Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-15-2008

Phila Marine v. Comm IRS
Precedential or Non-Precedential: Precedential

Docket No. 06-3798




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                                       PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT


                    No. 06-3798


  PHILADELPHIA MARINE TRADE ASSOCIATION-
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
      PENSION FUND; O’NEILL CONSULTING
                CORPORATION,

                               Appellants

                          v.

COMMISSIONER OF INTERNAL REVENUE SERVICE;
        UNITED STATES OF AMERICA




     Appeal from the United States District Court
       for the Eastern District of Pennsylvania
        (D.C. Civil Action No. 04-cv-04857)
     District Judge: Honorable Gene E.K. Pratter


             Argued September 26, 2007

 Before: AMBRO, JORDAN and ROTH, Circuit Judges
               (Opinion filed: April 15, 2008)

Vincent J. Pentima, Esquire (Argued)
Jessamyne M. Simon, Esquire
Alfred J. D’Angelo, Jr., Esquire
Joseph P. Sirbak, II, Esquire
Buchanan, Ingersoll & Rooney
1835 Market Street, 14th Floor
Philadelphia, PA 19103

      Counsel for Appellant

Eileen J. O’Connor
  Assistant Attorney General
Robert W. Metzler, Esquire
Kenneth W. Rosenberg, Esquire
Teresa T. Milton, Esquire
Kenneth L. Greene, Esquire (Argued)
United States Department of Justice
Tax Division
P.O. Box 502
Washington, DC 20044

      Counsel for Appellee




                OPINION OF THE COURT



                              2
AMBRO, Circuit Judge

        In this tax case the Internal Revenue Service imposed a
tax penalty and collected it by a levy on assets. The trust fund
(against whose assets the IRS levied to collect the penalty) and
the fund’s administrator (who reimbursed the fund on the
penalty it paid) seek the return of the monies paid. The IRS
resists on two grounds that are pertinent to this appeal. It argues
that the fund’s administrator lacks standing to sue the United
States for a refund under 28 U.S.C. § 1346(a)(1), where the
penalty was actually assessed against the fund itself but the
administrator reimbursed the fund. We conclude that the IRS is
correct on this issue, and the administrator lacks standing.

       But that does not end the matter. The taxpayer (the fund)
may still sue. The IRS claims, however, the tax refund request
was untimely. The fund counters that it produced evidence that
it mailed the request early enough to allow timely physical
delivery. This method, known as the common-law mailbox rule,
works if the rule still exists. The Government argues it does not
because 26 U.S.C. § 7502 preempts the common-law mailbox
rule in tax cases. We disagree; the mailbox rule simply
supplements § 7502. In addition, even before any consideration
of the mailbox rule, there is sufficient direct evidence of timely
receipt to preclude summary judgment against the fund. Thus,
we vacate the District Court’s order to the extent it concluded
the contrary.



                                3
I.     Facts and Procedural History

       The Philadelphia Marine Trade Association/International
Longshoremen’s Association Vacation Fund (the “Fund”) is a
multi-employer trust fund that accumulates contributions from
collective bargaining agreements between the Philadelphia
Marine Trade Association and local unions of the International
Longshoremen’s Association. The Fund is required to withhold
income and payroll taxes from the money it distributes and to
remit these taxes to the IRS. Accordingly, it hired O’Neill
Consulting Corporation (“O’Neill”), a family-owned consulting
business, as the Fund’s administrator to handle the task of
calculating and remitting the taxes.

       Prior to June 25, 2001, the IRS determined that the Fund
had remitted its taxes for the fourth quarter of 1999 and the
second quarter of 2000 by a paper coupon, rather than
electronically, in violation of applicable regulations. It also
apparently determined that the Fund had remitted its taxes for
the fourth quarter of 2000 late, though it did so electronically.
The IRS thus assessed penalties against the Fund and notified
O’Neill of the problems. The O’Neill employee who received
the communications from the IRS, however, failed to take
corrective action. Accordingly, on June 25, 2001, the IRS levied
on $160,386.48 held by the Fund in a money market account.
The O’Neill employee who had failed to respond to the IRS then
resigned in February 2003 without having disclosed the
existence of the levy to O’Neill or the Fund. It was not until the

                                4
spring of 2003 that the Fund and O’Neill discovered the levy as
a result of an audit on the Fund’s books performed by Anthony
Pontarelli, CPA.

        Alarmed, Pontarelli and Susan O’Neill1 (O’Neill’s
president) called Revenue Officer James Dugan of the IRS to
ask for an explanation of the levy. Dugan testified that because
the tax penalty was paid, and the case therefore closed from the
IRS’s standpoint, he did not keep records of this
communication. He also testified, however, that during this
conversation Pontarelli and Ms. O’Neill were “frantic,” “in an
uproar,” and “so nervous and concerned.” Subsequently, the
Fund and O’Neill assert, Pontarelli drafted a letter to Dugan on
or before May 8, 2003 requesting a refund (the “May 8 Letter”).
Pontarelli testified that he faxed the May 8 Letter to Ms.
O’Neill, and she testified that she received it, immediately
signed it, and sent it via United States Postal Service overnight
mail to Dugan. Ms. O’Neill cannot provide proof of mailing the
May 8 Letter, and there is no separate billing record to support
this assertion because the postage was paid through a meter at
O’Neill’s office. Dugan claimed he could not recall whether he
received the letter.

