IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PHILADELPHIA MARINE : CIVIL ACTION

TRADE ASSOCIATION/ :

INTERNATIONAL :

LONGSHOREMEN’S :

ASSOCIATION VACATION :

FUND, et al., O’NEILL :

CONSULTING CORPORATION, :

Plaintiffs, :

:

vs. :

:

UNITED STATES OF AMERICA, :

Defendant. : No. 04-4857

Gene E.K. Pratter, J. Memorandum and Order July 17, 2006

The parties to this case, which involves a request for a refund of tax penalty payments,

have filed cross-motions for summary judgment. For the reasons that follow, the motion of the

United States of America will be granted, the motion of the Plaintiffs will be denied and

judgment will be entered in favor of the United States of America.

I. FACTUAL AND PROCEDURAL BACKGROUND

Philadelphia Marine Trade Association/Int’l Longshoremen’s Fund (the “Fund”) is a

multi-employer trust fund organized under Section 501 of the Internal Revenue Code that is

funded by contributions made pursuant to the collective bargaining agreements between the

Philadelphia Marine Trade Association and various local unions of the International

Longshoremen’s Association. Plaintiffs’ Memorandum in Support of Summary Judgment at 1. 

The Fund pays out monies twice annually to bargaining unit employees of member-employers for

whom funds have been paid pursuant to the Philadelphia Marine Trade Association’s collective

bargaining agreements with the Int’l Longshoremen’s Association that represents the employees.

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 The amount, date and reason for the levy are undisputed, as is the fact that the amount

of the penalty represented 10% of the total taxes not remitted electronically. United States’

Response to Plaintiffs’ Motion for Summary Judgment at 3. However, the United States asserts

that the time at which Plaintiffs learned of the levy is unknown.

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Id. O’Neill Consulting Corporation (“O’Neill”) is a third party administrator for the Fund to

handle the day-to-day management and administrative servicing of the Fund. Id. at 2. O’Neill, a

family-owned consulting business, was responsible for calculating and remitting taxes to the

Internal Revenue Service on behalf of the Fund. Id.

On June 25, 2001, the Commissioner levied upon $ 160,386.48 held by the Fund in a

money market account at PNC Bank.1 The levy was taken on account of penalties assessed for

failing to electronically remit taxes for the Fourth Quarter of 1999 and the Second and Fourth

Quarters of 2000. The existence of the levy was not discovered until the summer of 2002, when

Anthony Pontarelli, CPA , was hired by O’Neill to audit the books and records of the Funds. 

Plaintiffs’ Memorandum in Support of Summary Judgment at 3. Mr. Pontarelli apparently

noticed the levy listed as a balance sheet item and began to investigate it. Mr. Pontarelli

discovered the nature of the debit when, on or about April 12, 2003, he obtained a copy of a debit

recording slip from PNC Bank. 

Mr. Pontarelli informed Susan O’Neill, president of O’Neill, about the levy and, on May

7, 2003, they together placed a call to Revenue Officer James Dugan of the Internal Revenue

Service. The parties are in dispute as to what was said during the course of this conversation. 

Plaintiffs assert that Mr. Dugan informed them that the levy was related to tax payments for the

Fourth Quarter of 1999 and the Second and Fourth Quarters of 2000 and advised them to send a

copy of the levy and all corresponding Forms 941 and Schedule B to his attention. The United

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 The United States points to an inconsistency in the May 8 Letter, in that Mr. Pontarelli

referred to the quarterly federal tax returns for “both quarters in question” as opposed to the three

quarters that were originally in dispute. United States’ Opposition to Plaintiffs’ Motion for

Summary Judgment at 5. While the United States is correct in this observation, the tax returns

that were attached to the May 8 Letter were returns for the Fourth Quarter of 1999 and the Fourth

Quarter of 2000. O’Neill Aff. at Ex. A. The penalty that was refunded to Plaintiffs represented

the levy attributable to the Second and Fourth Quarters of 2000 (denying refund of the Fourth

Quarter of 1999 penalty because the Form 941 was allegedly not timely filed). O’Neill Aff. at ¶

17. To the extent that the May 8 Letter can be construed as a request for a refund, it appears that

the quarterly payment in dispute was included in that letter.

