Vibro Mfg. Co. v. CIR
| Citation | 312 F.2d 253 |
| Decision Date | 09 January 1963 |
| Docket Number | Docket 27747.,No. 130,130 |
| Parties | VIBRO MFG. CO., Inc., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Charles E. Wetzler, President, Vibro Mfg. Co., Inc., Woodside, N. Y., for petitioner.
Louis F. Oberdorfer, Asst. Atty. Gen., and Lee A. Jackson, Robert N. Anderson, and Alan D. Pekelner, Attys., Dept. of Justice, Washington, D. C., for respondent.
Before CLARK, KAUFMAN and HAYS, Circuit Judges.
The Commissioner mailed to the petitioner a notice of deficiency in federal income tax for the calendar year 1958 by certified mail on May 29, 1961. The notice stated that the taxpayer might file a petition for a redetermination of the deficiency within ninety days. On September 8, 1961, 102 days after the mailing of the notice, the taxpayer mailed his petition for redetermination, which was filed with the Tax Court three days later. Since the failure to file a petition within ninety days from the mailing of the notice of deficiency, 26 U.S.C. § 6213 (a), is a jurisdictional defect, Pfeffer v. Commissioner, 272 F.2d 383 (2d Cir. 1959), the Tax Court dismissed the petition after notice was given to the petitioner by the Commissioner and an opportunity given to file an affidavit in opposition.
The decision of the Tax Court was entered on November 27, 1961. The petition for review of that decision was filed in the Tax Court on July 11, 1962, more than seven months thereafter. In so doing, the petitioner failed to comply with 26 U.S.C. § 7483, which requires this filing to be completed within three months after the decision of the Tax Court is rendered. The taxpayer attempts to excuse its noncompliance by a claim of delinquent mails. Nonetheless, the statutory restriction is absolute, and untimely filing of the petition for review deprives this Court of jurisdiction to entertain the petition. See Lasky v. Commissioner, 235 F.2d 97 (9th Cir. 1956), aff'd per curiam, 352 U.S. 1027, 77 S.Ct. 594, 1 L.Ed.2d 598 (1957); Commissioner v. Realty Operators, Inc., 118 F.2d 286 (5th Cir. 1941).
Even were we to hold that delayed receipt of notice of the Tax Court's decision excused the taxpayer's untimely filing of its petition for review, we would be constrained to affirm the decision of the Tax Court. Section 6213(a) clearly provides that the petition for redetermination of tax deficiency must be filed within 90 days of the date of...
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... ... jurisdictional , the Tax Court correctly held ... that it could not hear the petition") ... Vibro ... Mfg. Co. v. Commissioner , 312 F.2d 253, 254 (2d Cir ... 1963) (per curiam) ("Section 6213(a) clearly provides ... that the ... ...
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Collective v. Comm'r of Internal Revenue
...timely filing is made jurisdictional, the Tax Court correctly held that it could not hear the petition"). Vibro Mfg. Co. v. Commissioner, 312 F.2d 253, 254 (2d Cir. 1963) (per curiam) ("Section 6213(a) clearly provides that the petition for redetermination of tax deficiency must be filed wi......
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Quinn v. Hook
...L.Ed. 281 (1934); Old Nick Williams Co. v. United States, 215 U.S. 541, 30 S.Ct. 221, 54 L.Ed. 318 (1910); Vibro Manufacturing Co. v. Commissioner, 312 F.2d 253, 254 (2d Cir. 1963); White's Will v. Commissioner, 142 F.2d 746, 748-750 (3d Cir. 1944); but cf., La Floridienne J. Buttgenbach & ......
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Carroll v. U.S., Docket No. 02-6083.
...power to vacate its own decisions except under limited circumstances such as fraud on the court); see also Vibro Mfg. Co. v. Comm'r, 312 F.2d 253, 254 (2d Cir. 1963) (per curiam) (observing that the failure to file a petition for redetermination within 90 days of the mailing of the notice o......