Ninth Circuit Holds Reg. Validly Overrules Case Law; Disallows Parol Evidence of Timely Mailing

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In Baldwin v. United States, 2019 U.S. App. LEXIS 11036 (9th Cir. April 16, 2019), in a case of first impression in the appellate courts, the Ninth Circuit has held that a 2011 regulation under section 7502 is valid under the deference rules of Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984), and Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005), and therefore it invalidates all prior case law in some Circuits (including the Ninth) holding that the common law mailbox rule can be used to prove the IRS’ timely receipt of a document by parol evidence. The Circuit reversed the district court and directed it to dismiss the case because the only evidence offered of timely mailing of a Form 1040X refund claim was the testimony of the Baldwins’ employees that they remember timely posting the envelope containing the claim by regular mail months before the claim was due – evidence that is only relevant if the common law mailbox rule still exists in the tax law. I blogged on Baldwin before the oral argument here.

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Facts

Baldwin is a tax refund suit. There, the taxpayers reported a loss on their 2007 income tax return, filed on or before the extended due date of October 15, 2008. They wished to file an amended return for 2005, carrying back the 2007 loss to generate a refund in 2005. Under section 6511(d), this had to be done by filing the amended return within three years of the due date of the return generating the loss – i.e., by October 15, 2011. The taxpayers introduced testimony of their employees that the employees mailed the 2005 amended return by regular mail on June 21, 2011 from a Hartford Post Office to the Andover Service Center. But, the IRS claimed it never received the Form 1040X.

The California district court followed Anderson v. United States, 966 F.2d 487 (9th Cir. 1992), in which the Ninth Circuit had held that the enactment of section 7502 in 1954 did not eliminate the common law mailbox rule and still allowed taxpayers to prove by parol evidence that a document not sent by registered or certified mail or a designated private delivery service was actually mailed and so was presumed to have been received by the IRS prior to the due date. The district court credited the testimony of the employees and held that the refund claim was timely filed. The court later awarded the taxpayers a refund of roughly $167,000 and litigation costs of roughly $25,000.

The DOJ appealed the loss to the Ninth Circuit, where it argued that the suit should have been dismissed because the refund claim was not timely filed. The DOJ argued that in August 2011, the IRS adopted a regulation intended to overrule some Circuit court opinions (including Anderson) that had held that the common law mailbox rule still survived the enactment of section 7502. At least one other Circuit had agreed with Anderson; Estate of Wood v. Commissioner, 909 F.2d 1155 (8th Cir. 1990); but several other Circuits had disagreed and held that the common law mailbox rule did not survive the enactment of section 7502. See Miller v. United States, 784 F.2d 728 (6th Cir. 1986)Deutsch v. Commissioner, 599 F.2d 44 (2d Cir. 1979)See also Sorrentino v. Internal Revenue Service, 383 F.3d 1187 (10th Cir. 2004) (carving out a middle position).

As amended by T.D. 9543 at 76 Fed. Reg. 52,561-52,563 (Aug. 23, 2011), Reg. § 301.7502-1(e)(2)(i) provides, in relevant part:

Other than direct proof of actual delivery, proof of proper use of registered or certified mail, and proof of proper use of a duly designated [private delivery service] . . . are the exclusive means to establish prima facie evidence of delivery of a document to the agency, officer, or office with which the document is required to be filed. No other evidence of a postmark or of mailing will be prima facie evidence of delivery or raise a presumption that the document was delivered.

Ninth Circuit Opinion

The Ninth Circuit began its analysis with a little history: Prior to 1954, there was no timely-mailing-is-timely-filing provision in the Internal Revenue Code. That meant that the only way to timely file a document was for it to arrive at the IRS on or before the due date. At common law, there is a presumption that a properly-mailed envelope will arrive in the ordinary time for mail to go between its origin and destination. At common law, a party could bring in any evidence (including testimony) to show that the envelope likely arrived at the IRS on or before the due date.

In 1954, Congress added section 7502 to the Code. We all think of it as a provision that allows a mailing made on or before the due date to be treated as timely filed, whether or not the IRS receives the document on, before, or after the due date. But, that is not an accurate summary of the provision. In fact, subsection (a) provides, in general, that if a document is delivered to the IRS by the United States mail after the due date, then the date of the United States postmark on the envelope is deemed to be the date of delivery (i.e., filing). Other rules extend the benefits of subsection (a) to designated private delivery services and electronic filing, but only pursuant to regulations. However, subsection (c) also includes a presumption of delivery that applies in the case of use of certified or registered mail: If an envelope is sent certified or registered mail, then (1) the certification or registration is prima facie evidence that the envelope was delivered to the place to which it was addressed and (2) the date of registration or certification is deemed the date of the postmark for purposes of subsection (a).

