Sorrentino v. Internal Revenue Service

Sklaver, Amicus Curiae. directly filing a Steven G. the choice between with corpus petition within habeas federal 02-1114, 02-1137. Nos. limit, attempting to ex- time AEDPA Appeals, States Court of motion for by filing limit state tend this Tenth Circuit. may result either rehearing that peti- of the federal or dismissal forfeiture Sept. situation, will un- petitioners tion. relief, directly to federal

derstandably turn remedy go will rehearing state

and the Therefore, reject a read- we

unexhausted. 12-404(C) P. that fails N.M.R.App. fifteen-day for fil- period recognize tolling period. as a

ing rehearing motion New Mexico precedent,

Based on our P., conclude N.M.R.App.

law and pe- AEDPA limitations

that Mr. Serrano’s the fifteen have been tolled for

riod should filed a he could have

days during which rehearing the New Mexico

motion for January had until Court. He

Supreme before petition to file his habeas statutory period, and we

expiration of the petition his federal

therefore find that January was filed corpus

habeas regarding our decision 2002. Because statutory timeliness of Mr. Serrano’s remand of enough itself to warrant

filing is court for further case to the district corpus of his federal habeas

consideration analysis not reach an

petition, we need claim. equitable tolling

Mr. Serrano’s judgment below REVERSE

We proceedings further consis-

REMAND for opinion.

tent with this SORRENTINO;

Rolly M. Joann J.

Sorrentino, Wife, Husband

Plaintiffs-Appellees, SERVICE;

INTERNAL REVENUE America,

United States of

Defendants-Appellants. Dalm,

States v. 494 U.S. 1361, 108 L.Ed.2d case, we conclude the district court jurisdiction Plaintiffs-Taxpay- lacked over refund suit their upon ers’ based failure timely a claim file refund with the IRS. and Joann M. Roily J. Sor- Sorrentino I. rentino, Pro Se. granted Defendant Plaintiff-Tax- IRS Metzler, Attorney, Tax Di- Robert W. Roily payers and Joann Sorrentino a four (Eileen O’Connor, J. Assistant At- vision time, August month extension of or until Greene, Kenneth L. torney General 15, 1995, to file their 1040 income tax Division, Department Tax of Attorney, Taxpayers, apparently awaiting return. D.C., Justice, Washington John W. IRS, Report” an “INPOL from the main- Suthers, Denver, Attorney, United States they tain mailed their 1994 return to the CO, brief), Department him on the regular postal IRS via States Justice, D.C., Washington for Defen- in early March and one-half two dants-Appellants. years after its due date.1 On their Cooley Steven G. Sklaver Godward $8,551 Taxpayers claimed a refund of CO, LLP, Broomfield, Court-Appointed as wage withholding during based excess Amicus Curiae. year. the 1994 taxable The IRS disal- SEYMOUR, BALDOCK, and Before Taxpayers’ lowed refund claim as untime- HARTZ, Judges. Circuit ly. The IRS maintained it had no record receiving Taxpayers’ 1994 return until BALDOCK, Judge, delivering Circuit October 1998. Judgment Opinion. of the Court and an se, Taxpayers, appearing pro filed this (I.R.C.) Code Internal Revenue lawsuit after the IRS their disallowed re- 7422(a) authorizes a to com- summary fund claim. The moved for IRS against mence a tax refund suit the Gov- judgment Taxpayers’ based on inability to ernment once “a claim for refund or credit establish the IRS received their refund duly has the Internal been filed” with Rev- August 15, claim on or before 1998.2 Over (IRS). enue Service Section 6511 of the objection, ap- IRS’s the district court I.R.C. limits the Government’s waiver plied rule, the common law mailbox 7422(a) immunity under requiring a provides proof of properly taxpayer to file a claim refund or credit bearing proper addressed communication specified period with the within a postage creates a rebuttable Thus, taxpayer’s timely time. filing of the communication was received. Accord- jurisdictional such claim with the IRS is a ingly, the district court denied the prerequisite maintaining a tax IRS’s refund against suit the Government. motion: See United court, According to the district years an "INPOL refund claim is three from the fifteenth Report” transcript day of a following income of the fourth month the close of reported to and recorded year withholding the IRS dur the taxable in which the ing given occurred, year. extension; plus taxable Sorrentino v. United period (D.Colo. or, F.Supp.2d case, years August in this three from accept 1995. We this date and leave the task 2002). unraveling jargon day. 651 1's to another parties agree applicable

