Bloch v. Commissioner of Internal Revenue, 15728

• Decision Date: 05 May 1958
• Docket Number: No. 15728,15731.,15728
• Citation: 254 F.2d 277
• Parties: Bernard BLOCH, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

254 F.2d 277 (1958)

Bernard BLOCH, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

Nos. 15728, 15731.

United States Court of Appeals Ninth Circuit.

March 28, 1958.

Rehearing Denied May 5, 1958.

Bernard Bloch, Detroit, Mich., appellant, in pro. per.

John N. Stull, Acting Asst. Atty. Gen., Elmer J. Kelsey, Lee A. Jackson, Charles B. E. Freeman, Attys., Dept. of Justice, Washington, D. C., for appellee.

Before HEALY, BONE and ORR, Circuit Judges.

ORR, Circuit Judge.

Deficiencies in income taxes were assessed against appellant by the Commissioner of Internal Revenue for the years 1947, 1948, 1952 and 1953. At the time the assessments were made and notice thereof given, appellant was an inmate of Terminal Island Federal Penitentiary.

Appellant prepared petitions for a redetermination of the deficiencies and filed them with the Tax Court. The petitions were dismissed for the reason that they were not filed within the 90-day period required by sections 6213(a) and 7502(a) of the 1954 Code, 26 U.S.C.A. §§ 6213(a), 7502(a); and that therefore the Tax Court lacked jurisdiction to entertain them.

In order to clearly distinguish the two petitions under consideration, we will refer to them by the numbers endorsed thereon in this Court. No. 15,728 refers to the assessment for the years 1952 and 1953, notice of which was mailed to appellant on November 6, 1956. It is established without contradiction that appellant prepared a petition to the Tax Court asking a redetermination of the assessment and on the first day of February 1957, the 87th day after the issuance of the notice of deficiency, placed it in the hands of a prison official known as a "case worker" who had the duty to censor mail sent out by appellant. The petition was mailed in a franked envelope and no postmark appears thereon, but the date of mailing, the 91st day, is learned from a covering letter accompanying the petition. A letter from the Warden addressed to the Tax Court during the time the motion to dismiss was pending states, "* * * but it was not possible to get the cover letter dictated and typed until February 5, 1957 the 91st day." In addition the letter from the Warden to the Tax Court further explained, "As you no doubt know, our inmates cannot go to the Post Office to mail letters. I sincerely hope that Bloch has not lost his case simply because of our method of handling such matters."

In Case No. 15,731, notice of a deficiency for the years 1947 and 1948 was mailed by the Commissioner to Bloch on January 8, 1957. Bloch prepared a petition for redetermination and delivered it to his case worker with mailing fees on March 25, 1957, the 75th day. This petition was notarized by the case worker on April 2, 1957, the 84th day. There was a typed-in date on the jurat of March 25th, but a line was drawn through that date and April 2nd substituted. The postmark on the registered letter containing this petition was dated April 9, 1957, the 91st day; a letter enclosed with this petition in the record and signed by the Chief, Classification and Parole, at the prison stated that "* * * five (5) copies of a paper titled `Petition' were forwarded to you sic Court on March 25, 1957¹ and five (5) copies of a petition were forwarded to you April 8, 1957 the 90th day. We do not know whether either of these refer to docket number 66692 Case No. 15,731 but, sincerely hope that the petition will not be denied simply because of the delay in getting them out of this institution."

In 1954 Congress added section 7502, which provides: "If any * * * document * * * required to be filed within a prescribed period * * * under authority of any provision of the internal revenue laws is, after such period * * delivered by United States mail to the agency, officer, or office with which such * * * document is required to be filed, the date of the United States postmark stamped on the cover in which such * * * document is mailed shall be deemed to be the date of delivery. This subsection shall apply only if the postmark date falls within the prescribed period * * * for the filing of the * * * document, determined with regard to any extension granted for such filing, and only if the * * * document was, within the prescribed time, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the agency, office, or officer with which the * * * document is required to be filed." 26 U.S.C.A. § 7502(a). Section 7502(c) further provides that "If any such * * * document is sent by United States registered mail, * * * the date of registration shall be deemed the postmark date." 26 U.S.C.A. § 7502 (c).

The taxpayer, confined as he was in a penal institution, had his every action circumscribed and controlled by strict prison rules. After preparing his petition for review, he was forced to place it in the hands of a prison case worker for transmission to the Tax Court. The taxpayer could not go to the mailing room and mail his petition. Prison rules required that he deliver it to his case worker. Bloch did so, but the case worker failed to timely carry out the request. It is interesting to note that each of the petitions, although filed at different times, were each processed through the prison mailing room on the 91st day after the date of the notice from the Internal Revenue Service.

It would appear that the case worker must have been ignorant of the 90 day requirement. Otherwise the task of getting the petitions into the mailing room would not have been difficult. The great weight of authority is to the effect that the 90-day requirement is...