Sorrentino v. I.R.S.

• Decision Date: 14 September 2004
• Docket Number: No. 02-1114.,No. 02-1137.,02-1114.,02-1137.
• Citation: 383 F.3d 1187
• Parties: Rolly J. SORRENTINO; Joann M. Sorrentino, Husband & Wife, Plaintiffs-Appellees, v. INTERNAL REVENUE SERVICE; United States of America, Defendants-Appellants. Steven G. Sklaver, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

383 F.3d 1187

Rolly J. SORRENTINO; Joann M. Sorrentino, Husband & Wife, Plaintiffs-Appellees, v. INTERNAL REVENUE SERVICE; United States of America, Defendants-Appellants.

Steven G. Sklaver, Amicus Curiae.

No. 02-1114.

No. 02-1137.

United States Court of Appeals, Tenth Circuit.

September 14, 2004.

Rolly J. Sorrentino and Joann M. Sorrentino, Pro Se.

Robert W. Metzler, Attorney, Tax Division (Eileen J. O'Connor, Assistant Attorney General and Kenneth L. Greene, Attorney, Tax Division, Department of Justice, Washington D.C., and John W. Suthers, United States Attorney, Denver, CO, with him on the brief), Department of Justice, Washington D.C., for Defendants-Appellants.

Steven G. Sklaver of Cooley Godward LLP, Broomfield, CO, as Court-Appointed Amicus Curiae.

Before SEYMOUR, BALDOCK, and HARTZ, Circuit Judges.

BALDOCK, Circuit Judge, delivering the Judgment of the Court and an Opinion.

Internal Revenue Code (I.R.C.) § 7422(a) authorizes a taxpayer to commence a tax refund suit against the Government once "a claim for refund or credit has been duly filed" with the Internal Revenue Service (IRS). Section 6511 of the I.R.C. limits the Government's waiver of immunity under § 7422(a) by requiring a taxpayer to file a claim for refund or credit with the IRS within a specified period of time. Thus, the taxpayer's timely filing of such claim with the IRS is a jurisdictional prerequisite to maintaining a tax refund suit against the Government. See United States v. Dalm, 494 U.S. 596, 602, 110 S.Ct. 1361, 108 L.Ed.2d 548 (1990). In this case, we conclude the district court lacked jurisdiction over Plaintiffs-Taxpayers' refund suit based upon their failure to timely file a refund claim with the IRS.

I.

Defendant IRS granted Plaintiff-Taxpayers Rolly and Joann Sorrentino a four month extension of time, or until August 15, 1995, to file their 1994, 1040 income tax return. Taxpayers, apparently awaiting an "INPOL Report" from the IRS, maintain they mailed their 1994 return to the IRS via regular United States postal mail in early March 1998, two and one-half years after its due date.¹ On their return, Taxpayers claimed a refund of $8,551 based on excess wage withholding during the 1994 taxable year. The IRS disallowed Taxpayers' refund claim as untimely. The IRS maintained it had no record of receiving Taxpayers' 1994 return until October 1998.

Taxpayers, appearing pro se, filed this lawsuit after the IRS disallowed their refund claim. The IRS moved for summary judgment based on Taxpayers' inability to establish the IRS received their refund claim on or before August 15, 1998.² Over the IRS's objection, the district court applied the common law mailbox rule, which provides proof of mailing of a properly addressed communication bearing proper postage creates a rebuttable presumption the communication was received. Accordingly, the district court denied the IRS's motion:

Applying the common law mailbox rule to this case, the Sorrentinos are entitled to a rebuttable presumption that they timely filed their refund claim for the 1994 tax year upon proof they properly mailed their 1994 tax return in time for it to be delivered to the IRS before the [August] 15, 1998 deadline. Mr. Sorrentino has testified he properly mailed the 1994 return in early March, 1998, which provided more than ample time for the return to reach the IRS in the ordinary course of the mail before the [August] 15 deadline. Mr. Sorrentino's account of an early March mailing is supported by the March 1 signature date on the photocopied return the IRS acknowledges receiving and by Mr. Sorrentino's testimony that he followed up on the status of the return before the October 2, 1998 filing date asserted by the IRS.

Sorrentino v. United States, 171 F.Supp.2d 1150, 1154 (D.Colo.2001) (Sorrentino I).³

At the district court's encouragement, Taxpayers also moved for summary judgment. See id. In response, the IRS did not dispute the substance of Taxpayers' refund claim. Rather, the IRS argued, among other things, that Mr. Sorrentino's sworn statements of proper mailing in a deposition and affidavit were uncorroborated, self-serving, and insufficient to establish actual mailing in March 1998. The district court disagreed, holding "the United States failed to produce evidence rebutting the presumption [arising from the common law mailbox rule] that the Sorrentinos' return was delivered to it and thus filed on or about March 8, 1998." Sorrentino v. United States, 199 F.Supp.2d 1068, 1078 (D.Colo.2002) (Sorrentino II). The court entered judgment in favor of Taxpayers, awarding them a refund of $8,551 plus interest.