      Ms. O’Neill contends that, having not yet heard a
response from Dugan to the May 8 Letter, she called him in late


    1
     We will refer to her as “Ms. O’Neill” to distinguish her
from the consulting company.

                               5
May. She asserts that Dugan informed her that he had not yet
had a chance to review the matter but would let her know when
he had done so. Ms. O’Neill alleges that she then sent another
letter to Dugan on June 13, 2003 (the “June 13 Letter”), with
postage again prepaid through a meter in O’Neill’s office, this
time by first class mail. Although Dugan again does not recall
receiving the letter, a computer printout shows that the June 13
Letter was in fact composed by Ms. O’Neill on that date.

       Pontarelli testified that Dugan subsequently left him two
voicemail messages in late June 2003. The first assured him
that Dugan would process a refund for the Fund. The second
backed off from this assurance, noting that the matter was more
complicated than Dugan had anticipated.

       In August 2003, following various communications over
the summer, Pontarelli, Thomas McGoldrick (O’Neill’s
attorney), Dugan, and Allison Sigler (a “trouble shooter” for the
IRS) met to discuss the matter. Dugan and Sigler declined to
refund the money at this meeting, but told Pontarelli and
McGoldrick how they could formally request a refund.
Accordingly, in September 2003 McGoldrick, on behalf of the
Fund, filed a formal refund request via IRS Form 843 and a
nine-page letter. The IRS then granted a partial refund of
$93,365.61, corresponding to the second and fourth quarters of




                               6
2000,2 but withheld the portion corresponding to the fourth
quarter of 1999. According to the IRS, because the penalty for
this quarter was paid on June 25, 2001, under 26 U.S.C.
§ 6511(a) the Fund had to request a refund by June 25, 2003.
The September 2003 refund request, the IRS asserted, was
therefore untimely.

       Recognizing that its employee was partly to blame for the
Fund’s predicament (having failed timely to respond to the
IRS’s pre-levy communications), O’Neill reimbursed the Fund
for the tax penalty. It did so via a formal agreement in which
the Fund, in exchange for reimbursement, promised to cooperate
with O’Neill in processing its appeal to the IRS for a refund and
to transfer to O’Neill any money recovered from the IRS.

       The Fund and O’Neill filed suit in the United States
District Court for the Eastern District of Pennsylvania to recover
payment of the remaining penalty. They, as well as the
Government, later moved for summary judgment. In support of
its motion, the Government argued that the District Court lacked
jurisdiction over O’Neill’s claim, as O’Neill lacked standing
under 28 U.S.C. § 1346(a)(1). The Government also argued that
the Court lacked jurisdiction over both plaintiffs’ claims due to
untimely filing of the refund request, because the plaintiffs did


    2
      The Government has brought suit to recover this partial
refund. The suit is pending in the United States District Court
for the Eastern District of Pennsylvania.

                                7
not produce direct evidence of timely receipt by the IRS and
could not avail themselves of the common-law mailbox rule,
which the Government contended was preempted by 26 U.S.C.
§ 7502. The District Court agreed and granted summary
judgment in the Government’s favor (thus denying the summary
judgment motion of the Fund and O’Neill). The Fund and
O’Neill timely appealed, and we exercise appellate review
pursuant to 28 U.S.C. § 1291.

II.    Standard of Review

       Because the District Court granted summary judgment,
our review is plenary. See, e.g., Bailey v. United Airlines, 

, 198 (3d Cir. 2002). Summary judgment is proper
where “there is no genuine issue as to any material fact and . . .
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). We must draw all reasonable inferences from the
underlying facts in the light most favorable to the nonmoving
party. 

.

III.   O’Neill’s Standing

       The District Court properly concluded that O’Neill lacks
standing to sue the Government for a refund. First, 28 U.S.C.
§ 1346(a)(1) has conferred no right on O’Neill to sue for a
refund; it has conferred that right only on the taxpayer—the
Fund. Second, O’Neill does not qualify for third-party standing
to assert the Fund’s right.

                                8
       A.      O’Neill’s Lack of Statutory Standing Under 28
               U.S.C. § 1346(a)(1)

        Statutory standing asks “whether Congress has accorded
this injured plaintiff the right to sue the defendant to redress his
injury.” Graden v. Conexant Sys., Inc., 

, 295 (3d
Cir. 2007) (emphasis in original). The statute at issue here is 28
U.S.C. § 1346(a)(1), by which the United States has waived
sovereign immunity. It confers original jurisdiction on the
district courts for civil actions against the United States for the
recovery of allegedly erroneous or illegal tax assessments or
collections. See United States v. Dalm, 

, 601–02
(1990).3

       The Supreme Court in United States v. Williams has
cautioned that we must not enlarge this waiver beyond the
purview of the statutory language, and that we must construe
ambiguities in favor of immunity. 

