Central Paper Co. v. Commissioner of Internal Rev.

• Decision Date: 13 November 1952
• Docket Number: No. 11508.,11508.
• Citation: 199 F.2d 902
• Parties: CENTRAL PAPER CO. v. COMMISSIONER OF INTERNAL REVENUE.
• Court: U.S. Court of Appeals — Sixth Circuit

199 F.2d 902 (1952)

CENTRAL PAPER CO. v. COMMISSIONER OF INTERNAL REVENUE.

No. 11508.

United States Court of Appeals Sixth Circuit.

Decided November 13, 1952.

Melva M. Graney, Washington, D. C. (Ellis N. Slack, A. F. Prescott, Virginia H. Adams, Washington, D. C., on the brief), for respondent.

Wilbur A. Giffen, Chicago, Ill., of counsel, KixMiller, Baar & Morris, Chicago, Ill., on the brief, for petitioner.

Before SIMONS, Chief Judge, and McALLISTER and MILLER, Circuit Judges.

MILLER, Circuit Judge.

The Tax Court dismissed Petitioner's application for a redetermination of its excess profits tax liability on the ground that it lacked jurisdiction in the matter, from which ruling the Petitioner has appealed.

The Petitioner, Central Paper Company, Inc., a Michigan Corporation, filed claims for refund, relating to the application of § 722 of the Internal Revenue Code, 26 U.S. C.A. § 722, with respect to excess profits taxes for the fiscal years ending June 30, 1943, 1944 and 1945. The Commissioner, by letter of September 6, 1950, rejected the applications. The letter also advised the taxpayer — "Within ninety days * * * from the date of the mailing of this letter, you may file a petition with The Tax Court of the United States, at its principal address, Washington 4, D. C., for a redetermination of your excess profits tax liability under the Internal Revenue Code." This was in accordance with the provisions of § 732(a) Internal Revenue Code, 26 U.S.C.A. § 732(a).

The taxpayer prepared such a petition which was mailed at Chicago, Illinois, properly stamped and legibly addressed to "The Tax Court of the United States, Washington 4, D. C." The wrapper on the package which contained the petition shows a Chicago postmark of 3:30 p.m. on December 1, 1950. The docket of the Tax Court carries the following entry: "1950, December 7. Petition received and filed." The petition itself was rubber stamped "Filed December 7, 1950." December 7, 1950, was 92 days after the date of the mailing by the Commissioner of the registered notice of disallowance of the claims on September 6, 1950. The Commissioner moved that the proceeding be dismissed for lack of jurisdiction, due to the failure of the petitioner to file its petition with the Tax Court within the 90 days provided by the statute. The Tax Court sustained the motion, without opinion.

In connection with the Tax Court's consideration of the motion to dismiss, it was stipulated between the parties that the Court should consider as being in evidence the cover of the package which contained the petition; that there was attached to the notice of disallowance in the above matter a slip of instructions which stated that "appeals should be addressed to The Tax Court of the United States, Washington 4, D. C."; that the Court should consider as evidence the statement of the postmaster at Chicago, Illinois, that a record is made of pouches of mail that miss connection with intended trains and also unusual conditions that would interrupt normal operation of trains enroute to destination would be recorded, that there was no record of any such irregularity in the handling of mail at the Chicago postoffice on December 1, 1950, or any interruptions in transportation service that would account for a first-class piece of mail addressed to The Tax Court of the United States, Washington 4, D. C., not reaching the addressee according to schedule, and that a first-class piece of mail addressed to The Tax Court of the United States, Washington 4, D. C., showing postmark in Chicago on December 1, 1950, 3:30 p.m. would in the normal course have arrived at Washington, D. C., at 4:30 p.m. on December 2, 1950; that the Court should consider as evidence the statement of the postmaster at Washington, D. C., that The Tax Court of the United States rents lock box No. 70 at the Benjamin Franklin Station, which is about five inches square, that because of the volume of mail received by The Tax Court their mail is not placed in this box but is piled on a ledge in no special receptacle until called for by a messenger from The Tax Court, that The Tax Court is not the only box holder at said station for whom mail is retained in no special receptacle until called for, that on December 2, 1950, there were no unusual conditions or circumstances existing in Washington, D. C. Post Office which would cause delay in the normal handling of mail arriving at Washington on that date, and that a piece of first-class mail addressed to The Tax Court of the United States, Washington, D. C., and arriving in the Washington Post Office at approximately 4:30 p.m. on December 2, 1950 would in normal course have been received by the Box Section of the Benjamin Franklin Station on the same day.

In support of The Tax Court's ruling, the Commissioner contends that the time limitation for filing the petition is statutory and jurisdictional, and that failure on the part of the taxpayer to file such a petition with the Tax Court within the 90-day period provided is a bar to its consideration. Such is the well established rule, which is not challenged by the taxpayer. Di Prospero v. Commissioner, 9 Cir., 176 F.2d 76; Stebbins' Estate v. Helvering, 74 App.D.C. 21, 121 F.2d 892; Poynor v. Commissioner, 5 Cir., 81 F.2d 521.

We also agree with the Commissioner's contention that a failure to file the petition within the specified 90-day period, caused by matters over which the taxpayer has no control, such as delay in the mail service enroute from the taxpayer to the Tax Court, Di Prospero v. Commissioner, supra, failure of airplane mail service to function because of adverse weather conditions, Stebbins' Estate v. Helvering, supra, or because of other equitable considerations, Edward Barron Estate Co. v....