morning everyone as you can tell judge bybee is unavoidably absent this morning due to a death in the family he remains a member of the three judge panel for all of the cases on the calendar for today for those that are argued he will listen or view the videotape of the argument and participate fully in the decision and disposition of those cases the st case we have on calendar is submitted on the briefs pursuant to a prior order that's on versus sanger the nd case is also submitted on the briefs that is sangar versus on and we will hear oral argument or consolidated oral argument in the next set of cases organic cannabis foundation versus commissioner of internal revenue and northern california small business assistance versus commissioner of internal revenue and thirteen a says that a taxpayer who lives in the united states have ninety days to file a petition asking the tax court to review for the notice of deficiency correct that's accurate and then there are some exceptions if you go to seventy five dollars o two a one it says there is a timely mailing of the tax document is treated as timely filing if certain conditions are met the st is that it's goes by the u s mail and the  nd is you can go to seven hundred and fifty to have two private services are allowed but they have to be those they designate correct and so if we go under the statute itself there was no timely filing and none of the exceptions apply correct well in this case it's our contention that well just read the rules just read the rule i mean it isn't the language of the statute is not aside all it's very clear says you can do it by mail and they could if you could do it by private service as long as you're designated and they could have and they did neither there is a designation the secretary has to give and that service did not have the designation are consistent qualify as i had not about you contending it it's about the statute is pretty clear they can take advantage if they are designated by the secretary and so you look at what that secretary designated in you you used a service not designated isn't that true your honor it's our position  position is is not then just answer my question it's pretty simple yes no question did you use a service designated by the secretary yes or on no you did not you code refers to the secretary's ability to promulgating very private delivery services that you want me to read what the code says doesn't say that it all says they're allowed to take advantage of the rule if the server services are designated by the secretary for a period correct and it wasn't direst sets in this case direst designates these services by issuing administrative notices and they did in this case the notice in effect at the time was two thousand and forty three and provided that fed ex had to st to deliver overnight delivery services but just a minute you know all of these things that you're arguing here just for me just say somehow these statutes that i have in front of me are ambiguous and therefore i ought to be reading something in and i'm trying to figure out why it's not clear and were approved it allowed for the earliest legit but that isn't the question it isn't a question of whether it's inferior service or whether it's a good service equally good or whether it's a service that's better it's the statute is pretty clear it's designated that's and i'm not designated are not there regardless of how good or bad they are but in this case you have a situation where fed ex what happens if x offers a different feature to approved delivery services does that have the effect of uncertified decertifying a designated service merely by adding new features or in this case by changing a name marketing it under a new distinct service where it is really as the other sort of how do you fit it into the statutory language where you are you asking us to adopt a broader understanding of the term designate or a broader understanding of the term service or both and if so explain how it ties into the language sure it's not really a statutory interpretation it's interpretation of the actual notice that the iris issued designating services and what happens where you have a private delivery service that offers new features or that changes the name for marketing purposes that the language in the notice is silent we don't have it so well next no the notice specifically says after designating certain services that other services offered by those carriers are not designated how how do you address that sentence will are we address that by saying that it's the same service it's the fact that there's a marketing change in the name or if there's an additional service that's offered such as photographing the aca john the doorstep or something to that effect the fact that fedex chooses to do something like that unilaterally without getting consent from the i r s doesn't have the effect so it's your view this is equivalent this is the if it was just a change of name would need to designate it sure it's it was in fact added two weeks later but i know that's why because it wasn't designated before and it isn't simply a change of name right  this case prior court holdings have regarded the ninety day deadline is as jurisdictional prevailing supreme court precedent has recently clarified that statutory time bars are almost never jurisdictional the supreme in a timely manner the nd those two things it provides a deadline and it provides restrictions on the i r s during that deadline yeah doesn't really says to what we are really saying is the e sentences says the tax court shall have no jurisdiction to enjoin any action or proceeding order any refund on the subject or is it your position that that's only a partial deprivation of jurisdiction and that is that period so the tax the tax payers would have to go to the district courts in order to get an injunction to stop the i r s from collecting or assessing the tax prematurely and in one thousand and eight that congress added this provision  to provide jurisdiction to the tax court if and if that were to be your argument and you really want to make it quite into make it to the tax code so the tax where did address just a minute if that were your argument why didn't share address it to the barracks court why did you make that argument well if you don't make the argument why don't i say it's waived well there's a few points on that your hon point there's a few points on it that i can i can in my discretion say it isn't waived sure but i guess the big problem that i have in this is if this was your big issue why didn't you make it to them so we had a chance for them to  deal with that rather than have it before us now i was a district judge i frankly hated the th circuit looking over the top of my shoulder and deciding cases on things i never ever pay gave to me and that's exactly