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States asserts that Mr. Dugan does not recall explaining the reason for the levy or requesting any

information from Plaintiffs.

Plaintiffs assert that subsequent to the May 7 telephone call, Mr. Pontarelli drafted a letter

(the “May 8 Letter”) to Mr. Dugan for signature by himself and Susan O’Neill and on behalf of

Philadelphia Marine Trade Association. Pontarelli Dep. at 46:5-21. In the May 8 Letter, Mr.

Pontarelli stated that “[w]e believe that the assessment of a federal tax deposit penalty was made

in error” and requested that the matter be reopened for further investigation. May 8 Letter. Mr.

Pontarelli further stated that “[g]iven the above we believe that a refund will be due to the fund

and request this petition for a refund be processed at your earliest opportunity.”2 May 8 Letter. 

Mr. Pontarelli testified that he personally faxed the May 8 Letter to Ms. O’Neill, and Ms. O’Neill

testified that she received and immediately signed it and sent it via United States Postal Service

Overnight Mail to Mr. Dugan. Pontarelli Dep. at 45:13-21; O’Neill Aff. at ¶ 6. However, Ms.

O’Neill cannot provide a proof of mailing of the May 8 Letter and because the postage was paid

through a meter at O’Neill’s office and there is no separate billing record to support this

assertion. O’Neill Aff. at ¶ 7. 

Ms. O’Neill further asserts that later in May of 2003 she telephoned Mr. Dugan and that

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 Mr. Dugan testified that because the tax penalty had been paid in full at the time the

original call was made, the file was closed and he would not have had a paper file folder in which

to house any subsequent letters, if they were received. Dugan Dep. at 19:23-24; 20:1-6. Mr.

Dugan also speculated that the letters, if they were sent at all, would have to have been sent prior

to his receiving the original phone call inquiring about the penalties; otherwise, he would have

kept the letters had he received them. Dugan Dep. at 37:23-24; 38:1-2.

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he told her he had not yet had an opportunity to review the file, and that she followed up her

telephone call with another letter to Mr. Dugan dated June 13, 2003 (the “June 13 Letter”), the

postage of which was also affixed by a metering machine in O’Neill’s office. O’Neill Aff. at ¶ 8. 

Contrary to the Plaintiffs’ recollection, Mr. Dugan testified that he only recalled receiving the

original telephone call from Mr. Pontarelli and Ms. O’Neill and the subsequent meeting with

them, and he did not recall whether he received the May 8 Letter or the June 13 Letter.3 Dugan

Dep. at 19:13-17; 32:16-22; 33:19-24; 37:6-7.

Plaintiffs next assert that in late June of 2003, Mr. Pontarelli received two voicemail

messages from Mr. Dugan. The first message allegedly informed Mr. Pontarelli that the file had

been reviewed and that Mr. Dugan would process the appeal and obtain a refund for the Fund. 

Pontarelli Dep. at 52: 7-18; 55:7-10. In the second message, Mr. Dugan allegedly stated that the

refund would not be immediately forthcoming because the matter was more complicated than he

anticipated. Pontarelli Dep. at 53:1-6. Mr. Pontarelli and Ms. O’Neill each further allege that

they continued to be in contact with Mr. Dugan during July of 2003, and that during the latter

part of July, they first learned that the penalties giving rise to the levy were not for late payments

or missing schedules but rather were penalties assessed because the taxes had not been

electronically filed. Pontarelli Dep. at 62:1-24; 63:1-13; O’Neill Aff. at ¶ 10.

The parties agree that a meeting was held in August of 2003 to discuss the matter, and

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 A “Power of Attorney and Declaration of Representative” form, which conferred a

limited power of attorney upon Mr. McGoldrick on behalf of the Fund, was attached to the claim. 