In Anderson, the Ninth Circuit had held that subsection (c)’s presumption of delivery language (and the regulations thereunder) did not supplant the common law way to prove delivery on or before the due date. Rather, subsection (c) provided only a safe harbor for proof of delivery if certified or registered mail was used. Where ordinary mail was used, there was no statutory provision presuming or denying proof of delivery, so the common law mailbox rule could still operate to allow proof of timely mailing by any evidence.

In Baldwin, the Ninth Circuit noted that under Chevron Step 2, a court must defer to an agency’s interpretation in a regulation if that interpretation is one of the reasonable ways an ambiguous statute could be interpreted. And in Brand X, the Supreme Court held that, unless an appellate court opinion had said that the statute was unambiguous (and therefore Chevron Step 1 would deny any regulatory input), an agency could issue valid regulations overruling that appellate precedent.

In the case of the 2011 regulation under section 7502, the Ninth Circuit in Baldwin held that an interpretation that section 7502 completely supplanted the common law mailbox rule was one of the reasonable interpretations of that statute and that the Ninth Circuit had not, in its Anderson opinion, rested its holding on the unambiguous nature of section 7502’s language. Therefore, under Chevron and Brand X, the regulation barring the use of the common law mailbox rule was valid.

The taxpayers had two arguments that the Ninth Circuit quickly dismissed:

First, the taxpayers argued that there is a rule of construction that makes repeal of common law rules by statute not to be easily implied. With respect to this argument, the Ninth Circuit noted a contrary rule of construction (one that other Circuits had relied on) that when a statute speaks on an issue and makes an exception, that statutory exception eliminates all nonstatutory exceptions. The Ninth Circuit held that the subsection (c) rules presuming delivery in the case of certified or registered mail could benefit by the latter interpretive rule. Thus, these countervailing statutory rules of construction could lead to two different reasonable interpretations of the statute.

Second, the taxpayers argued that the regulation was improperly being applied retroactively, since they had claimed that they mailed the envelope in June 2011, but the regulation was only adopted in August 2011. But, the Ninth Circuit pointed out that the regulation was effective for all documents mailed after September 21, 2004 (the date the regulation was first proposed), and the court did not find that such retroactive effective date violated section 7805(b)(1)(B), which allows the IRS to make its regulations retroactive to the date they are first proposed.

Observations

Several Supreme Court Justices have recently criticized Chevron and Brand X. It is interesting that Judge Watford, who wrote the Baldwin opinion, only predicated the panel’s ruling for the IRS on the basis of reliance on those two opinions. What, then, happens if Chevron and Brand X are overruled? Will the Ninth Circuit’s precedent then revert to Anderson, which allows use of the common law mailbox rule?

Judge Watford also seems to be deliberately vague in his opinion as to the ground on which the district court should dismiss the case on remand. He does not say the dismissal should be for lack of jurisdiction (FRCP 12(b)(1)) or for failure to state a claim (FRCP 12(b)(6)). It would not much matter in this case whether the section 6511 filing deadline were jurisdictional or not, but it might matter in a future case (e.g., one where there was an argument for waiver, forfeiture, or estoppel, but not equitable tolling (see United States v. Brockamp, 519 U.S. 347 (1997) (holding the deadline not subject to equitable tolling, but not discussing whether the deadline is jurisdictional)). Indeed, Judge Watford’s Baldwin opinion really relies on section 7422(a), which requires the filing of a refund claim before a refund suit may be maintained. The opinion states that section 7422(a) also requires a timely claim. In fact, Judge Watford only writes:

The Baldwins then brought this action against the United States in the district court. Although the doctrine of sovereign immunity would ordinarily bar such a suit, the United States has waived its immunity from suit by allowing a taxpayer to file a civil action to recover “any internal-revenue tax alleged to have been erroneously or illegally assessed or collected.” 28 U.S.C. § 1346(a)(1). Under the Internal Revenue Code (IRC), though, no such action may be maintained in any court “until a claim for refund or credit has been duly filed” with the IRS, in accordance with IRS regulations. 26 U.S.C. § 7422(a); see United States v. Dalm, 494 U.S. 596, 609 (1990). To be “duly filed,” a claim for refund must be filed within the time limit set by law. Yuen v. United States, 825 F.2d 244, 245 (9th Cir. 1987) (per curiam).