what you want to have happen here why in this case attacked what did address equitable tolling it specifically said it did not have equitable powers well extend the deadline for you're not really going to argue that tax courts one line that it didn't have equitable  tara powers to extend the deadline is enough to say they considered a daria but i mean that was just a statement of tax court president that didn't even focus on the issue sir the point is well taken your honor the  palace also did argue the forfeiture let me ask you this if we're really going to talk about this case it seems to me that one might argue that this is purely one of  but then it either hasta not depend on the factual rela record developed below or the record been developed no one even argues that the record has been developed or does not depend on it being developed nobody even argues that why that's the big question i can't get it under an exceptional case and it certainly isn't a new issue so i'm down to one of law and then i've got to find that the record is adequately developed or it doesn't depend on it being adequately developed out of pellets that make that point on trees that this was purely an issue of law but just a minute i don't think it is a nobody talks about whether the record admit develop because even if you get here the next thing you're going to tell me is this is equitable tolling and if i'm going to determine equitable tolling then i have to determine whether the litigants of diligently pursue their rights well to be fair that is totally factual that has nothing to do with the law so i'm having a tough time how that can depend on this factual record which was not developed or did not need to be developed your honor the we believe this is a factual record is adequately develop how can it be adequate what is there in this record that tells me whether this is a good case for equitable tolly we don't know why your client waited for seventy seven days to do anything well the fact of the we don't know do we i mean they had seventy seven days now i remember when i was in a situation like yours and my clients sent me to washington d c to file the thing because they were so worried that i'd be done on time in this case nobody did that and so equitable tolling will depend a lot on why you did what you did  good morning your honors paula lists from the department of justice tax division on behalf of the commissioner of internal revenue may please the court the tax court appropriately dismissed this case for lack of jurisdiction as the court pointed out in it supreme court's precedents equitable tolling should not apply to extend the deadline in this case or in any case why does it make any sense to punish the huge lead again because the secretary who was in charge of this mailing tried to do the right thing and picked the earliest service if she had picked a later service which happened to be on the list they would have been fine but because she tried to do one better and honor st because there were other options available to the appellants when they when they chose the servers that they chose the notice that controlled which private services were designated had been published for many years before this happened and  in addition there was no need to to resort to a private service delivery service because mailing is always an option under section seven thousand five hundred and two dollars so depositing in the u s mail alone would have made timely filing here and the in the record if you review the the affidavit that was filed by the secretary in this case she indicated in her declaration that the following day because she had sought an email confirmation of delivery to the tax court the following day she had not received that e mail delivery and therefore she called the tax court to find out whether it had been filed or not and she was told it had not been filed now that day was the last day for filing and under rule seventy five dollars a if appellants council had placed the petitions in the mail even that day after they knew that the petition had not been delivered by that x they could have gotten the benefit  the building your honor the record contains no evidence beyond the declaration i believe again from the secretary at the appellant's firm who indicated that she had spoken with an operator at fedex who was reading the notes that were put into the system by the fed ex delivery person which may have indicated that there had been some kind of closure around the tax court there is no evidence that court was closed that day the tax court clerk's office was open that day and well i mean what the ruling says is that it was not it was not closed for the whole day which you would kind of quarterly doesn't say whether it was close for part of the day your honor i don't think that there's any there was no finding by the tax court as to whether it was closed or not specifically or the time periods during which it was close i think when the tax court made that statement it was simply trying to make the point that even if the fed ex driver had been able to access the court at the time that he st tried to make the delivery that doesn't mean that he would have been able to come back later in the day in and seek to do delivery again would we would we need to reach the jurisdictional question tolling should or should not apply can we really make that determination on this record i mean it seems to me that that's one of the reasons why this may not be really a question of law because there are facts in this situation which are not in the record which would adequately tell me whether we ought to have a credible tolling or not so i guess again my question is equitably told it would need to remain in the matter to the tax court for a factual inquiry into whether equitable tolling sort apply in this case if the court determines however that under no circumstances could six ever be equitably told following brokamp and that line of cases then there would be no need to remain for that taxable inquiry if we've if we were to hold that the issue of equitable tolling was forfeited and that given the fact intensive nature of it the fortune for sure should not be overlooked would we then need to reach the jurisdictional issue no your honor i don't think so because if the equitable tolling issue is for then even if it would have applied the appellants have lost their ability to make that challenge which means there is no basis for a finding that the petitions here were filed in a timely manner even if the time when that is extended for a day or some period of time  they've lost their ability to make that argument but my good colleague reached the issue i wonder if you agree but no no your answer is yes your honor now on that point we believe that there courts guidance in this case i think is a little bit different than