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 The entire levy appears to have been taken on the same day, June 25, 2001. The

Internal Revenue Code provides that the time limit for filing a claim or refund is “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.” 26 U.S.C. § 6511(a). If no return was filed by the end of the tax

period, the time limit is 2 years from the time the tax was paid. Id. Thus, it appears that returns

must have been filed after September 15, 2003 (the date of the formal request for a refund) for

the penalties corresponding to the Second and Fourth Quarters of 2000. Otherwise, the time

limitation would have precluded a refund of those funds as well.

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that the meeting was attended by Mr. Dugan, Allison Sigler, who operated as a “trouble shooter”

for the Commissioner, Mr. Pontarelli and Thomas McGoldrick, counsel for O’Neill and that Ms.

Sigler and Mr. Dugan could not refund the monies at the meeting but provided Plaintiffs with a

“formal form 843.” O’Neill Aff. at ¶ 13; United States Statement of Disputed Facts at ¶ 10.

On September 15, 2003, Mr. McGoldrick filed, on behalf of O’Neill and the Fund,4 a

Form 843 (requesting a refund) accompanied by a nine-page letter explaining why a refund was

appropriate. O’Neill Aff. at Ex. D. In response, the Commissioner granted the Fund a partial

refund in the amount of $93,365.61, representing the portion of the levy, together with interest,

attributable to the Second and Fourth Quarters of 2000.5 On March 4, 2004, O’Neill filed a

formal appeal of the denial of the refund with respect to the Fourth Quarter of 1999. O’Neill Aff.

at Ex. D. By letter dated July 12, 2004, the Commissioner denied the appeal for the tax period

ended December 31, 1999 because, pursuant to IRS regulations, the request for a refund had to

have been filed within two years from the date the penalty was paid. O’Neill Aff. at Ex. E. In

summary, the Internal Revenue Service denied the request to refund the penalty for the Fourth

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 The “Tax Due” stated on the letter accompanying the Form 941 that was filed lists the

Fourth Quarter of 1999, the Second Quarter of 2000, and the Fourth Quarter of 2001. However,

the dates stated in all other papers filed by both parties, including the actual claim, indicate that

the respective tax quarters were the Fourth Quarter of 1999 and the Second and Fourth Quarters

of 2000. Thus, the reference to the Fourth Quarter of 2001 appears to be a clerical error.

7

 Although some of the Plaintiffs’ records indicate that the levy was taken on June 13,

2001, in its letter refusing to refund payment of the penalty for the Fourth Quarter of 1999, the

Internal Revenue Service states that the tax was levied on June 25, 2001.

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Quarter of 1999 because the Form 941, which was filed on September 15, 2003,6 would have had

to have been filed within two years from the date the penalty was paid for the Fourth Quarter of

1999, which was June 25, 2001.7 

Subsequently, O’Neill and the Fund entered into an agreement in which O’Neill paid the

actual tax penalty and the Fund agreed to cooperate with O’Neill in processing an appeal to the

Internal Revenue Service. Decl. of Joshua Smeltzer, Government’s Exhibit 102 at ¶¶ 1-2. The

agreement provides that if the appeal were to be successful, the Fund would refund O’Neill up to

the amount paid by O’Neill to the Fund. Id. at ¶ 3. Plaintiffs subsequently filed the present 

Complaint to recover the penalty in this Court.

Both parties have moved for the entry of summary judgment in their favor. The

Commissioner argues that judgment should be granted in its favor because (1) O’Neill lacks

standing to prosecute a claim for a refund and (2) Plaintiffs’ claim is barred by the statute of

limitations. Conversely, Plaintiffs argue that the May 8 and June 13 Letters expressly requesting

a refund of the levy constitute valid informal claims for refund and, therefore, a claim for a

refund was made before the required date. Plaintiffs alternatively argue that the common law

mailbox rule should apply to allow the Court to presume that because the May 8 and June 13

Letters were mailed before the June 25, 2003 deadline, the statutory requirements have been met. 

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Finally, O’Neill argues that it has standing to bring the case because the statute conferring

jurisdiction on the Court over tax matters, 28 U.S.C. § 1346(a)(1), must be interpreted broadly.

