Chambers v. Lucas

• Decision Date: 05 May 1930
• Parties: CHAMBERS v. LUCAS, Commissioner of Internal Revenue.
• Court: U.S. Court of Appeals — District of Columbia Circuit

41 F.2d 299 (1930)

CHAMBERS v. LUCAS, Commissioner of Internal Revenue.

Court of Appeals of District of Columbia.

Submitted April 10, 1930.

Decided May 5, 1930.

C. H. Bradley and John Philip Hill, both of Washington, D. C., for appellant.

Mabel W. Willebrandt, Asst. Atty. Gen., and C. M. Charest, V. J. Heffernan, Sewall Key, and John G. Remey, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice and ROBB and VAN ORSDEL, Associate Justices.

VAN ORSDEL, Associate Justice.

This appeal is from an order of the United States Board of Tax Appeals dismissing appellant's petition asking a redetermination of deficiencies in taxes for the years 1922, 1923, and 1924.

It appears that on November 10, 1927, the Commissioner mailed appellant the statutory notice of his determination of deficiencies; and on January 10, 1928, appellant filed his petition with the Board asking for a redetermination of the deficiencies. The Commissioner filed a motion to dismiss for lack of jurisdiction, on the ground that the petition was not filed with the Board until the 61st day after the mailing of the deficiency notice, the 60th day not being Sunday.

Section 274(a) of the Revenue Act of 1926, 44 Stat. 55 (26 USCA § 1048), provides as follows: "If in the case of any taxpayer, the commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within 60 days after such notice is mailed (not counting Sunday as the sixtieth day), the taxpayer may file a petition with the Board of Tax Appeals for a redetermination of the deficiency."

Rule 61 of the Rules of Practice before the Board of Tax Appeals provides: "When the time prescribed by these rules for doing any act expires on a Sunday or a legal holiday in the District of Columbia, such time shall extend to and include the next succeeding day that is not a Sunday or such a legal holiday; Provided, That when the time for performing any act is prescribed by statute nothing in these rules shall be deemed to be a limitation or extension of the statutory time fixed." Under Rule 1 of the Rules of Practice of the Board of Tax Appeals, it is provided that "the office of the Board at Washington, D. C. will be open each business day from 9:00 o'clock a. m. to 4:30 o'clock p. m."

It is contended that, inasmuch as the notice of November 10, 1927, was not filed until 4:45 o'clock p. m., it should not be counted as having been mailed until November the 11th; and that, inasmuch as it could not be mailed on the 11th until after the opening of the business day, 9:00 o'clock a. m., that day should not be counted, and since appellant's petition was filed during the business day of Tuesday, January 10, 1928, the fraction remaining of that day should not be counted as a day. Therefore, by excluding November 10 and 11, 1927, and Tuesday, January 10, 1928, the petition was filed within 60 days.

In support of this method...