2. The Dept. Treasury, limitations See Weisbart v. United States period (2d Cir.2000). Taxpayers' under I.R.C. 6511 for 94-96 the,common rule, self-serving state- law mailbox Applying case, are entitled insufficient to establish actual the Sorrentinos ments are to this they jurisdiction to a rebuttable in March 1998. Our claim for the filed their refund apply under 28 U.S.C. 1291. We arises they properly year upon proof 1994 tax summary judgment standard to the same in time for 1994 tax return mailed their our record examination as the district to the IRS to before it be delivered judgment de novo. court and review its 15, 1998 deadline. Mr. Sorren- [August] Co., Ry. Kinross v. Utah properly he mailed tino has testified (10th Cir.2004). Applying 660 stan- March, early in return 1994 dard, and remand with instruc- we reverse time for the ample more than provided suit for Taxpayers’ to dismiss want tions ordinary in to reach the IRS return subject jurisdiction. matter [August] 15 mail before the course of the account of deadline. Mr. Sorrentino’s II. by mailing supported is early March acknowledged Supreme The Court first , pho- signature 1 date on the March the common law mailbox rule Rosenthal acknowledges the IRS tocopied return Walker, 4 28 v. testi- by and Mr. Sorrentino’s receiving Rosenthal, L.Ed. In a case n on the status mony up that he followed involving bankruptcy, fraud Court 2, 1998 return before the October of the explained: asserted the IRS. filing date that if a letter The rule is well settled States, F.Supp.2d v. United

Sorrentino proved to have been properly directed I).3 (D.Colo.2001) (Sorrentino 1150, 1154 or deliv- put post either into the office encouragement, At the district court’s presumed, it is postman, ered to the summary judg Taxpayers also moved from the known course of business response, the IRS did ment. See id. it department, office the substance of dispute regular at the reached its destination Rather, argued, claim. the IRS refund time, person to and was received that Mr. Sorrentino’s among things, other it addressed. whom was in a proper mailing statements sworn added). (emphasis Id. at 4 S.Ct. 382 uncorrob and affidavit were deposition the mailbox rule subsequently applied We orated, to es self-serving, and insufficient Commissioner, 161 Corp. Crude Oil 1998. actual in March tablish Cir.1947). was a F.2d Crude Oil holding “the Unit disagreed, court district taxpay- deficiency arising suit out of tax evidence rebut produce failed ed States timely capital failure to-make alleged er’s [arising from the ting -did not de- Although we mailbox that the Sorren- stock election. rule] common law evidence, thus was delivered to it and we conclud- tinos’ return scribe 8, 1998.” Sorren filed on or about March presented was sufficient ed the evidence F.Supp.2d tino v. United enclosed his return establish the (Sorrentino II). (D.Colo.2002) stamped en- properly in a addressed in favor of Tax judgment court entered “in time to have deposited velope that was $8,551 awarding them a refund payers, Collector, in the ordi- by the been received plus interest. mail, statutory nary within course stated: (1) filing period.” Id. 810. We I.R.C. arguing appeals,

The IRS facie evi- “[pjroof of due the common law mailbox supplants April as 1998. mistakenly deadline district court referred 3. The added). Timely mailing (emphasis treated receipt.” Id. dence of timely filing paying properly mail matter is addressed “When mails, in the United States deposited (a) General Rule.— thereon, duly prepaid there is postage delivery. any Date of —If of fact that a rebuttable claim, statement, or other document re- by the addressee in the ordi- was received filed, quired payment be re- nary course of mail.” Id. made, quired to a prescribed be within Peters, 220 F.2d 544 In United States v. period prescribed or on or date before (10th Cir.1955), however, rejected ap- authority any provision under rule in a tax re- plication of the mailbox is, internal after peri- revenue laws Instead, citing fund suit without Crude Oil. date, by od or such delivered delivery applied “physical the rule” officer, agency, States mail to the or which deems a tax document filed when return, claim, office with which such by is delivered to and received the IRS: statement, or other document is re- depositing of the claims for refund filed, quired to be or to which such in post office in time for them to made, payment required to be reach the office box or drawer date of postmark the United States in due course of mail the Collector be- stamped on the cover which such expiration by fore the of the time fixed return, claim, statement, or other docu- filing for the of such claims did not ment, payment, or is mailed shall be filing They of them. constitute were delivery deemed to be the date of or the not the intent meaning filed within payment, may date of as the case be. ... of the Internal Revenue Code until they reached the Collector!.] (citing Id. at 545 United States v. Lombar (c) Registered and certified mail- do, 60 L.Ed. ing; filing.— electronic (1916)).4 (1) Registered purposes Mail.—For Peters, taxpayers After in the Tenth section, return, claim, of this if uncertainty Circuit faced substantial con- statement, document, pay- or other cerning timely filing of tax documents. ment, is sent regis- United States confusion, Congress

