Filing a Day Late Can Be Timely Under Tax Court E-Filing Rules and So is Filing an Income Tax Return Ten Days Later After E-File Rejection

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Today’s brief post discusses a couple of technology related issues. The first comes on a tip of the hat to Lew Taishoff, who posted on Ryder v Commissioner. Ryder involved the IRS’s moving on January 30, 2016 to file amended answers. The problem from the taxpayer’s perspective was that at trial calendar the IRS was ordered to move to amend the answers by January 29, 2016. With the January 30 filing, taxpayer objected, claiming the filing was out of time.

Judge Holmes, in his direct style, addressed the issue, starting his order with the question “When is a deadline of January 29, 2016 met by filing a document on January 30?” He answered as follows:

Petitioners objected because the motions were filed out of time. All ready to pounce on dilatory counsel, the Court set up a conference call on March 8, 2016. Respondent’s counsel patiently pointed out to us and petitioners’ counsel the Court’s own website, where we have posted the Practitioners ‘ Guide to Electronic Case Access and Filing. Page 32 plainly states that “A document is considered timely filed if it is electronically transmitted no later than 6:00 a.m. Eastern time on the day after the last day for filing.” United StatesTax Court, access.htm (last visited March 21, 2016).

The issue in Ryder reminds me of the rewritten Chapter 4 of the Saltzman/Book treatise IRS Practice and Procedure which I have been working on with Marilyn Ames. In the rewritten chapter (coming out in the next month or so) we discuss the numerous developments in the 7502 timely mailing equals timely filing rules (many discussed in PT). Given the shift to e-filing since the original time that the book was written, we also added an extensive discussion of the e-file rules, including when IRS rejects an e-filed individual income tax return that cannot be rectified taxpayers “must file the paper return by the later of the due date of the return or ten calendar days after the date the IRS gives notification that it rejected the electronic portion of the return or that the return cannot be accepted for processing.” (as per the Handbook for Authorized E-file Providers of Individual Income Tax Returns). The Handbook at page 30 (Pub 1345) also goes on to state that the taxpayer when snail mailing the return should include an explanation why they are filing the return after its due date.


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Professor Book is a Professor of Law at the Villanova University Charles Widger School of Law.


  1. Carl Smith says

    I just wanted to warn the Tax Court of something the IRS may yet argue, since the Court, in the near future, is expected to allow e-filing of petitions:

    It is well-settled that deadlines for filing created in court rules are not jurisdictional, so a court is free to bend its own rules any way it likes. But, that is not the case with jurisdictional time periods established by Congress. See Kontrick v. Ryan, 540 U.S. 443, 453-454 (2004) (holding a time limit in a bankruptcy rule nonjurisdictional and stating that courts, through their rules, can neither create nor withdraw jurisdiction; only Congress can alter jurisdictional rules).

    If the 90-day period in which to file a deficiency petition is jurisdictional (as the Tax Court and Circuit courts have always held — in rulings with which I agree), then if the taxpayer e-files before 6 am on the 91st day, the IRS could successfully move to dismiss the case for lack of jurisdiction for failure to timely file. In section 7502, Congress created a modification to its 90-day requirement in the case of timely-mailed petitions that arrive at the court after the 90 days has expired. But, neither rules of the Tax Court nor e-filing instructions on the Tax Court’s website can extend any jurisdictional time period, like that in section 6213(a).

    For those who may point to FRCP 6(a)(3)(A) that allows a complaint to be filed in a district court a day late because the clerk’s office may have been unexpectedly closed (i.e, “inaccessible”) on the last date to file, be aware that not all time periods in which to file in district courts are jurisdictional. And there is no counterpart to FRCP 6(a)(3)(A) in the Tax Court rules — which is why the snow day issue in the Guralnik case blogged on here before may be so tricky.

    Just to mention tax suits, in Keohane v. United States, 669 F.3d 325 (D.C. Cir. 2012), the D.C. Circuit held that the 2-year period under section 7433(d)(3) in which to file a section 7443(a) suit for damages on account of wrongful collection activities in district court is not a jurisdictional time period. Similarly, in Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2105), the Ninth Circuit held that the 9-month period under section 6532(c) in which to file a section 7426 wrongful levy suit in district court is not a jurisdictional time period.

    Of course, Keith and I are raising the question in the Tax Court Guralnik case and in the Tax Court Matuszak case whether the time periods in which to file petitions in CDP and 6015(e), respectively, are truly jurisdictional anymore in light of the same Supreme Court case law relied on by the Circuit courts in Keohane and Volpicelli. If we win our arguments in Guralnik and Matuszak, then at least any Tax Court e-filing rules that extend the period to file such petitions until 6 am on the day after the last day to file under the statute would be valid.

    • Carl need not “warn” the Tax Court:

      Tax Court Rule 13(c) already acknowledges the jurisdictional time period for petitions.

  2. Bob Kamman says

    The six-hour extension appears to be deference to citizens of the American state located six time zones from Washington DC. When Congress prescribes a calendar date, without specifying a time zone, in what part of the country do they intend the date to be determined?

    As may be observed in the halls of Congress, many Members do not drink until after 5pm, but it’s always after 5pm in some part of the world.

    • Someone may have been drinking while writing this comment. There is no “American state located six time zones from Washington, D.C.”

      Indeed, the 50 American states each fall into one of six time zones–but that means Hawaii is but five time zones from, and thus only five hours behind, Washington, D.C.

      The Tax Court’s 6 a.m. next day e-filing deadline therefore occurs at 1 a.m. Hawaiian time. For you tax practitioners there, that means you get an extra hour in which you can either e-file a Tax Court motion…or down another Blue Hawaii.

      • Bob Kamman says

        When it is midnight tonight at the Tax Court, it is only 6 p.m. in Honolulu. Washington DC is GMT minus 3 hours, and Hawaii is GMT minus 9 hours. Nine minus three is six. For more than half the year, DC places itself in the Atlantic Time Zone. We just don’t like putting it that way.

        • Well, we each must be half right.

          I don’t know about D.C. placing itself within the Atlantic Time Zone. You may be right (for the “time” present) because Hawaii does not observe Daylight Saving Time.

  3. As usual, Jason T., you are hilarious. But not in the way you intend.

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