II. DISCUSSION

A. Jurisdiction

Subject matter jurisdiction over this dispute is conferred by 28 U.S.C. § 1346(a)(1),

which provides that “district courts shall have original jurisdiction of . . . any 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.” 

Thus, if the Fund’s claim was untimely filed pursuant to Section 6511 and 7422 of the Internal

Revenue Code, the Court’s jurisdiction over the claim may be extinguished. The burden of

establishing the existence of federal jurisdiction over a claim for a tax refund falls on the

taxpayer. Zabiegalski v. Comm’r of Int’l Rev., No. 93-0678, 1994 WL 178123, at *2 (M.D. Pa.

Feb. 22, 1994).

B. Standard of Review

Summary judgment is appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” FED. R. CIV. P. 56(c). An issue is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it might affect the outcome of

the case under governing law. Id.

A party seeking summary judgment always bears the initial responsibility for informing

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the court of the basis for its motion and identifying those portions of the record that it believes

demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at

trial, the moving party’s initial burden can be met simply by “pointing out to the district court

that there is an absence of evidence to support the non-moving party’s case.” Id. at 325. After

the moving party has met its initial burden, “the adverse party’s response, by affidavits or as

otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue

for trial.” FED. R. CIV. P. 56(e). Summary judgment is appropriate if the non-moving party fails

to rebut by making a factual showing “sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477

U.S. at 322. Under Rule 56, the Court must view the evidence presented on the motion in the

light most favorable to the opposing party. Anderson, 477 U.S. at 255.

C. Standing of O’Neill Consulting Corporation

The United States argues that O’Neill does not have standing to bring the instant claim

because the taxes at issue were paid via levy by the Fund and not by O’Neill. In turn, O’Neill

argues that because it agreed to reimburse the Fund for the entire amount of the levy and will

only recover the funds if the appeal is successful, standing is conferred because O’Neill holds the

true risk of injury if the claim is denied.

In the Complaint, the Plaintiffs rely on Section 6511 of the Internal Revenue Code to

assert that the Court has jurisdiction over this matter. Section 6511 states that a “[c]laim for

credit or refund of an overpayment of any tax imposed by this title . . . shall be filed by the

taxpayer.” 26 U.S.C. § 6511 (emphasis added). A “taxpayer” is defined as “any person subject

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to any internal revenue tax,” and a “person” is to be construed “to mean and include an

individual, a trust, estate, partnership, association, company or corporation.” 26 U.S.C. § 7701. 

The application of these statutory requirements is demonstrated in United States v. Williams, 514

U.S. 527 (1995).

In Williams, the Court addressed the question of standing in the context of the Internal

Revenue Code. The plaintiff, who was the ex-wife of a taxpayer, paid a tax lien under protest to

remove a lien from her property, and the Government argued that the plaintiff did not have

standing to assert a claim because her ex-husband was the actual party liable to pay the taxes. 

Williams, 514 U.S. at 529. The Government argued that because the plaintiff was not a

“taxpayer,” i.e., was not the person liable to pay the taxes, she could not file a claim for a refund

pursuant to Section 6511. Id. at 534. 

The Court rejected this argument, reasoning that the only purpose of Section 6511(a) was

to provide a deadline for filing administrative relief and was not intended to place a limit on who,

as a “taxpayer,” may file a claim. Id. Moreover, the Court noted that although the plaintiff was

not liable for the taxes, she had actually paid them, and, that pursuant to Section 6402(a) of the

Internal Revenue Code, a refund to “the person who made the overpayment” was authorized. Id.

at 536. Significantly, however, the Williams Court limited its decision to the particular

circumstances before it, noting that Ms. Williams had paid the taxes under protest to remove a

lien from property that she owned, and that it was not deciding whether “a party who volunteers

to pay a tax assessed against someone else may seek a refund under Section 1346(a).” Id. at 540.