Amidst this enacted tered mail— originally I.R.C. 1954. As enact- (A) registration prima shall be ed, § only applied filing of tax return, claim, facie evidence that the pay- documents other than tax returns and statement, or other document was de- ments. See Internal Revenue Code of officer, livered to agency, or office ch. 68A In Stat. 895. addressed; to which encompass amended 7502 to (B) registration date shall be payments tax returns and as well. See Act postmark deemed the date. 2, 1966, 89-713, 5(a), Nov. Pub.L. No. (2) mail; Certified electronic fil- Stat. 1110. The current version of instance, ing. applies Secretary in this pro- is authorized to —The part: vides in relevant provide by regulations the extent Lombardo, phrase the Court held the official and him received and filed.” 241 (internal "shall file” as used in the "White Slave Traffic U.S. at 36 S.Ct. 508 citation Act,” omitted); 6072(a) meant "to compare deliver to the office and not (provid- I.R.C. through pa- general send the United timely filing States mails. A rule for the per returns). is filed proper personal when it is delivered to the income tax jurisdiction court lacked held the district paragraph provisions which the claim for refund where over the evidence of facie respect to establish a re records failed date shall and the delivery fund claim was ever received. Sixth and electronic mail apply to certified tax notwithstanding held Circuit so filing!5] timely mailing payer’s offer the current have construed Some courts Deutsch, Relying on the court the IRS. the com supplanting § 7502 as version of §to 7502’s exceptions concluded the entirely. Specifical rule mon law mailbox delivery rule are those found physical Circuits have ly, the and Sixth Second 731; Miller, 784 F.2d at ac the statute. held, postmark, physical absent States, 909 F.2d cord Surowka v. United to tax refund applies physical (6th Cir.1990).6 148, 150-51 subject only to the deficiency suits (c) § 7502 re Other courts have held exceptions contained subsection certified, the common law mailbox rule. supplant and electron registered, garding Instead, viewed the issue v. these courts have receipts. See Deutsch Commis ic (2d matter, Cir.1979); holding a sioner, evidentiary taxpay- as an Miller Cir.1986). (6th proof strict standard of before er a 784 F.2d 728 suit, receipt. Deutsch, invoking tax a Self- deficiency a tax the In serving mailing, declarations of without of his account payer offered the affidavit more, pre- to invoke the copy a are insufficient ant stated he mailed who sumption. See Estate Wood Commis- pre tax document within the relevant (8th Cir.1990); sioner, 909 F.2d 1155 The held for period. time Court scribed States, 966 F.2d 487 law, Anderson v. United stating a matter of “[t]he the IRS as (9th Cir.1992). Wood, deficiency In a tax §in 7502 ... demon exception embodied suit, § Eighth concluded easily applied, the Circuit penchant a strate[s] Deutsch, “completely displace not the common objective 599 F.2d at did standard.” Wood, Commissioner, delivery.” Boccuto v. 46. See also (3d Cir.1960) There, representative of (stating the F.2d at 1160. the post- he watched the original the the estate testified exceptions contained within post a “one-room” office only exceptions § mistress of 7502 are the version it, rule). postage on Similarly “weigh envelope, put the delivery physical to the it, Miller, suit, put appropriate and it into the the Circuit cancel a tax refund Sixth 7502(a)(1) taxpayer may produce provides a language, applies § meanwhile By plain 5. its receipt registered to establish a tax return is in fact delivered dated when 301.7502-1(e). guard § thus 26 C.F.R. case of and the IRS. See facie filing. Similarly, nondelivery. per the date of A against is deemed the risk explained (c)(2), report § Senate the amendment: 26 C.F.R. 301.7502- subsection (d) 1(c)(2) may produce provide taxpayer timely mailing provides The bill ... that the receipt to electronic mail payment a dated certified or a tax return or is to be consid- against guard filing timely case and payment. As a establish such ered or result, envelope postmark on an where the risk. an individual income tax return in which Commissioner, 71 F.3d 6. In Carroll v. payment are enclosed show that it was and Cir.1995), the Sixth Circuit reluc- date, due the return mailed on or before the despite tantly the reaffirmed Miller payment will be considered as filed or and mailing.” Id. The proof of "unimpeachable paid though received the on time even after recently Miller reaffirmed court noted it had due date. decision en (1966), to reconsider the and declined Rep. reprinted, S. No. 1625 7502(c)(1) at 1232. banc. Id. 3677. Section U.S.C.C.A.N. postal post- mail.” at 1157. that the clerk outgoing Id. she witnessed bundle testified, recalling place envelope also mark her return and postmistress placed mailing pouch. Additionally, a friend postmarked envelope she Commissioner, accompanied taxpayer post mail. The who to the outgoing hand, taxpayer go “adduced no evidence office testified she saw the on the other post that the did not into the office the return before the tax court reject- Id. The court come out of the office without the receive the return.” argument rejected that 7502 “re- return. The court the IRS’s ar- ed the IRS’s delivery” gument provisions quires actual under subsection “the of 26 U.S.C. (a)(1) delivery by 7502 set forth the exclusive means avail- (c). taxpayers prove timely under subsection Id. at 1158. able to who wish to words, tax argued reg- filing other the IRS “absent of a federal return or claim for Anderson, ... istration or certification refund.” 966 F.2d at 489. Rather, as to applied bears the risk of loss document the Court held “[a]s case, actually [taxpayer’s] language which the IRS claims not to have facts of Instead, the Court read forth received.” Id. set an exclusive 7502(c) prove as a “safe harbor” because Con- limitation on admissible evidence to gress timely mailing preclude intended 7502 to benefit the tax- and does not appli- payer. H.R.Rep. reprinted No. cation of the common rule.” law mailbox in 1954 U.S.C.C.A.N. Id. pre-