, 531 (1995).
The Court held that § 1346(a)(1) authorizes a refund suit not
only by a party directly assessed a tax, but also “a party who,


   3
    Specifically, the statute confers original jurisdiction on the
federal district courts for “[a]ny civil action against the United
States for the recovery of any internal-revenue tax alleged to
have been erroneously or illegally assessed or collected, or any
penalty claimed to have been collected without authority or any
sum alleged to have been excessive or in any manner wrongfully
collected under the internal-revenue laws.” § 1346(a)(1).

                                 9
though not assessed a tax, paid the tax under protest to remove
a federal tax lien from her property.” 

had
filed a lien against the plaintiff’s house because the plaintiff’s
ex-husband was delinquent on his taxes. 

The
plaintiff, protesting the lien because she herself was not
delinquent on her taxes, nonetheless paid the Government to
clear title to the house because she had contracted to sell it. 

The Court held that the plaintiff had standing to sue the
Government for a refund under § 1346(a)(1), reasoning that the
lien was against the plaintiff’s own property, 

that the
plaintiff paid the Government under protest (i.e., she had
insisted that her property was not a proper source from which to
extract money to satisfy her ex-husband’s tax liability), 

and that no other available remedy existed, 

       But the Court essentially limited its holding in Williams
to the case’s facts. It clarified, for instance, that it did not
“decide the circumstances, if any, under which a party who
volunteers to pay a tax assessed against someone else may seek
a refund under § 1346(a).” 

Recognizing the
narrowness of this holding, the Tenth Circuit Court of Appeals
held in Dahn v. United States that a plaintiff lacked standing to
challenge the Government’s seizure of his property to satisfy his
parents’ debts. 

, 1251, 1254 (10th Cir. 1997). The
Court reasoned that, whereas the plaintiff in Williams
“deliberately and affirmatively proffer[ed] payment” to the
Government, the plaintiff in Dahn was “simply a passive,
collateral subject of IRS collection activities.” 

                                10
        We conclude that § 1346(a)(1), as interpreted by the
Supreme Court in Williams, does not give O’Neill a right to sue.
It was not assessed the tax penalty. Moreover, O’Neill’s
involvement in the tax-penalty payment differs from that of the
plaintiff in Williams. Unlike that person’s property, O’Neill’s
own property was not encumbered by the Government. More
importantly, O’Neill did not pay the tax penalty to the IRS.
Rather, the Fund paid the IRS, and O’Neill merely decided to
reimburse the Fund. Although O’Neill claims its reimbursement
of the Fund was “involuntary” because O’Neill was partly at
fault for the levy, and consequently the Fund would have sued
O’Neill had it not made the Fund whole, Williams focused on
whether the plaintiff’s payment to the Government was
voluntary. Given that we are required to construe ambiguities
in favor of sovereign immunity, 

, we
deem these distinctions fatal to O’Neill’s statutory standing.

       B.     O’Neill Cannot Assert the Fund’s Rights

       Even where a party satisfies the constitutional standing
requirements of injury, causation and redressability, see Lujan
v. Defenders of Wildlife, 

, 560–61 (1992), other
(called prudential) considerations generally bar that party from
asserting the legal rights of others, see Kowalski v. Tesmer, 

, 128–29 (2004). The Supreme Court has created an
exception, however, allowing third-party standing where “the
party asserting the right has a ‘close’ relationship with the
person who possesses the right” and “there is a ‘hindrance’ to

                               11
the possessor’s ability to protect his own interests.” 

        Invoking this exception, O’Neill argues that even if the
Fund technically possesses the right to sue for a refund under
§ 1346(a)(1), O’Neill may nevertheless assert that right as well.
It reasons there is a “hindrance” to the Fund’s ability to assert its
own rights because, having already been made whole by
O’Neill, the Fund lacks incentive to pursue a refund. Fund’s &
O’Neill’s Reply Br. at 3–5.

        We find this argument unpersuasive. Even if O’Neill
enjoys a “close” relationship with the Fund, there is not a
hindrance to the Fund’s ability to sue for a refund. In different
circumstances, a rightholder’s lack of incentive to sue could
suggest there is a hindrance. For instance, in Powers v. Ohio,
the Supreme Court cited jurors’ lack of financial incentive to sue
as one of several reasons for allowing litigants to challenge
improper exclusion of jurors during voir dire. 

,
415 (1991). Similarly, in Pennsylvania Psychiatric Society v.
Green Spring Health Services, Inc., our Court held that
psychiatrists had third-party standing to bring their mental health
patients’ claims against managed health care organizations for
impairing the patients’ treatment. 