Each of the parties in the case now before the Court relies on Williams to support their

respective arguments. O’Neill argues that because it entered into an agreement with the Fund in

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 In support of this argument, the United States points to two other district court cases in

which third party payers were precluded from filing tax claims. In MMR Corp. v. United States

(In re MMR Holding Corp.), No. 98-357, 2000 U.S. Dist. LEXIS 17723 (M.D. La. Oct. 27,

2000), the court concluded that the plaintiff, MMR Holding Corporation, did not have standing

to file a claim for a refund of a tax debt the company had paid on behalf of one of its officers. In

so holding, the court noted that the case was distinguishable from Williams in that no lien, levy

or other action had been taken against the corporation or its property.

Similarly, in Mobile Med. Support Svcs, Inc. v. United States, No. 98-1029, 2000 U.S.

Dist. LEXIS 15564 (D. Conn. Sept. 12, 2000), the court held that a corporation which paid

employment tax liabilities on behalf of two related corporations did not have standing to file a

claim for a refund because there was no evidence that the taxes were paid under protest or that

the corporation’s action was anything other than voluntary. That court concluded that under the

Williams limitation, the corporate payer had no standing to file a claim.

Neither of these cases have yet been cited by a court within the Third Circuit.

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which it would pay the tax penalty and will only be repaid if the appeal is successful, it has

standing because it will suffer an actual injury if the appeal is lost. The United States conversely

argues8 that the facts of this case are distinct from Williams because O’Neill did not pay the levy

under protest but rather voluntarily agreed to pay on behalf of the Fund as part of a settlement

agreement. 

Although several courts within the Third Circuit have cited to Williams, none have

addressed the issue presented here. In one case, decided the year before Williams, a district court

within the Third Circuit concluded that a sole owner of the capital stock of a corporation who

was told by a revenue officer that she was personally liable to pay the corporation’s taxes was

allowed standing to file for a refund of the monies. See Barris v. United States, 851 F. Supp.

696, 698 (W.D. Pa. 1994). The Barris court acknowledged a split between the circuit courts in

construing Section 6511, and concluded that because the statute merely imposed a limitation on

the time within which a claim could be filed, the use of the term “taxpayer” did not constitute a

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limitation on standing. Id. As such, the court refused to dismiss the claim because the plaintiff

alleged that she had paid the taxes based on a mistaken belief that she was personally liable.

The Court finds the circumstances presented here to be distinct from those in either

Williams or Barris. From the record presented it is clear to the Court that O’Neill knew that the

Fund, and not O’Neill, was actually liable to pay the taxes but voluntarily agreed to pay them on

behalf of the Fund pursuant to the terms of the agreement. The existence of the agreement

suggests that O’Neill recognized that its error was the source of the delay in discovering the levy. 

Thus, the essence of the agreement is rooted in O’Neill’s business decision to anticipate its

potential professional liability obligation to cover the expense to the Fund, and does not suggest

that O’Neill erroneously or otherwise believed it bore any obligation to the Internal Revenue

Service. In fact, the payment that O’Neill made was to reimburse the Fund, and not the Internal

Revenue Service. Although the agreement refers to the fact that the Fund would be appealing the

levy, because there was no actual payment by O’Neill to the Internal Revenue Service, it is

difficult to construe the payment as one made in protest. Because the liability in question in this

case is not that of O’Neill, and there is no evidence that O’Neill involuntarily made

reimbursement to the Fund for the levy, the Court concludes that O’Neill does not have standing

to bring this case. Therefore, judgment in favor of the United States will be entered with respect

to O’Neill.

D. Timeliness of Request for Refund

The United States argues that because the Fund did not submit a timely formal claim for a

refund, and because the Fund cannot prove the date of delivery for the May 8th and June 13th

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 In its Memorandum in Support of the Motion for Summary Judgment, the United States

asserts that the May 8 and June 13 Letters are only alleged to be informal claims for a refund. 

United States Memorandum at 10. 

In certain circumstances, a written document may be construed as an informal request for

a tax refund. United States v. Kales, 314 U.S. 186 (1941). In Kales, the plaintiff filed a “written

protest” of a tax assessment within the allowable statutory period, and nearly three years later

filed a “formal claim” for refund of the taxes that was stated to be an amendment of her prior

claim. Kales, 314 U.S. at 191. In holding that the original “written protest” was to be considered

a claim for a refund, the Court noted that the circumstances of the case supported such a finding. 