Whether or not the common law find that the facts in [taxpayer’s] We sumption generally, continues to exist case are analogous, adopt simply agree Eighth reasoning do not Circuit’s in Wood. § of intended [Taxpayer] provided proof enactment direct of a application presumption timely postmark to foreclose of a actually because she 7502(a)(1) § of within in those the postal stamp saw clerk her docu- circumstances, in which the In postmark require- cases ment. such we find conclusively can be [taxpayer] ments the section was able to establish of established, [timely] as here. that her ... return post- was .... marked added).7 Id. at (emphasis Id. at 491. The Ninth Circuit followed rea- Wood’s Anderson, soning in Lastly, unpublished a tax refund suit. In two circuit court Anderson, taxpayer testified at trial addressing decisions the issue at hand opinion ceipt. provision 7. The Tax Congressionally Court’s en banc in Estate The Commissioner, sanctioned, Woodv. 92 T.C. 1989 WL proof, assured method of how- (1989) (en banc), ever, logic any does not in law or forbid aff'd (8th Cir.1990), separate opin like the three Congress expressed other method unless in- case, differing ions in this illustrates the views tent to exclude other methods. No such question § supplants on the of whether 7502], expression §[in exists Eight judges the mailbox rule. concluded the judges Id. at 797-98. Five concurred in the taxpayer rely presumption could aon that the result because of "the rare concurrence of properly IRS received a mailed document ab by [taxpayer] prove events which was able to presumption: sent evidence to rebut the physical ... the date of the without 7502(c) facie evidence rule of judges Id. at 802. Five evidence[.]” dissent appears to be a “safe harbor” within presumption delivery upon ed because "the words, taxpayers § 7502. In other if mail first class cannot be used to by registered they or certified mail are as- supply delivery requirement 7502.” having prima sured of facie evidence of Id. delivery by presenting postmarked re- presented has a 1984 return [Taxpayer] In Davis v. United noteworthy. are (Fed.Cir.2000) 1988. He has testified he remem- dated 2000 WL immediately be- bers return Circuit held Federal (unpublished), the lunch his accountant in 1988. fore testimony was uncorroborated presents to [taxpayer] evidence of the law” “under view insufficient erred, suggest the Tax Court is his own a refund timely filing of establish testimony at trial. self-supporting claim: given the bene- [taxpayer] if were at *2. Even Id. approaches of the the more liberal