, 290–91 (3d
Cir. 2002). We reasoned that the patients were unlikely to sue
in part because they feared that doing so would cause a stigma,
creating a “considerable deterrent” to litigation. 

the Fund is not only willing to sue on its

                                12
own behalf—it has sued. Moreover, we have no evidence that
the Fund would drop its suit were we to dismiss O’Neill as a
plaintiff. Also, we are not aware of any case holding that a
person or entity such as O’Neill may “purchase” third-party
standing by paying the rightholder the amount of the
rightholder’s loss (thus stripping the rightholder of its incentive
to sue) and then suing the wrongdoer for reimbursement. Cases
instead have focused on whether the rightholder’s lack of
incentive, before intervention by the party asserting the right,
tends to deter the rightholder from bringing suit. See, e.g.,
Carey v. Population Servs. Int’l, 

, 684 n.4 (1977)
(vendor could challenge law prohibiting distribution of
contraceptives in part because the desire to avoid publicity
would deter potential purchasers from defending their own
rights). Here, by contrast, the Fund did not lack incentive to sue
for a refund at the time the IRS levied on its property; the Fund
had every reason to, and did, seek a refund. If the Fund has lost
incentive to sue, it is because O’Neill stripped the Fund of that
incentive by deciding to reimburse it.

        In short, the Fund did not need a third party to protect its
rights. Consequently, we cannot agree that O’Neill fits within
the third-party standing exception. We therefore affirm the
District Court’s order to the extent that it denied standing to
O’Neill.




                                13
IV.    Timely Filing

       A.      Timely Filing as a Prerequisite to Federal
               Jurisdiction

        It is undisputed that the District Court had jurisdiction to
hear this suit only if the Fund filed its refund claim by June 25,
2003. To repeat, by 28 U.S.C. § 1346(a)(1) Congress conferred
original jurisdiction on federal district courts for civil actions
against the United States for the recovery of allegedly erroneous
or illegal tax assessments or collections. See 

–02. It limited this conferring of jurisdiction, however, to
suits that follow a “duly filed” claim for refund or credit. 26
U.S.C. § 7422(a). A claim is “duly filed” when it is timely.

.

       26 U.S.C. § 6511 governs whether a refund request is
timely. Comm’r of Internal Revenue v. Lundy, 

,
239 (1996). Subsection 6511(a) states that a

       [c]laim for credit or refund of an overpayment of
       any tax imposed by this title in respect of which
       tax the taxpayer is required to file a return shall be
       filed by the taxpayer within 3 years from the time
       the return was filed or 2 years from the time the
       tax was paid, whichever of such periods expires
       the later, or if no return was filed by the taxpayer,
       within 2 years from the time the tax was paid.

                                14
 26 U.S.C. § 6511(a). The return for the fourth quarter of 1999
(the quarter for which the Fund seeks a refund) was filed on
January 31, 2000, and the IRS levied on the Fund’s assets on
June 25, 2001. Using the later-expiring deadline of two years
after the levy, § 6511(a) required the Fund to file its refund
request by June 25, 2003. Doing so is a prerequisite to federal
jurisdiction.4

        B.    Summary Judgment on the Issue of Timely
              Filing Was Improper

       The District Court erred in granting summary judgment
to the Government on the issue of timely filing. As an initial
matter, there is enough direct evidence of pre-June 25, 2003
receipt of the refund requests in the record to raise a genuine
issue of material fact. Moreover, the common-law mailbox rule
remains a way for taxpayers such as the Fund to prove receipt
indirectly by proof of mailing, notwithstanding the enactment of
26 U.S.C. § 7502.

              1.     Direct Evidence of Receipt

       Aside from any consideration of the mailbox rule’s
continued existence, we believe that there is enough direct


    4
      The Government does not contest the District Court’s
conclusion that the May 8 and June 13 Letters, if timely
received, suffice as refund requests.

                              15
evidence of pre-June 25, 2003 receipt by the IRS of the refund
requests (per the May 8 and June 13 Letters) to preclude
summary judgment for the Government. Drawing reasonable
inferences in the Fund’s favor (as we must), we are satisfied that
a reasonable fact-finder could find that the IRS timely received
the Fund’s refund requests.

       Pontarelli testified that he received a phone message from
Revenue Officer Dugan acknowledging receipt of the May 8
Letter. Dugan’s testimony about this is inconclusive. Though
he did not recall receiving the letter, he admitted it was possible
that he did. And given Dugan’s statement that he would have
ultimately destroyed the file containing the May 8 and June 13
Letters if he had received them, the Government’s assertion that
it has no record of the letters does not resolve the question
whether it received them. Finally, the IRS’s actions after June
2003, in particular its meeting with the Fund’s representatives
in August 2003, suggest that there was a precipitating
event—perhaps receipt of a refund request—that triggered this
governmental response.