Id. at 196-97. 

To be treated as an informal claim for a refund, a document must be a writing “which

informs the administrative agency that the taxpayer believes that he has been subjected to an

erroneous or illegal tax exaction, and that he desires a refund or credit because of such action.” 

Damelio v. United States, 679 F.2d 313, 315 (3d Cir. 1982) (concluding that letters that failed to

advise the government “that [the plaintiff] believed it was entitled to a refund” were not

sufficient to establish a formal claim). A taxpayer seeking to have their communication treated

as an informal claim “must inform the Internal Revenue Service that a claim for a refund is being

asserted, and must provide enough information so that the IRS can adequately examine the merits

of the claim.” Evans v. United States, 618 F. Supp. 621, 622-23 (E.D. Pa. 1985), aff’d, 787 F.2d

581 (3d Cir. 1986). In following Kales, courts within the Third Circuit have held that the written

component of an informal claim must be evaluated in the context of all of the surrounding

circumstances of a particular case, and that “the adequacy or sufficiency of an informal refund

claim is primarily a question of fact.” Estate of Tinari v. United States, No. 97-1974, 1998 WL

720156, at * 2 (E.D. Pa. Sept. 11, 1998).

Here, in the May 8 Letter, Plaintiffs state their belief that the tax assessment was

erroneous and that a refund should be forthcoming. In the June 13 Letter, Ms. O’Neill states that

she is “anxious to resolve this matter and have the money returned to this Fund as quickly as

possible.” For purposes of the argument set forth by the United States, the Court hereby

concludes that the May 8 and June 13 Letters were informal requests for a refund of the levy.

12

informal letter requests,9 any refund request was untimely, thereby removing the Court’s

authority to adjudicate this claim.

To seek a refund of overpaid taxes, a taxpayer must file a timely claim for a refund

pursuant to 26 U.S.C. § 6511. C.I.R. v. Lundy, 516 U.S. 235, 239 (1996). Section 6511

provides that a “[c]laim for credit or refund of an overpayment of any tax imposed by this title in

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10 As stated above, the levy was taken by the United States on June 25, 2001. Thus,

Section 6511 requires that any claim for a refund of the levy must have been filed on or before

June 25, 2003. 

13

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.” 26 U.S.C. § 6511(a). Section 6511 also states that “[n]o credit or

refund shall be allowed or made after the expiration of the period of limitation prescribed in

subsection (a) for the filing of a claim for credit or refund, unless a claim for credit or refund is

filed by the taxpayer within such period.” 26 U.S.C. § 6511(b). Thus, a refund suit that is not

timely filed under the provisions of 26 U.S.C. § 6511(a) must be dismissed. See Krieger v.

United States, 539 F.2d 317, 320 (3d Cir. 1976).

The United States argues that because the Fund did not file a formal claim for a refund

until September 15, 2003, the claim was untimely filed.10 The United States further asserts that

the May 8 and June 13 Letters cannot be considered timely filed because the United States has no

record of ever having received the letters and the Fund cannot, pursuant to the exceptions set

forth in Section 7502 of the Internal Revenue Code, provide proof of actual delivery of the

letters.

In response, Plaintiffs present a two-pronged argument. Plaintiffs first argue that Section

7502 does not preclude their letters from being considered appropriate requests for a refund

because that provision applies only when a claim is delivered after the prescribed date, and that

both the May 8 and June 13 letters would have been received well prior to the June 25 deadline. 

Plaintiffs secondly argue that the common law “mailbox rule,” under which a letter that is shown

to be properly mailed is presumed to be received by the addressee, has not been displaced by the

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specific statutory requirements and would apply here. 