fit of III. Circuits, his own un- and Ninth Eighth be insuffi- testimony would illustrates, corroborated As the case law his refund timely filing of prove cient to what, anything, if remains of question claim_[I]n Wood, trig- common rule after law mailbox timely receipt gered question I do not easily is not answered.8 testimony of the through the IRS §of that a strict construction handled, stamped, postal worker who approach as the of the Second and Sixth claim. The (and the refund postmarked Hartz), “an provides Circuits corrobo- in Anderson offered objective easily applied, standard.” who ac- testimony person from a rating Deutsch, I am not 599 F.2d at 46. Yet [Tax- office. companied her lan upon plain based 7502’s prepared, testimony, no other presented payer] taxpayer may prove never guage, hold own, that he than his to establish delivery to the of the “undelivered claim. Thus he did mailed his refund registered, of a return” the absence trigger evidence sufficient present certified, In receipt. or electronic the claim receipt words, uncertainty as to given other extent, the IRS. any, Congress if intended to what enacting rule in the mailbox supplant Commissioner, 1999 Id. *3. Wade production to hold the decline (10th Cir.1999) (unpublished), WL certified, or electronic registered, a finding Tax the upheld the Court’s a means receipt are the 1984 return did not mail his taxpayer timely delivery. may taxpayer establish as he claimed: 1988 tax poli- final arbiter of Congress is the a matter of law when A return is filed as If to cy, not this Court. wishes by the to and received it is delivered proving of taxpayers’ the means to “re- restrict exceptions are the IRS. There documents, Congress can delivery tax requirement where ceipt by the IRS” easily “an to establish easily amend 7502 that the tax- persuasive the evidence Section objective standard.” applied, instant file the return. the payer did however, silence, insufficient to case, however, nearly 7502’s there is not rule because entirely supplant the mailbox that the tax to establish enough evidence of statu- principle ais well-established “[i]t when it found clearly court erred [tax- the common tory construction not file his 1984 return. payer] did differing federal court decisions Kimberly Metzger, list Interpre C. 8. generally on the com- addressing 7502's effect I.R.C. Timely-Mailing, Timely- 7502 tation of rule, Institute see Research mon law mailbox Filing Requirements: v. Commissioner Carroll ¶ America, T- Tax Coordinator Interpretation Federal Di and Liberal/Conservative (2d ed.2004). lemma, a 10774 For 28 U. Tol. L.Rev. Circuit, deemed to ought repealed, Eighth not to be be I require would more of the statute language unless the be clear than proof mailing, mere such as direct purpose.” for this specific proof of postmark which is “verifiable Norfolk be- Housing Auth. v. Chesa Redevelopment yond any self-serving testimony of a tax- Co., 30, 35, Tel. peake & Potomac payer who claims that a document was (1983) (inter L.Ed.2d 29 104 S.Ct. Wood, timely mailed.” 909 F.2d at 1161. brackets, quotations, ellipses nal omit opined As the Ninth Circuit in Lewis v. ted). adopt argu I decline IRS’s ment that 7502 abolishes the mailbox Cir.1988): Service, course, “The does because, contrary Hartz’s not taxpayer’s have to take a unsupported view, language of present word, a taxpayer but when with an un- compel “Congress such a result. must blemished record for paying pro- taxes if change the statute’s words a different duces circumstantial supporting evidence policy.” result is desired as a matter of tax word, his government needs more than Soliman, Commissioner 506 U.S. skeptical a smile to support its doubt (1993) 701, 121 113 S.Ct. L.Ed.2d 634 added). credibility.” (emphasis (Blackmun, concurring).9 J. time, I At the same deem unwise Allegations- of mailing easy are to make Judge Seymour’s apparent unconditional disprove. and hard to Benavidez v. Cf. endorsement of the mailbox rule based City Albuquerque, 101 F.3d solely upon a uncorroborated (10th Cir.1996) (recognizing proving self-serving testimony of mailing, especial difficult). negative may be Because the ly history where that has a IRS, taxpayer, not the controls the untimely filing returns. Such an endorse IRS, of a tax taxpayer, not the necessarily ment jury would result has access to evidence demonstrating every trial taxpayer, regardless time a the return has been mailed. To establish circumstances, surrounding alleges outside the ex timely mailing. No Circuit Court has ceptions to physical delivery rule con and, made such an endorsement unlike §in tained types burden these Judge Seymour, I decline invi of cases thus rests on the agree tation to be the first. with the make “a meaningful evidentiary showing” Eighth