a court of but that (1945) ; 89 L.Ed. 535 Tolerton may appeal time notice & Warfield Co. United 285 F.2d showing upon be extended of “excusable 124, 125, 126, 402, 404, 152 Ct.Cl. neglect.” 73(a), 28 U.S.C. Fed.R.Civ.P. (1961); Melchior v. United (1964).5 Congress But has § F.Supp. 136 Ct.Cl. 483 changed lenient, rule, or more made it Supreme consistently “has Court com refund suits or other claims judge ruled no federal court. con menced We should possesses power to time extend the apply of this case tinue the facts appeal beyond statutory prior our established the standards ** by any judicial form of action general judicial prac and the decisions Hill Hawes, U.S. 64 S.Ct. legis tice, and leave modifications (1944) (Stone, 88 L.Ed. 283 C. lature. J., dissenting). Though might, we if we legislators, prefer change

were some existing DURFEE, JJ., statutory join requirements, LARAMORE and judges petitioner foregoing dissenting opinion. cannot we absolve a Recently scope neg- 28,1966); Cong., (Feb. 5. 2d “excusable Sess. 89th expanded. Jones, supra, lect” See No. F.2d H.R.Doc. Evans

Case Details

Case Name: Charlson Realty Company v. The United States

Court Name: United States Court of Claims

Date Published: Oct 13, 1967

Citation: 384 F.2d 434

Docket Number: 388-62

Court Abbreviation: Ct. Cl.