1. Applicability of Section 7502 

Acknowledging that in some instances, refund claims have been mailed before a specific

deadline but received afterward, the Internal Revenue Code provides statutory guidance to

determine timeliness of filing. Section 7502 of the Internal Revenue Code states that “[i]f any

return, claim, statement or other document required to be filed . . . within a prescribed period or

on or before a prescribed date . . .is, after such period or such date, delivered by United States

mail to the agency, officer or office with which such . . . claim . . . is required to be filed, . . . 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 . . . .” 26

U.S.C. § 7502(a)(1). This rule applies only if “the postmark date falls within the prescribed

period or on or before the prescribed date . . . for the filing . . . of the . . . claim” and “the . . .

claim . . . was, within the time prescribed . . . deposited in the mail in the United States in an

envelope or other appropriate wrapper . . . properly addressed to the agency, officer, or office

with which the return, claim, statement or other document is required to be filed . . . .” 28 U.S.C.

§ 7502(a).

Section 7502(b) states that the timely mailing rule “shall apply in the case of postmarks

not made by the United States Postal Service only if and to the extent provided by regulations

prescribed by the Secretary.” 26 U.S.C. § 7502(b). In turn, the regulations corresponding to this

portion of the statute state that: 

If the postmark on the envelope is made other than by the U.S. Postal Service – (i)

the postmark so made must bear a legible date on or before the last date, or the

last day of the period, prescribed for filing the document or making the payment,

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11 The United States avers that it has no record of ever receiving the letters.

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and (ii) the document or payment must be received by the agency, officer or office

with which it is required to be filed not later than the time when a document or

payment contained in an envelope that is properly addressed, mailed, and sent by

the same class of mail would ordinarily be received if it were postmarked at the

same point of origin by the U.S. Postal Service on the last date, or the last day of

the period, prescribed for filing the document or making the payment.

26 C.F.R. § 301.7502-1(c)(3)(B) (emphasis added). The explicit language of this regulation

suggests that unless a document is stamped with a United States Postal Service postmark, the

postmark date will not be determinative of the document’s receipt. There are only two apparent

exceptions to the requirement of actual delivery set forth in Section 7502(b). The first exception

is the one provided for in Section 7502(a), as stated above, and the second, set forth in Section

7502(c), allows for documents sent by registered mail to be considered “prima facie evidence

that the . . . claim . . . was delivered to the agency, officer, or office to which addressed.” 26

U.S.C. § 7502(c).

The present case is unique in that although the Plaintiffs assert that the May 8 and June

13 Letters were mailed and postmarked prior to the June 25, 2003 deadline, there is no evidence

that the documents were actually received by the Internal Revenue Service.11 Before the

enactment of Section 7502, the general rule respecting the filing of documents with the Internal

Revenue Service was that no filing was complete until the document was delivered and received. 

Bazargani v. United States, No. 91-4709, 1992 WL 189399 at * 2 (E.D. Pa. Jul. 29, 1992) (citing

United States v. Lombardo, 241 U.S. 73, 76 (1916)). Section 7502 was enacted to alleviate the

harshness of this “physical delivery” rule. Id. Thus, the Plaintiffs’ argument that Section 7502,

which provides opportunity for exception to the physical delivery rule, does not support the

Case 2:04-cv-04857-GEKP Document 27 Filed 07/17/06 Page 15 of 19
12 There is disagreement on this issue among other circuit courts of appeal. Courts

within the Eighth, Ninth and Tenth Circuits have concluded that notwithstanding Section 7502,

extrinsic evidence may be considered to determine whether a taxpayer mailed his return or claim. 

See Sorrentino v. I.R.S., 383 F.3d 1187, 1193 (10th Cir. 2004) (noting that the statutory language

of Section 7502 does not explicitly abolish the mailbox rule and, therefore, Congress did not

intend for such); Anderson v. United States, 966 F.2d 487, 490-91 (9th Cir. 1992) (noting that

Section 7502(c) is not the only exception to the statutory mailbox rule and allowing testimony

that plaintiff saw postal clerk stamp the document with the appropriate postmark date); Estate of