and Ninth Circuits’ narrow hold at the outset. National Archives and Anderson, ings in Wood and which turned Cf. (1) Favish, Records Admin. v. 541 U.S. postmark, evidence of an actual -, 1570, 1582, 158 evidence of apart from the L.Ed.2d 319 (2004).10 taxpayer’s self-serving testimony. Like Judge 9. Hartz criticizes compelling the venerable rule of tax cases where evidence of mail- (of Congress exists. undoubtedly construction aware) derogation is that statutes in Judge Seymour suggests, allegations 10. As of strictly common law should be construed. non-receipt may disprove be as to difficult (at case) suggests replacing He least in this allegations receipt. Op. See Dissent. at "compelling with a inference” test. See Con- 1198. The critical difference is the burden of Op. cur. at 1196-97. I doubt such a test proof types taxpay- in these of cases is on the bring any certainty statutory would more to er, Only not the prof- IRS. after the event, any agree construction. I cannot proof presumption fers to sufficient raise a construed, reasonably that compels timely mailing production does the burden of the inference that intended to en- proffer proof shift to the IRS to sufficient tirely abolish the non-receipt. common law mailbox rule in returns; timely” mailing invoking the er and before sure, tax the IRS loses To be nevertheless, presumption. the best protect running the clock position with respective depositions, Taxpay- In their evidence independent by procuring himself they signed stated and dated their ers whether mailing, postmark and/or joint return on March 1998. Per- or testimony, corroborating receipt, so, Seymour, I do haps but unlike a true where especially This is otherwise. particularly probative not find such no is involved because refund or credit timely” mailing. id. at “proper and verify receipt. check will exist cancelled Importantly, point, on this Mrs. I would hold absent Accordingly, proof no did not Sorrentino offers —she or dated postmark of an actual some pre- or Mr. mail the return see Sorrentino that tax documents receipt, a or take the pare the return in fact mailed to the IRS were allegedly Mr. return to the office. Sorrentino solely a upon arise based does not received specific date he mailed could not recall the testimony.11 De- self-serving return, he mailed it to the but stated assertion, contrary Judge Seymour’s spite IRS, affixed, during the postage sometime a credibili- require does not holding such a He did not days first five of March 1998. Rather, testimony ty determination. mail; nor he registered use certified or did truth, alone, is insufficient as assuming its any postal stamp postmark worker a see a matter of law to establish envelope. Mr. further Sorrentino delivery. over six September stated return, he con- months after his IV. inquire on the status of tacted the IRS case, have a who Taxpayers, In this informed the IRS had the refund. When returns, no offered history filing belated receiving the he faxed no record of of a independent proof copy of the return which was the IRS from Mr. Sorren- mailing apart evidence 10-2-98, IRS, Austin “Received stamped Unlike self-serving tino’s testament. any view of Circuit Court Texas.” Under I not believe Mr. Sor- Judge Seymour, do version construing the current precedent invoke sufficient to testament rentino’s self- Mr. Sorrentino’s of I.R.C. presumption. rule’s rebuttable the mailbox corroborating serving testimony, without flawed, my logic is Judge Seymour’s evidence, presump- is insufficient to raise apparently believes opinion, because she tax Taxpayers’ 1994 the IRS received tion pre- creates the “factual the mailbox rule 2,1998. prior to October return at 1198. To Op. Dissent. sumption.” See judg- Accordingly, mail- we REVERSE recitation of the contrary, as her court and REMAND reveals, of the district proper ment see id. box rule to dismiss with instructions a rebuttable timely mailing raises subject ju- matter for want of in fact refund suit mailing was presumption that the court’s order The district simply would risdiction. by the addressee. received Taxpayers awarding and costs to the making fees to their burden Taxpayers hold § 7430 is VACATED. pursuant to I.R.C. evidentiary showing “prop- meaningful may normally expect such refund timely a refund taxpayer mails his tax return 11. A who 6611(e), expiration days, § of the forty-five know well before I.R.C. should within see fact period whether the IRS in limitations year § of limi- 6511's three statute within well illustrate, expi- after the return. To received tation. taxpayer claiming filing period, a ration HARTZ, Judge, concurring Congress Circuit bother to provision enact a en abling Secretary to issue a certified- Judgment only delivering and an 7805(a) regulation? § Under