              2.      The Mailbox Rule

       Even if we had concluded that the Fund’s direct evidence
of receipt is insufficient to preclude summary judgment, it has
an alternate method for showing receipt: the common-law




                                16
mailbox rule.5 Two of our sister Circuit Courts—the Second
and Sixth—have held that the common-law mailbox rule has
been preempted by 26 U.S.C. § 7502.               We disagree.
Specifically, we hold that, where a taxpayer does not rely on
§ 7502’s protection and produces evidence beyond its own
testimony that it mailed the tax document early enough to allow
timely receipt by the IRS in the regular course of United States
Post Office business, it may avail itself of the mailbox rule.6
Accordingly, we vacate the District Court’s order to the extent
it concluded to the contrary.

              a.     Development of the Mailbox Rule

       A statutory filing requirement generally can be satisfied
only by actual, physical delivery to the Government. United
States v. Lombardo, 

, 76, 78 (1916); Heard v.
Comm’r of Internal Revenue, 

, 913 (3d Cir. 1959).


      5
     We note that this portion of the opinion is an alternative
holding, not a dictum: “where a decision rests on two or more
grounds, none can be relegated to the category of obiter dictum.”
Woods v. Interstate Realty Co., 

, 537 (1949).
  6
    We need not, and do not, decide whether a plaintiff seeking
§ 7502’s protection may avail itself of the mailbox rule, nor
whether a plaintiff whose evidence of mailing consists entirely
of the plaintiff’s own testimony may put in play the presumption
provided by the mailbox rule, because this case does not present
either set of facts.

                               17
This has come to be known as the “physical delivery rule.” To
help determine when the pertinent document was physically
delivered, courts developed the common-law mailbox rule. If
a document is properly mailed, the court will presume the
United States Postal Service delivered the document to the
addressee in the usual time. Rosenthal v. Walker, 

,
193 (1884); see also Hagner v. United States, 

, 430
(1932). The Government then has the opportunity to rebut this
presumption with evidence of untimely receipt. See 

.

       In this context, the mailbox rule is merely a method for
determining the date of physical delivery under the “physical
delivery” rule. It does not ignore the physical delivery
requirement, but merely creates a presumption that physical
delivery occurred in the ordinary time after mailing.

              b.     26 U.S.C. § 7502

     In 1954, Congress enacted § 7502 of the Internal
Revenue Code. The current version 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

                               18
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.


                       19
              (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.


26 U.S.C. § 7502.

       Subsection 7502(a)(1) relieves a taxpayer from the
“timely physical delivery” requirement where it postmarks the
document before the filing deadline but the Government actually
receives the document after the deadline. The “postmark” date
effectively becomes the “delivery” date.

       Subsection (c)(1) provides, for purposes of § 7502, that
registering one’s mail with the Postal Service establishes a
prima facie case of delivery and that the registration date shall
be the “postmark” date (which, due to § 7502(a), is also the
“delivery” date). Subsection (c)(2), and 26 C.F.R. § 301.7502-
1(c)(2), (d) & (e) promulgated thereunder, extend this safe
harbor to certified and electronic mail.

       c.     The Continuing Effect of the Mailbox Rule

       After the enactment of § 7502, there are at least two types


                               20
of the common-law “mailbox rule” that a taxpayer might seek to
invoke, only one of which we deal with here. First, a taxpayer
relying on § 7502—because it mailed the document before the
deadline, but too late for that document to arrive on time in the
ordinary course of post office business—might seek to invoke
a presumption of eventual delivery. It would need this
presumption because § 7502(a)(1) protects the taxpayer only
where the IRS actually receives the document at some later time.
See Sorrentino v. IRS, 

, 1191 n.5 (10th Cir. 2004).
 If the taxpayer sends the document by registered, certified, or
electronic mail, § 7502(c) affords it a presumption of receipt. If,
however, it does not use one of these three methods, and then
faces an IRS allegation of nonreceipt, the taxpayer must ask the
court to recognize an additional presumption of receipt not listed
in the statute—one arising from proof of mere mailing or
postmark. Such a taxpayer would have to argue that the
circumstances giving rise to a prima facie case of delivery that
are listed in § 7502(c) are not exclusive. Several of our sister
Circuit Courts have accepted this argument, at least where the
taxpayer introduced circumstantial evidence of postmark beyond
its own testimony. See 

Anderson v. United
States, 

, 491 (9th Cir. 1992); Estate of Wood v.
Comm’r of Internal Revenue, 

, 1159–61 (8th Cir.
1990).7


    7
      In Estate of Wood, the Eighth Circuit Court held that a
taxpayer relying on § 7502(a)(1) enjoys a presumption of
delivery upon proof of postmark (at least, it seems, where the

                                21
       We do not deal with such an “intra-§ 7502” mailbox rule

evidence goes beyond the taxpayer’s own, self-serving
testimony), notwithstanding that § 7502(c) gives other
circumstances in which a taxpayer enjoys the 

–61. The Ninth Circuit followed the Eighth
Circuit’s lead in 

. So did the Tenth
Circuit, with the explicit caveat that the taxpayer must produce
circumstantial evidence beyond the taxpayer’s own testimony.