Judge Watford is the author of the opinion in Volpicelli v. United States, 777 F.3d 1042 (9th Cir. 2015), which we blogged on here and where I was amicus. In that opinion, he held that the then-9-month filing deadline to bring a wrongful levy suit in district court is not jurisdictional and is subject to equitable tolling under recent Supreme Court case law making filing deadlines now only rarely jurisdictional. Note that his language above from Baldwin does not mention the word “jurisdictional” with regard to section 7422(a)’s requirement. Judge Watford may not be wanting to say that section 7422(a)’s administrative exhaustion requirement is jurisdictional, rather than a nonjurisdictional mandatory claims processing rule possibly subject to waiver, forfeiture, or estoppel. It is true that in Dalm (which he cites only with a “see”), the Supreme Court called the requirements of sections 7422(a) and 6511 jurisdictional with respect to a refund suit, but the reasoning of Dalm does not accord with current Supreme Court case law. In 2016, the Seventh Circuit questioned whether Dalm is still good law, though it did not reach the question, writing:

The Gillespies do not respond to the government’s renewed argument that § 7422(a) is jurisdictional, though we note that the Supreme Court’s most recent discussion of § 7422(a) does not describe it in this manner, see Unites States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 4-5, 11-12 (2008). And other recent decisions by the Court construe similar prerequisites as claims-processing rules rather than jurisdictional requirements, see, e.g., United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632-33 (2015) (concluding that administrative exhaustion requirement of Federal Tort Claims Act is not jurisdictional); Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 157 (2010) (concluding that Copyright Act’s registration requirement is not jurisdictional); Arbaugh v. Y&H Corp., 546 U.S. 500, 504 (2006) (concluding that statutory minimum of 50 workers for employer to be subject to Title VII of Civil Rights Act of 1964 is not jurisdictional). These developments may cast doubt on the line of cases suggesting that § 7422(a) is jurisdictional. See, e.g., United States v. Dalm, 494 U.S. 596, 601-02 (1990).

Gillespie v. United States, 670 Fed. Appx. 393, 394-395 (7th Cir. 2016) (some citations omitted). It was this passage from Gillespie that the DOJ cited as grounds for its need to file a post-oral argument memorandum of law in Tilden v. Commissioner, 846 F.3d 882 (7th Cir. 2017), arguing that the section 6213(a) Tax Court deficiency petition filing deadline is jurisdictional and not subject to waiver. The DOJ won that argument in that case, but it is currently before the Ninth Circuit on the issues of jurisdictional and equitable tolling in companion cases on which we previously blogged here.

Carlton Smith About Carlton Smith

Carlton M. Smith worked (as an associate and partner) at Roberts & Holland LLP in Manhattan from 1983-1999. From 2003 to 2013, he was the Director of the Cardozo School of Law tax clinic. In his retirement, he volunteers with the tax clinic at Harvard, where he will be Acting Director from January to June 2019.

Comments

  1. Kenneth H. Ryesky says

    The IRS does it again: Used IRC 7805(b)(1)(B) to evade the maxim that proposed regulations do not have the force of law, and thereby enable itself to make an ex post facto law.

    But don’t blame the IRS, blame the judiciary! Precious few judges on the bench can even come a distant second to Mr. Justice Jackson in understanding taxation, but then again, precious few have ever served as Chief Counsel to the Bureau of Internal Revenue, which Jackson did before making an international name for himself at Nuremburg.

    I previously expounded on the dysfunctional dynamic of the bench’s poor grasp of taxation in “Taxation Unchecked and Unbalanced: The Supreme Court’s Denial of Certiorari in Sorrentino,” 41 GONZAGA L. REV. 505 (2006). [ http://blogs.gonzaga.edu/gulawreview/files/2011/02/Ryesky.pdf ]; Sorrentino was a Section 7502 case, was mentioned in the Baldwin opinion, and cited the aforementioned article of mine.

  2. Norman Diamond says

    “The taxpayers introduced testimony of their employees that the employees mailed the 2005 amended return by regular mail on June 21, 2011 from a Hartford Post Office to the Andover Service Center.”

    It’s interesting that multiple employees testified to participating in mailing a single document.

    Some documents mailed by the US DOJ are accompanied by a certificate of service declaring under penalty of perjury under 28 USC 1746 that the DOJ employee signing the certificate is familiar with DOJ practices which include affixing sufficient postage. Even after I submitted several briefs showing numerous instances where the DOJ affixed insufficient postage, DOJ employees continued committing perjury and courts did not care. A DOJ attorney even pointed out to a court that obviously I received the mail. Well sure, sometimes USPS accepts violations of postage laws depending on who’s doing the mailing and courts accept perjured certificates of service depending on which party violates court rules and commits perjury. I think it wouldn’t make any difference if multiple employees had participated in committing perjury.