I.R.C. Opinion. Secretary general authority has I Judge concur with Baldock revers- “prescribe all needful rules regulations judgment of the district court and for the enforcement of [the I.R.C.].” This remanding with instructions dismiss authority frequently forcefully exer An interpretative regulation cised. subject for under refund suit want of § 7805 could have set forth how the com jurisdiction. matter I respectfully dis- mon-law applies mailbox rule to certified however, agree, respect recognize mail. that under current law grounds for reversal. explicitly regulation may authorized be Both Judge Judge Seymour Baldock and greater entitled to deference in the courts regulation believe that the than a only by common-law mailbox authorized § generally Gregg 7805. See Polsky, D. § survives the enactment of I.R.C. Treasury Can Overrule the Supreme They apparently read that statute as Court?, 84 B.U. L.Rev. 210-11 merely providing a safe proving harbor for not, however, I do believe that such a timely delivery of a tax or pay- document subtlety could have motivated the 1958 ment —the if is home free Congress. receipt registered has a for Second, if the common-law mailbox rule mail, certified taxpayer may but the still why survived Congress did limit prove timely delivery be able to by other the Secretary’s regulatory authority to evidence. I do not share that belief. promulgating regulations solely with re- 7502(c) “(1)”— §If had paragraph spect to Why certified mail? give not also the Secretary explicit authority proper registration which states that to issue of an regulations concerning when evidence re- prima item of mail is proof timely facie garding regular mail constitutes fa- delivery might agree interpre- with the —I cie delivery? There may tation of 7502 shared the other mem- (intended-to-be) be my clever answers to panel. bers this But it is too difficult to questions rhetorical concerning 7502(c)(2) square interpreta- with their 7502(c)(2); suspect they but I would 7502(c) 1958, § tion. was amended smell of the lamp. adding to registered-mail provision, analysis Baldock’s of the matter the following language: “ invokes the ‘well-established principle of (2) Certified Secretary mail.—The [of statutory construction that the common Treasury] provide is authorized to ought not to be deemed to be repealed, by regulations the extent to which the unless the language of the statute be clear ” provisions of paragraph of this specific sub- purpose.’ this Op. at 13- 14 (quoting respect Redevelopment section with to prima facie evi- Norfolk Housing Auth. v. Chesapeake & Potomac dence of and the date Co., 30, Tel. 464 104 apply shall to certified mail. (1983)). L.Ed.2d 29 This canon of con- If the common-law mailbox rule survived struction, however, can eviscerate the will enactment of paragraph new if not confined to proper its problematic First, ways. why is, most, two sphere. did It an aid in interpret- Also, law is an' essential com- public no the common language.. There is statutory law, providing of the ponent law. fabric the common against changing policy n (misused), assumptions against which background not used be The canon should be read. But statutory language should past, in as a tool as has been a “clear-statement” impose we should not innovation. legislative hostile to courts statutory language ex- Pound, requiring that Common Roscoe generally every proposi- plicitly negate common-law Harv. L.Rev. 383 Legislation, 6 Law and forget subject. on the We must not almost a tion Dean Pound wrote As statutory that our task is to construe the century ago: an obstacle to establish language, deroga- in that statutes proposition course for those who draft the laws. to be con- the common law are tion of Redevelopment, persuasiveness legisla- that strictly ... assumes strued Norfolk that example, point rests on the As something deprecated. to be tion is lan- pertinént at issue took the statute dealing any consequence no statute of clearly that previous from a statute guage can private be any relation with common-law rule. preserved the derogation in of the com- anything but law, and the the social reformer mon us, statutory lan- In the case before doctrine, reformer, must under this legal compels the inference guage legisla- that the face the situation always field, providing occupy intended to was fruit of represents tive act which timely delivery by which the sole means in sympathy no labors will find their Taxpayers’ proof proved. can Because be it, construed apply will be those who statutory requirements, not meet the made to interfere strictly, and will be treated as un- their refund claim must be possi- little as quo the status timely. this attitude to- regard Some ble.... SEYMOUR, dissenting Judge, Circuit principle legislation as basic

