Petition was 11 seconds too late, Tax Court holds

The Tax Court rejected a taxpayer’s arguments that because he experienced problems that delayed electronically filing his Tax Court petition, the court should accept the petition despite having received it 11 seconds after midnight on the day after the last day permitted for filing.

Facts: The IRS sent a notice of deficiency dated Sept. 12, 2022, to the taxpayer, Antawn Jamal Sanders, specifying that the last day to file a Tax Court petition contesting the notice was Dec. 12, 2022. Sanders established an account on the court’s electronic filing system and at 9:59 p.m. on Dec. 12, 2022, downloaded onto his Android phone the PDF forms to prepare his petition. Unable to send the forms from his phone, Sanders switched to a computer, from which at 11:56 p.m. he tried unsuccessfully to log in to the court’s system. One minute later, he succeeded in logging in.

After he logged in and started the filing process, Sanders was slowed down by having “to do 3 other steps” before he could actually file his petition. Additionally, he had to refer to the instructions several times. Throughout this process and at all relevant times, the court’s electronic filing system remained fully operational.

Sanders began uploading his petition at nine seconds after midnight, according to the court’s records, and the upload was complete two seconds later. The court’s system automatically recorded it as received and filed at 12:00 a.m. on Dec. 13, 2022.

Issues: The IRS filed a motion to dismiss the case for lack of jurisdiction, arguing that the court did not receive Sanders’s petition within the period allowed under Sec. 6213(a), generally 90 days from the mailing date of a notice of deficiency or any later date specified in the notice. If the 90th day is a Saturday, Sunday, or legal holiday in the District of Columbia, the petition may be filed on the next day that is not a Saturday, Sunday, or such holiday.

Sanders filed an objection to the IRS’s motion, arguing that, after he had made several unsuccessful attempts to send his petition “well before midnight,” he was finally able to begin the upload before that cutoff and that he believed it could be proven that the court’s electronic filing system “had errors” and that his “upload was loading before cut off time.”

The Center for Taxpayer Rights submitted an amicus brief arguing that Sanders’s petition should be treated as filed when he relinquished control of it, akin to the timely mailing rule of Sec. 7502, and urging the court to view the timeliness of such an electronically filed petition “through the lens of equitable tolling.”

Under Sec. 7445, Tax Court Rule 10, and case precedent, a petition is ordinarily considered filed when the Tax Court receives it. If filed electronically, this must occur at or before 11:59 p.m. Eastern time on the last day of the applicable period for filing (Tax Court Rule 22(d); see also Nutt, 160 T.C. No. 10 (2023), discussed in “Tax Matters: Time Zone Difference Makes Court Petition 5 Minutes Too Late,” JofA, August 2023).

The Tax Court noted that it has held that taxpayers may have additional time to file a petition when its clerk’s office or other filing location is inaccessible or otherwise unavailable to the general public. In Guralnik, 146 T.C. 230 (2016), the court found that a winter storm on the last day for filing prevented the taxpayer’s petition from being delivered to the court that day. Because the taxpayer in that case had not used the U.S. Postal Service or a designated delivery service, he could not rely on the Sec. 7502 “timely mailing rule” that treats a return, claim, statement, or other document as filed on the date of its postmark or similar private delivery service mark. Nonetheless, Rule 6(a) of the Federal Rules of Civil Procedure allowed the court to accept the taxpayer’s petition because of its snow day closure.

Subsequently, Congress enacted Sec. 7451(b), which codified this rule. The statute also defined “filing location” for this purpose to include “any on-line portal made available by the Tax Court for electronic filing of petitions.” Thus, the court noted, an outage or systemwide in-accessibility of its electronic filing system could be treated similarly to the physical closure of its clerk’s office in allowing a filing beyond the statutory deadline.

But this did not appear to have happened in Sanders’s case, the court stated. Moreover, federal bankruptcy courts have held, and the Federal Rules of Bankruptcy Procedure provide, that such electronic inaccessibility does not include errors or technical difficulties on the user’s end, the Tax Court noted (citing In re Beal, 616 B.R. 140 (Bankr. D. Utah 2020), and In re Sizemore, 341 B.R. 658 (Bankr. N.D. Ind. 2006)). In Size-more, the bankruptcy court compared such user problems with a taxpayer’s attempt to hand-deliver a petition foiled by the taxpayer’s being stuck in traffic on the way to the clerk’s office.

The court noted that its records indicated that the filing system was operating at all times relevant to Sanders’s attempts at, and ultimately successful, filing. Another user was able to log into the system one second after Sanders’s failed attempt to do so, and Sanders’s own successful login occurred a minute later.

The court denied the amicus argument by the Center for Taxpayer Rights that the petition should be considered filed when Sanders relinquished control over it, noting that Sec. 7502 and its timely mailing rule do not by their terms apply to electronically filed Tax Court petitions. Regs. Sec. 301.7502-1(d)(3)(ii) does provide that a document transmitted via an authorized electronic return transmitter to the IRS is considered filed when the Service receives it “on its host system.” But even if it were to apply those regulations or accept the “relinquished control” argument, that would not avail Sanders, who, records showed, did not begin uploading his petition until nine seconds after midnight and thus after the deadline.

With respect to the center’s equitable tolling argument, the court stated that the time limit for filing a petition in a deficiency case clearly is jurisdictional, to which equitable considerations may not be applied (citing Hallmark Research Collective, 159 T.C. No. 6 (2022)).

Holding: Thus, because the court’s electronic filing system was accessible to the general public on the relevant date and times, the court held that Sanders did not file his petition within the time prescribed by Sec. 6213(a), which may not be equitably tolled. Thus, the court was required to dismiss his case for lack of jurisdiction.

■ Sanders, 160 T.C. No. 16 (2023)

— Paul Bonner is the JofA’s tax editor.