–95.
       The Ninth and Tenth Circuits’ decisions may very well
also afford a presumption of receipt to taxpayers not relying on
§ 7502’s protection. The taxpayers in Sorrentino seemingly did
not need § 7502’s protection (only the common-law mailbox
rule) because they claimed to have mailed their document with
plenty of time for it actually to have arrived before the deadline,
and the Court ultimately concluded the taxpayers’ own
testimony was insufficient “to raise a presumption the IRS
received” the document “prior to” a date well after the deadline.
See 

1195. Similarly, the taxpayers in the Ninth
Circuit’s Anderson decision did not need § 7502, 

, and the Court noted that “even if section 7502(c) is the
only exception to the statutory mailbox rule requiring proof of
mailing by postmark, it does not follow that the statutory
mailbox rule announced in section 7502 is the exclusive means
of proving timely mailing and filing,” 

       In any case, we need not dwell on the precise reach of
these cases. As we explain below, § 7502’s text, history and
purpose direct us to uphold the common-law mailbox rule for
taxpayers who do not rely on § 7502’s protection and introduce
evidence of mailing beyond their own testimony.

                                22
here. Instead, we have a second, more classic mailbox rule—a
taxpayer who allegedly mailed its refund requests with time
(here, plenty of time) for them to arrive before the deadline.
Such a taxpayer does not need the protection of § 7502, as the
statute’s function is to excuse taxpayers for late receipt. The
Fund does not ask us to specify either May 8, 2003 or June 13,
2003 (the dates it allegedly mailed its refund requests) as the
date of filing. It only asks for a presumption of delivery of the
letters in the ordinary time after mailing (here, one day after
May 8 or the regular first class delivery time after June 13, as
O’Neill allegedly sent the letters via overnight and first class
mail, respectively), which would be well before the June 25
deadline. Accordingly, the dispute here is whether § 7502 has
completely supplanted the common-law mailbox rule in tax
cases where the taxpayer does not even rely on the statute.

        For starters, the text of § 7502 does nothing to affect the
mailbox rule in cases such as the one before us. “It is a well-
established principle of statutory construction that the common
law ought not to be deemed repealed, unless the language of a
statute be clear and explicit for this purpose.” Norfolk
Redevelopment & Housing Auth. v. Chesapeake & Potomac Tel.
Co., 

, 35 (1983) (internal quotations, brackets, and
ellipses omitted). By its terms, § 7502(a) applies only to cases
where the pertinent document was delivered to the Government
after the filing deadline. Here, by contrast, neither party claims
the refund requests were delivered after the filing deadline of
June 25, 2003. To repeat, the Fund produced evidence that

                                23
O’Neill sent the May 8 and June 13 letters by overnight and first
class mail, respectively. If that is true, the letters would
presumably have arrived well before the June 25 deadline. The
Government, meanwhile, claims it has no record of having
received the letters at all. The text of § 7502(a), therefore, does
not direct a result here. Thus § 7502(c), which limits its
application to cases in which § 7502 generally applies, see
§ 7502(c)(1) (“For purposes of this section, if any return, claim,
statement, or other document, or payment, is sent by United
States registered mail . . . .”) (emphasis added), is also
inapplicable.

       Even looking beyond the text, we see no indication that
Congress intended to preempt the mailbox rule for taxpayers
who do not seek § 7502’s protection. As an initial matter, we
find nothing in the legislative history of § 7502 to support the
preemption argument.8 Moreover, as a matter of logic, it is

   8
     If anything, one portion of the legislative history suggests
that Congress did not intend § 7502’s provisions to preclude
other evidence of mailing. In the legislative history relating to
a 1968 amendment covering mailed tax deposits, Senate and
House Reports state that although the date of mailing can be
proven by the date of registration for registered mail, “[t]he
taxpayer, of course, could also establish the date of mailing by
other competent evidence.” S. Rep. No. 90-9014 (1968), 1968
U.S.C.C.A.N. 2354, 2373; H.R. Rep. No. 90-1104 (1968), 1968
U.S.C.C.A.N. 2341, 2354. Although this language is not
directly on point, as it explicitly speaks only to § 7502(e) rather

                                24
difficult to imagine that Congress, by passing a law that was
designed to protect taxpayers who meet § 7502’s requirements,
would (without so stating) simultaneously seek to roll back the
protections for taxpayers that already exist at common law.
Congress’s intent, we believe, was to supplement, not supplant,
means by which taxpayers can timely file documents with the
IRS. See Estate of 

.

        The Government draws our attention to Boccuto v.
Commissioner of Internal Revenue, 

, 553 (3d Cir.
1960), where we decided that the taxpayers in that case could
not satisfy § 7502. It argues that in that case we “recognized
that[,] after the enactment of § 7502, evidence of mailing other
than that provided in that statute is no longer sufficient to
establish timely filing.” Government’s Br. at 34.

       Unlike the current case, however, Boccuto involved a
straightforward application of § 7502 to taxpayers who had no
choice but to rely on the provision. The taxpayers there
delivered the document to the post office on the due date, the
document was postmarked one day after the due date, and the
tax authorities received the document the day after that.

. The ordinary time after mailing


than the subsections of § 7502 at issue here, it lends support to
the notion that Congress did not intend courts to prevent
evidence of mailing where the statute itself does not direct that
result.