The IRS appeals, arguing (1) I.R.C. § 7502 supplants the common law mailbox rule, and (2) Taxpayers' self-serving statements are insufficient to establish actual mailing in March 1998. Our jurisdiction arises under 28 U.S.C. § 1291. We apply the same summary judgment standard to our record examination as the district court and review its judgment de novo. See Kinross v. Utah Ry. Co., 362 F.3d 658, 660 (10th Cir.2004). Applying this standard, we reverse and remand with instructions to dismiss Taxpayers' suit for want of subject matter jurisdiction.

II.

The Supreme Court first acknowledged the common law mailbox rule in Rosenthal v. Walker, 111 U.S. 185, 4 S.Ct. 382, 28 L.Ed. 395 (1884). In Rosenthal, a case involving fraud in bankruptcy, the Court explained:

The rule is well settled that if a letter properly directed is proved to have been either put into the post office or delivered to the postman, it is presumed, from the known course of business in the post office department, that it reached its destination at the regular time, and was received by the person to whom it was addressed.

Id. at 193, 4 S.Ct. 382 (emphasis added). We subsequently applied the mailbox rule in Crude Oil Corp. v. Commissioner, 161 F.2d 809 (10th Cir.1947). Crude Oil was a tax deficiency suit arising out of a taxpayer's alleged failure to make a timely capital stock election. Although we did not describe the taxpayer's evidence, we concluded the evidence presented was sufficient to establish the taxpayer enclosed his return in a properly addressed and stamped envelope that was deposited "in time to have been received by the Collector, in the ordinary course of mail, within the statutory filing period." Id. at 810. We stated: "[p]roof of due mailing is prima facie evidence of receipt." Id. (emphasis added). "When mail matter is properly addressed and deposited in the United States mails, with postage duly prepaid thereon, there is a rebuttable presumption of fact that it was received by the addressee in the ordinary course of mail." Id.

In United States v. Peters, 220 F.2d 544 (10th Cir.1955), however, we rejected application of the mailbox rule in a tax refund suit without citing Crude Oil. Instead, we applied the "physical delivery rule" which deems a tax document filed when it is delivered to and received by the IRS:

The depositing of the claims for refund in the post office in time for them to reach the post office box or drawer of the Collector in due course of mail before the expiration of the time fixed by law for the filing of such claims did not constitute the filing of them. They were not filed within the intent and meaning ... of the Internal Revenue Code until they reached the Collector[.]

Id. at 545 (citing United States v. Lombardo, 241 U.S. 73, 36 S.Ct. 508, 60 L.Ed. 897 (1916)).⁴

After Peters, taxpayers in the Tenth Circuit faced substantial uncertainty concerning the timely filing of tax documents. Amidst this confusion, Congress enacted I.R.C. § 7502 in 1954. As originally enacted, § 7502 only applied to the filing of tax documents other than tax returns and payments. See Internal Revenue Code of 1954, ch. 736, 68A Stat. 895. In 1966, Congress amended § 7502 to encompass tax returns and payments as well. See Act of Nov. 2, 1966, Pub.L. No. 89-713, § 5(a), 80 Stat. 1110. The current version of § 7502, which applies in this instance, provides in relevant part:

§ 7502. Timely mailing treated as timely filing and paying

(a) General Rule. —

(1) Date of delivery. — If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of delivery or the date of payment, as the case may be.

* * *

(c) Registered and certified mailing; electronic filing. —

(1) Registered Mail. — For purposes of this section, if any return, claim, statement, or other document, or payment, is sent by United States registered mail —

(A) such registration shall be prima facie evidence that the return, claim, statement, or other document was delivered to the agency, officer, or office to which addressed; and

(B) the date of registration shall be deemed the postmark date.

(2) Certified mail; electronic filing. — The Secretary is authorized to provide by regulations the extent to

which the provisions of paragraph (1) with respect to prima facie evidence of delivery and the postmark date shall apply to certified mail and electronic filing.[⁵]

Some courts have construed the current version of § 7502 as supplanting the common law mailbox rule entirely. Specifically, the Second and Sixth Circuits have held, absent a physical postmark, the physical delivery rule applies to tax refund and deficiency suits subject only to the exceptions contained in subsection (c) regarding registered, certified, and electronic mail...