what has been argued by the appellants in their grease they seem to want to lay the cases out and examine a check checkmark of w this factor met was that factor met when in fact in brokamp the supreme court instructs that really the inquiry is is there good reason to believe that congress did not want the equitable tolling doctrine to apply and that's really what the supreme court has tried to do in its cases is look at each individual circumstance and determine if under under that particular provision is there a good reason to think that congress did not want to learn to apply and with respect to sixty to thirty nine there are many good reasons to fair inference that what she wrote down on the log is what was on the exterior of the amble well she declared that she declared that the that she had put the full address on the envelope meaning including the post office box another point on that  notice itself contains the post office box number in the address and the zip code that's in the address also contains the post office box it's the four digits that follow the zip code it's a little dash and that is also appearing on certified mail that they had to sign for them and it would they put a notice in the box and then they'd have to go pick them up how did i'm not certain about that specific the specific methodology by which they the log indicates  was certified and then the the tracking indicates you know would a difference between the date when it was deposited in the date when it was picked up do you know what accounts for that and did they to sign in didn't show up in the box i don't know the answer that question your honor i'm not sure if it's in the record or not but the record is it's uncontroverted that in fact the appellant's received a notice with seventy eight dollars days left before the petition was due in the tax court and that is more than ample time to prepare a petition for redetermination of the deficiencies of determined by the secretary by the by the commissioner and get that filed in the tax court and for that reason because there was actual delivery with more than ample time left to file the petition even if the the notice had been sent to the wrong address or an improperly incomplete address that x will receive would would eliminate any problem with with the validity of the notice there are you really arguing that those seventy seven dollars days is no prejudice is that what you're arguing yes your honor yes because under mckay if the actual notice sent without prejudicial delay then there is no problem and honor erhard you can have it under actual notice no matter where the mail a notice but it has to do with the prejudice yes your honor and  seventy eight days is more than adequate to prepare the petition in this case now now getting back to the equitable the equitable tolling issue among the reasons why equitable tolling could never appl which someone can come into tax court also it has has two other effects it delineates when the when the i r s can assess and collect taxes when it can initiate that process of assessing and collecting taxes and it also controls district court jurisdiction for issuing refunds and both of those things change sixty to thirty they make it very different from other cases that have been analyzed where equitable tolling has been applied last question which is not in the record and which is just something that i thought of owed can this taxpayer still pay the dark and go to district court in this case yes your honor that that avenue is real avail open to them that avenue is available your honor interestingly enough because of the some provisions in the tax code if appellants are correct that section d of the internal revenue code a decision by the tax court a dismissal by the tax court is considered a decision on the merits and that the deficiency is as stated in the notice of determination unless the dismissal is for lack of jurisdiction and so in this case if it turns out that this dismissal would not be for lack of jurisdiction but merely for being untimely under a claims processing rule then under seventy who are fifty nine d that would count as a determination on the merits by the tax court that the deficiency is as stated in the notice this court has held in many courts of hell that tax court rulings are race judicata and one is that ruling comes  down the refund action is precluded but if it's jurisdictional and dismissed is jurisdictional way out of time then they could pay the amount go to district court and litigate the same issues that they were trying to raise and that's correct your honor and that's harsh result that could come when you attach a jurisdictional label here that horse result is at least softened if not eliminated because there's an alternative remedy in the refund action and district court and as i just pointed out making  there was some kind of closure obstacle to getting in it was early in the morning and there are any cases that support the view that that excuses you for the rest of the day even if it's open for six hours for the remainder of the day honor there's a case for example united states leather cited in the briefs the th circuit applied rule sixty three dollars and found that the deadline was extended where the litigant was in another city and one was unable to reach the court in that case it was due to an ice storm honor so we've got a litigant who can't access or similar in this case your honor we've got a litigant located in the bay area doesn't have the ability to drive to washington d c until it has the ability to put another copy in the mail i mean once you know there was a problem why shouldn't i mean presumably the lawyers then found out they could have just done belt and suspenders and nel another one that then other options are on and that's accurate in this case we do think that the fact that the fed ex employee was unable to access the tax court even if it was fleeting in this case said the rule does not require inaccessibility for the entire day so he was not the driver was unable to access it the evidence was less than clear in this case the nature of the inaccessibility because the i r s waited for a year and three months to raise this as an issue in the tax court and so by that time fed ex had purged its records according to its normal record keeping practices and there was no detailed example of why fed ex was unable to deliver a position to the tax work that's what you really didn't answer my good colleagues question which is once knowing what you knew it was simple you could just put it in the mail so there was an option it wasn't as if you didn't have any access like the person who was out in the snowstorm all day long in this particular instance you just could have just put in the mailbox and it had been done you're out of there are other cases for example where the