ward delivering an Judgment from the are content jurisprudence. Others . Opinion. and fundamental make of it an ancient law. either principle of the common con- Judge Baldock’s agree with While it as a wise they agree praising event entirely § 7502 does not clusion that I.R.C. It not difficult institution. useful rule, Op. law mailbox supplant the common however, show, it is not neces- appli- his 1193-94, I must dissent from legal system; sary and inherent rule in this case. cation of the mailbox an and fundamental that it is not ancient relies,' improperly opinion Judge Baldock’s law; that it hád of the common doctrine credibility, deter- upon a my judgment, interpre- notions of origin its archaic suit at the Sorrentinos’ mination to dismiss obsolete, and sur- generally, now tation erects judgment stage and summary form present in its because vived to the mailbox unreasonable barrier jealousy of the reform move- judicial implementation. rule’s ment; wholly inapplicable and that it is rule, mailbox common law “Under the in American law place to and out of a document timely mailing proper and today. that it' is a rebuttable raises omitted). (footnotes Id. at 387-88 Anderson v. by the addressee.” received course, Cir. may employ terms of

Of statutes Walker, 1992) meaning provided by (citing Rosenthal art that have a 193-94, L.Ed. 395 law, ordinarily as- and one can common Baldock, (1884)). According to statutory meaning does not that the sume testimony, with- “self-serving meaning. Sorrentinos’ depart from the common-law evidence, corroborating significantly, question out is insufficient More the wis- which, definition, by dom of a rule deni- [timely] the presumption to raise a grates reliability and truthfulness Op. 1994 tax return.” received average taxpayers pre- the scores of who testimony by party at But pare place their own tax returns and them self-serving, yet clearly it is a suit is ad in accompanying the U.S. mail without wit- his or her case in a support missible to According majority, nesses. to the summary judgment. motion See 10A taxpayers courts cannot trust these unless ARTHUR R. Miller WRIght, Alan Charles they brought along have friends who will Mary Kay Kane, Federal Practioe and swear to the of their returns. (at summary judgment, Prooedure Such a rule seems to me un- completely that in party affidavit of is file “[a]n warranted. court”). by the case will be considered self-serving quality testimony however, The of the Ultimately, I dissent because credibility, goes Judge evidentiary to its which is to be Baldock’s hurdle to the factual judged by Credibility presumption the trier of fact. of the mailbox rule runs very purpose. counter to the rule’s determinations are to be made at sum Judge justifies by Baldock his conclusions mary judgment, certainly are not to be stating: “[allegations easy are by appellate made court. Foster v. to make and disprove.” Op. hard to Inc., Alliedsignal, 293 F.3d course, 1194. Of the same is true of alle- (10th Cir.2002) (quoting Anderson v. Lib gations of non-receipt. The mailbox rule Inc., erty Lobby, designed to redress this state of incon- (1986)) (noting S.Ct. 91 L.Ed.2d 202 evidence, so, clusive initially, credibility inappropri determinations are favor of party claiming mailing. summary judgment); ate at Anderson v. Schikore v. BankAmerica Supplemental 564, 575, City City, Bessemer 470 U.S. Plan, Cir.2001) Ret. (1985) (ex 84 L.Ed.2d (“the presumption of receipt established plaining unique position trial court is in applied] precisely mailbox rule [is judge credibility and its determinations de type swearing avoid the contest which great serve appellate deference from involved”). parties presently are court). might very I.R.S. well defeat the factual I am doubtful of the worth of the corrob created the Sorrentinos’ orating evidence Baldock’s rule re by successfully attacking evidence the cou- quires. corroborating evidence ple’s credibility demonstrating effective Anderson, 966 F.2d at consisted of the procedures prevent within the I.R.S. that testimony of a Mend accompanied who loss of returns. At stage litiga- in the office, watched the tion, however, we have the sworn return, taxpayer go with her tax and testimony of the they Sorrentinos question exit without it. Id. I why this March, both signed early the return in Mr. substantially evidence is more convincing Sorrentino’s testimony sworn that he Sorrentinos, than presented by promptly mailed the return signing after including testimony the sworn it, Mr. and copy of that and the I.R.S.’s they Mrs. Sorrentino that signed the re allegation non-receipt. The mailbox March, turn in early testimony sworn receipt steps rule’s in to of Mr. Sorrentino that he fact, mailed the re genuine create a issue of material March, turn in early and a copy majority’s dismissal of the case at this 1, 1998. return dated March juncture improper. reasons, respectfully foregoing

For the

dissent. JENNINGS, Plaintiff-Appellant,

Alison STILLWATER, municipal

CITY OF

corporation; Detective Robert Buz

zard, individually and in official his city

capacity police for the officer Stillwater; Little, indi Officer Les

vidually capacity, his official

Defendants-Appellees.

No. 03-6206. Appeals,

United States Court

Tenth Circuit.

Sept.

Case Details

Case Name: Sorrentino v. Internal Revenue Service

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Sep 14, 2004

Citation: 383 F.3d 1187

Docket Number: 02-1114, 02-1137

Court Abbreviation: 10th Cir.