                               25
would have been too late. Thus, the taxpayers needed to
transform the date of mailing into the date of
delivery—something only § 7502 could accomplish. We denied
the taxpayers use of § 7502 because we concluded that the date
of postmark, not the date of mailing, controlled under that
statute. 

9 Here, by contrast, the Fund neither needs
nor seeks § 7502’s protection.

       The Government makes too much of our statements in
Boccuto that “Congress has explicitly set forth the allowable
exceptions to the rule of actual receipt by the Tax Court within
the specified time,” and that “[u]nless a taxpayer can fit himself
within one of the statutory exceptions, he is bound by this rule.”

treats the mailbox rule as an exception to
the physical delivery rule which, because that exception is not
enumerated in § 7502, it argues must be preempted under this
language in Boccuto.

       We are not persuaded by this argument, as Boccuto does
not affect our case. Not only did it not concern the common-law
mailbox rule, but we also do not think the mailbox rule we deal


  9
     The taxpayer produced a certified mail receipt showing the
date of mailing, but we rejected the taxpayer’s attempt to
transform the date on the receipt into the date of filing because
the regulations implementing § 7502(c)’s extension of § 7502 to
certified mail had not been promulgated until well after the
taxpayer mailed the document. 

                               26
with here should be seen as an exception to the “rule of actual
receipt . . . within the specified time.” Unlike § 7502, the
mailbox rule invoked by the Fund in this case does not excuse
untimely delivery; it is simply a method for determining when,
under the physical delivery rule, a document is physically
delivered. See 

; In re Nimz Transp.
Inc., 

, 179 (7th Cir. 1974). The Government is free
to produce evidence that the document failed to arrive on time.
If it does so convincingly, the taxpayer’s claim to timeliness
under the common-law mailbox rule will fail. Section 7502, by
contrast, allows a taxpayer to establish timeliness even where it
is conclusively shown that the document arrived after the
deadline. Thus, Boccuto spoke to the degree to which § 7502
confers benefits on taxpayers beyond what the common law
provided. In that instance, it was simply cautious not to
overread the extent of Congress’s generosity. Here, by contrast,
we address the degree to which existing common-law
protections remain intact.10

       The Second and Sixth Circuit Courts, contrary to what we
decide today, have seemingly concluded that § 7502 preempts
the common-law mailbox rule even where the taxpayer does not
need § 7502’s protection. In Deutsch v. Commissioner of


    10
       The parties dispute whether the conclusion in Boccuto
constitutes its holding or, as the District Court interpreted it, a
dictum. Because the issue in Boccuto differs from the issue we
deal with here, we need not resolve this dispute.

                                27
Internal Revenue, the Second Circuit invoked § 7502 to prevent
a taxpayer from proving, other than by production of a postmark
or registration receipt, that he mailed the document on August
4, 1977, well before a September 27, 1977 deadline. 

, 44–46 (2d Cir. 1979).11          It reasoned that § 7502
demonstrates a “penchant for an easily applied, objective
standard.” 

The Sixth Circuit in Miller v. United States
joined the Second Circuit’s reading of § 7502 and rejected
application of the common-law mailbox rule. 

,
730–31 (6th Cir. 1986) (per curiam). In that case, the IRS’s
records established that no claim for refund was ever received,
but the taxpayer offered proof of proper mailing well within the
statutory period. 

evidence, the Court
concluded that “the only exceptions to the physical delivery rule
available to taxpayers are the two set out in section 7502.” 

       We decline to follow these decisions. The Second
Circuit’s reasoning in Deutsch—essentially that Congress’s

  11
     The Court reaffirmed its holding in Deutsch in Washton v.
United States, 

, 49–50 (2d Cir. 1993) (rejecting
evidence that the taxpayers mailed their documents well before
the filing deadline).
       12
       The Sixth Circuit has continued to apply this rule in
various cases such as Carroll v. Commissioner, 

,
1230–31 (6th Cir. 1995) (rejecting “unimpeachable proof of
mailing” 54 days before the filing deadline).

                               28
desire was to create an easily applied and objective standard—is
insufficient under the well-established principle that Congress
must clearly indicate its intent to repeal a common-law rule. See
Norfolk 

. Even assuming the
common-law mailbox rule is neither easily applied nor
objective, an assumption about which we are skeptical, that
alone is insufficient. It does not clearly follow from Congress’s
enactment of an additional taxpayer protection with easily
applied standards that it sought simultaneously to repeal an
existing common-law protection with less easily applied
standards.