    “Other than direct proof of actual delivery, proof of proper use of registered or certified mail, and proof of proper use of a duly designated [private delivery service] . . . are the exclusive means to establish prima facie evidence of delivery of a document to the agency, officer, or office with which the document is required to be filed. No other evidence of a postmark or of mailing will be prima facie evidence of delivery or raise a presumption that the document was delivered.”

    Yet again, the US government and courts violate the US Supreme Court ruling in Cook v. Tait. The IRS used to accept (at least sometimes) returns that were delivered to IRS offices in US embassies and consulates, but the IRS has closed them all. Many countries participate in the EMS postal system, which USPS calls Global Priority Express, and from some countries the cost is less exhorbitant than registered mail. But after this ruling, even if USPS’s web site reports that an EMS mailing was delivered, courts will accept the IRS’s assertion that the mail was not delivered.

  3. Bob Kamman says

    What happens when a taxpayer has a certified-mail receipt, and IRS says it has no record of receiving anything? Certified mail does not get more secure handling than regular mail, and IRS often does not return those green post cards. (Just ask my client in New Mexico who paid for one but didn’t get it back from the Fresno Service Center, last month.)

    Maybe it would be a good idea to send an empty envelope to IRS by certified mail every few months, just in case proof of something is needed at a later date. I doubt that IRS keeps a master file of empty envelopes. But is parol evidence allowed now anyway, regarding the contents of any envelope mailed to IRS?

    Like many tax preparers, I spent Monday preparing and mailing Form 4868 and Form 7004 extension requests to several Service Centers. (I don’t recommend putting this off until the last day, but sometimes the returns that can be finished take priority over those that can’t.) I put most of them in batches of a dozen or more, with a cover letter listing each one. Then I mailed them in a flat-rate Priority Mail envelope with a label I printed at my office. The tracking number on the envelope was on the cover letter. I then dropped these in the mail slot inside my local Post Office, where the parking lot was almost full. The tracking shows they were accepted by the system on April 15.

    If IRS claims any of these extension requests were not received, do I have sufficient evidence without having used certified mail? Probably not. But most of them are getting refunds anyway. I am aware that extensions can be filed electronically through third-party vendors, some of whom are headquartered offshore. But that involves agreeing to a contract with IRS that it can later modify and I can’t.

    • Kenneth H. Ryesky says

      The problem there is that for high-volume recipients who regularly are the addressees of Certified and/or Registered Mail, the USPS delegates the responsibility of documenting the receipt of a Certified/Registered mailpiece to the addressee. I have had (more than) a few instances of the IRS’s (and NYSDTF) failure to properly and accurately note the receipt of such a mailpiece, both during my time with the IRS and afterward in my own law practice (and in my own personal tax affairs). Each time, I have written to one or more of my Congresscritters, whose staff people have gotten confirmation from the USPS (often on shaky evidence); the Congressional letter feels far more secure than the USPS’s website records alone.

      • Norman Diamond says

        If you sent the mail from within the US, you can bring your mailing receipt to a post office, show that you paid for a return receipt, and get a printout from USPS’s intranet. Of course once you’ve seen one such printout you know how to fake others, but for the time being it seems to be accepted.

        If you sent the mail from a country that mostly complies with the treaty of Universal Postal Union, you can bring your registered mail receipt to a post office, show that you paid for a return receipt, submit a form requesting investigation of registered mail, write and submit a duplicate Advice of Receipt card. USPS ignores the duplicate AR card but they send a fax to the originating post office. If USPS’s fax asserts delivery then you’re set (though again once you have one you know how to fake others). If USPS’s fax asserts the letter disappeared without trace then your post office offers token compensation, but of course not compensation for the damage caused by USPS or IRS. The same procedure can be used if the AR card comes back without being completed, which kind of indicates non-delivery. One time when I submitted a claim for an AR card that came back uncompleted, a few days later USPS’s web site asserted delivery in the US after I received the uncompleted AR card, so I’m not exaggerating by describing it as an indication of non-delivery.

        If you sent the mail from a country that mostly doesn’t comply with the UPU treaty, you’re probably out of luck. If such country is adjacent to the US, you might consider crossing the border to send US domestic certified mail, but I don’t know how to get a return receipt.

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