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MOTION TO DISMISS PETITION AS UNTIMELY GRANTED -- TIMELY MAILING RULE DOESN'T APPLY.

JUN. 24, 2003

Cabirac, Michael v. Comm.

DATED JUN. 24, 2003
DOCUMENT ATTRIBUTES
  • Case Name
    MICHAEL CABIRAC v. COMMISSIONER OF INTERNAL REVENUE
  • Court
    United States District Court for the Eastern District of Pennsylvania
  • Docket
    No. 02-8057
  • Judge
    Padova, John R.
  • Cross-Reference
    Michael Cabirac v. Commissioner, 120 T.C. No. 10 (Apr. 22,

    2003). (For the full text, see Doc 2003-10230 (18 original

    pages) or 2003 TNT 78-10.)
  • Parallel Citation
    92 A.F.T.R.2d (RIA) 2003-5269
    2003 WL 21790356
  • Code Sections
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2003-22327 (3 original pages)
  • Tax Analysts Electronic Citation
    2003 TNT 198-42

Cabirac, Michael v. Comm.

 

IN THE UNITED STATES DISTRICT COURT

 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 

 

ORDER

 

 

[1] AND NOW, this 23rd day of June, 2003, upon consideration of this Court's Order, dated this same day, vacating its Order dated April 16, 2003 and granting Defendant's Motion to Dismiss, IT IS HEREBY ORDERED that Defendant's Motion for Judgment on the Pieadings (Doc. No. 13) is DISMISSED AS MOOT.
BY THE COURT:

 

 

John R. Padova, J

 

* * * * *

 

 

ORDER

 

 

[2] AND NOW, this 23rd day of June, 2003, IT IS HEREBY ORDERED that this Court's Order (Doc. No. 8) dated April 16, 2003, denying Defendant's Motion to Dismiss (Doc. No. 6) is VACATED. IT IS FURTHER ORDERED that Defendant's Motion (Doc. No. 6) is GRANTED. This case shall be closed for statistical purposes.1
BY THE COURT:

 

 

John R. Padova, J.

 

FOOTNOTE

 

 

1The Court vacates its Order dated April 16, 2003, denying Defendant's Motion to Dismiss. That order is an interlocutory order and the Court "has the inherent power to reconsider and modify an interlocutory order any time prior to the entry of judgment." In re Resource America Sec. Litig., No. CIV. 98-5446, 2000 WL 1053861, at *2 (E.D. Pa. Jul. 26, 2000); see also United States v. Jerry, 487 F.2d 600, 605 (3d Cir. 1973). In that Order, the Court applied Federal Rule of Civil Procedure 6(b) ("Rule 6(b)") in determining that Plaintiff's "excusable neglect" extended the deadline for his filing of his Petition regarding a tax determination ("Determination"). Title 26, United States Code, section 6330(d) governs such Determination filings and sets forth the applicable statute of limitations. A petitioner must file whith the district court within 30 days of the Determination. 26 U.S.C. § 6330(d) This deadline is a statutory deadline. Rule 6(b) applies only to the Federal Rules of Civil Procedure and court orders. Fed. R. Civ. P. 6(b). It does not apply to statutory limitations. See Village improvement Ass'n. of Doylestown v. Dow Chemical Co, 655 F. Supp. 655 F. Supp. 311, 315 (E.D. Pa. 1987) ("No where does Rule 6(b) contain a grant of authority which would allow a district court to extend a deadline statutorily prescribed by Congress.") Accordingly, the Court vacates its Order.

Now, in turn, the Court grants Defendant's Motion to Dismiss. Plaintiff did not file his Petition with this Court within the 30-day statute of limitations set forth in 26 U.S.C. § 6330(d). The "Notice of Determination Concerning Collection Actions Under Section 6320 and/or 6330" is dated September 19, 2002 (Compl. at ¶12; Def.'s Mem., Ex. 1) Pursuant to Section 6330(d)(1)(B) Petitioner had thirty days from September 19, 2002, in which to file his Petition for judicial review. The thirtieth day following September 19, 2002, was October 19, 2002, which fell on a Saturday. The Petition was, therefore, due the next business day, Monday, October 21, 2002. The Petition was postmarked October 21, 2002, but was filed October 24, 2002.

Federal Rule of Civil Procedure 5(e) defines filing with the Court in relevant part as follows: "The filing of papers with the court as required by these rules shall be made by filing them with the clerk of court . . . ." Fed. R. Civ. P. 5(e). Filing by mail, however, is not complete until "the complaint is delivered to an officer of the court who is authorized to receive it." Wiss v. Weinberger, 415 F. Supp. 293 (E. D. Pa. 1976) (citation omitted). Accordingly, the Petition was not filed until October 24, 2002, when the Clerk filed it.

There is no applicable basis for an extension of this deadline. The discovery rule is inapplicable because Plaintiff became aware of his right to file the Petition when the Determination was made. Equitable tolling is also not applicable. The statutory period is jurisdictional and cannot be extended. See, e.g., McCune v. Commissioner of internal Revenue, 115 T.C. 114, 117 (U.S. Tax Ct. 2000). When the filing requirements are jurisdictional, as they are in this case, "non-compliance bars an action regardless of the equities in a given case." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380 (3d Cir. 1994) (citation omitted) . Accordingly, Plaintiff's action is time-barred and the Court grants Defendant's Motion to Dismiss.

 

END OF FOOTNOTE
DOCUMENT ATTRIBUTES
  • Case Name
    MICHAEL CABIRAC v. COMMISSIONER OF INTERNAL REVENUE
  • Court
    United States District Court for the Eastern District of Pennsylvania
  • Docket
    No. 02-8057
  • Judge
    Padova, John R.
  • Cross-Reference
    Michael Cabirac v. Commissioner, 120 T.C. No. 10 (Apr. 22,

    2003). (For the full text, see Doc 2003-10230 (18 original

    pages) or 2003 TNT 78-10.)
  • Parallel Citation
    92 A.F.T.R.2d (RIA) 2003-5269
    2003 WL 21790356
  • Code Sections
  • Subject Area/Tax Topics
  • Jurisdictions
  • Language
    English
  • Tax Analysts Document Number
    Doc 2003-22327 (3 original pages)
  • Tax Analysts Electronic Citation
    2003 TNT 198-42
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