       The Sixth Circuit in Miller appears to have treated the
mailbox rule as an “exception” to the physical delivery rule.
Because Congress did not list the mailbox rule in § 7502 along
with other exceptions to the physical delivery rule, the Court
reasoned, it must have intended to exclude the mailbox rule. See

–31. We have already explained that
while § 7502 is truly an exception to the rule of actual timely
receipt, the common-law mailbox rule is not. Indeed, the Sixth
Circuit admitted as much in its later decision in 

n.2, thereby undercutting its own rationale in Miller
despite reluctantly adhering to the case’s holding as binding
precedent.13 Under the common-law mailbox rule, the ultimate


   13
     The Carroll Court noted that several judges on the Sixth
Circuit (including Carroll’s author, Judge David Nelson) had
voted to reconsider Miller’s holding en banc, but the number

                               29
question is still whether the document was physically delivered
before the deadline; the mailbox rule simply helps determine
when that delivery occurred. As noted, § 7502, by contrast,
actually excuses late receipt. That provision is thus an extra
taxpayer protection beyond what the common-law mailbox rule
provides. Even if Congress sought to limit the reach of § 7502’s
extra-statutory protection via § 7502(c), it does not follow that
it simultaneously sought to repeal the more modest protection
that already existed at common law. The text of the statute does
not call for this result, and any conclusion that Congress



was less than the needed majority.           

       It also
conceded:

          Strictly speaking, of course, the taxpayers in the
          case at bar are not contending that they come
          within a judicially created “exception” to the rule
          that a filing is complete only at the time of actual
          delivery to the IRS. The taxpayers contend,
          rather, that when they proved that their S-
          corporation election form was mailed to the IRS
          54 days in advance of the filing deadline, they
          made a prima facie showing of timely
          receipt— actual receipt, not constructive
          receipt—by the agency. Like the Eighth Circuit,
          we are satisfied that the contention is inconsistent
          with Miller.

intended it would be, in our view, speculation.

        In sum, we hold that, at least where a taxpayer does not
rely on § 7502’s protection and produces circumstantial
evidence beyond its own testimony that it mailed the tax
document early enough to allow timely physical delivery, it may
avail itself of the common-law mailbox rule.14




  14
      The Department of the Treasury has proposed a regulation
that, if valid, would seemingly negate this holding for some
future cases, providing that “[o]ther than direct proof of actual
delivery, proof of proper use of registered or certified mail is the
exclusive means to establish prima facie evidence of delivery of
a document to the agency, officer, or office with which the
document is required to be filed,” and that “[n]o other evidence
of a postmark or of mailing will be prima facie evidence of
delivery or raise a presumption that the document was
delivered.” Timely Mailing Treated as Timely Filing, 69 Fed.
Reg. 56,377 (proposed Sept. 21, 2004) (to be codified at 26
C.F.R. § 301.7502-1(e)(1)). Even if ultimately adopted,
however, the regulation would not affect cases like this one
where the documents were mailed before September 21, 2004.

codified at 26 C.F.R. § 301.7502-1(g)(4)) (stating that
the proposal, “when published as final regulations, will apply to
all documents mailed after September 21, 2004”). For
discussion, see Donald T. Williamson & A. Blair Staley, Are the
Proposed Timely Mailing/Timely Filing Regulations Timely?,
108 Tax Notes 597 (Aug. 1, 2005).

                                31
              d.     The Fund Is Eligible to Avail Itself of
                     the Mailbox Rule

       Here, the District Court should have applied, but did not
apply, the mailbox rule. The Fund does not rely on § 7502’s
protection, and the evidence suggesting that refund requests
were mailed on May 8, 2003 and June 13, 2003 goes beyond the
Fund’s bare testimony. As the Fund points out, that evidence
consists not only of Ms. O’Neill’s sworn affidavit, but also, for
instance, the following: Mr. Pontarelli’s testimony that he
drafted the May 8 Letter on or before May 8, 2003; Mr.
Pontarelli’s testimony that Revenue Officer Dugan expressly
acknowledged receipt of the May 8 Letter; a computer printout
showing that the June 13 Letter was in fact composed by Ms.
O’Neill on June 13; the IRS’s actions after June 2003, in
particular its meeting with the Fund’s representatives in August
2003, which suggest that there was a precipitating event—such
as the mailing of a refund request—that triggered this
governmental response; and Revenue Officer Dugan’s own
testimony that Mr. Pontarelli and Ms. O’Neill were “frantic,” “in
an uproar,” and “so nervous and concerned” when they called
him on May 7, 2003. Accordingly, the District Court erred in
denying the Fund the benefit of the mailbox rule.

V.     Conclusion

       O’Neill lacks standing to sue the United States for a
refund, as 28 U.S.C. § 1346(a)(1) has conferred no right to sue

                               32
on O’Neill and it does not qualify for third-party standing to
assert the Fund’s rights under the statute. Accordingly, we
affirm the District Court’s grant of summary judgment to the
Government on this issue.

        However, we disagree with granting summary judgment
to the Government on whether the Fund timely filed its refund
request. There is sufficient direct evidence of pre-June 25, 2003
receipt of the refund requests to raise a genuine issue of material
fact. Moreover, because the Fund does not rely on § 7502’s
protection and produced circumstantial evidence beyond its own
testimony that O’Neill mailed the refund requests early enough
to allow receipt by the IRS before the deadline, it may avail
itself of the common-law mailbox rule. Accordingly, we vacate
the District Court’s order to the extent it granted summary
judgment on the timely filing issue and remand the case for
further proceedings.




                                33