Wood v. Comm’r of Int’l Rev., 909 F.2d 1155, 1161 (8th Cir. 1990) (looking to legislative history

of Section 7502, concluding no intent to abrogate mailbox rule and affirming allowance of

testimony by post office employee that document was postmarked within the deadline despite

plaintiff’s inability to meet requirements of Section 7502). Conversely, the Courts of Appeal for

the Second and Sixth Circuits have adopted the position that Section 7502 provides the only

explicit exceptions to the actual delivery rule. See Miller v. United States, 784 F.2d 728, 731 (6th

Cir. 1986); Deutsch v. Comm’r of Int’l Rev., 599 F.2d 44, 46 (2d Cir. 1979) (citing to Boccuto

for proposition that extrinsic evidence is not admissible after enactment of Section 7502). 

13 The Court notes that in a somewhat related case, the court has concluded that taxpayers

were entitled to be given the opportunity to prove what an illegible date on a United States

postmark actually was, and that the exceptions to the rule requiring actual delivery to the Internal

Revenue Service are explicitly set forth in Section 7502 and a plaintiff must be bound by the

actual delivery rule unless he or she fits within one of these exceptions. See Skolski v. Comm’r

of Int’l Rev. Svc., 351 F.2d 485, 487 (3d Cir. 1965). However, Skolski is not determinative here. 

16

Plaintiffs.

2. Common Law Mailbox Rule and Extrinsic Evidence

The common law mailbox rule provides that a letter that is shown to be properly mailed is

presumed to be received by the addressee. United States v. Lansdowne Swim Club, 713 F. Supp.

785, 819 (E.D. Pa. 1998) (considering civil rights claim). While Plaintiffs argue that this rule

was not displaced by Section 7502, the Court disagrees.

The Court of Appeals for the Third Circuit has not directly stated that the common law

mailbox rule was displaced by Section 7502.12 However, in several cases that have been decided

since its enactment, courts within the Third Circuit have interpreted Section 7502 in a manner

suggesting such displacement.13 For example, in Boccuto v. Comm’r of Int’l Rev., 277 F.2d 549,

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Although the Plaintiffs might assert that they could present evidence that Mr. Dugan did receive

the letters, there is no proof of receipt of either of the letters and no postmarked envelope to

examine. Absent this information, which is required under the exceptions set forth in Section

7502, such evidence would not be determinative.

14 In the case before it, the Boccuto court concluded that because the regulations

implementing Section 7502 had not been published at the time of the facts relevant to the case,

the section was not applicable. Boccuto, 277 F.2d at 552-53.

17

553 (3d Cir. 1960), the court stated in dicta14 that “Congress has explicitly set forth the allowable

exceptions to the rule of actual receipt by the Tax Court within the specified time,” and noted

that “[u]nless a taxpayer can fit himself within one of the statutory exceptions, he is bound by

this rule.” Subsequently, in Bazargani v. United States, No. 91-4709, 1992 WL 189399 at * 2

(E.D. Pa. Jul. 29, 1992), although the plaintiff asserted that she mailed her tax return in time for

it to be delivered on or before the statutory deadline of April 15, 1983, the Internal Revenue

Service asserted that it never received the return. The plaintiff submitted a copy of the return,

postmarked June 13, 1983, and was thereafter charged a penalty for late filing. Id. 

Rejecting the plaintiff’s argument that the common law mailbox rule applied to deem her

original filing as timely, the Bazargani court interpreted the Boccuto dicta to mean that the

common law mailbox rule was displaced by Section 7502 and that, absent proof of having mailed

the return by registered or certified mail, the court could only conclude that the return had been

submitted on the date of the postmark reflected on the copy received by the Internal Revenue

Service, which was June 13, 1983. Similarly, in Poindexter v. Internal Revenue Service, No. 96-

4404, 1998 WL 424462 at * 3 (E.D. Pa. Apr. 29, 1997), the court concluded that the only

exceptions to the general physical delivery rule are those stated in Section 7502, and that absent

proof of a postmark, registration or certification, the date that the Internal Revenue Service

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18

received a claim is the date that the claim is deemed to have been filed. 

Viewing the present facts through the lens of this reasoning, the Court is left with little

other choice than to conclude that absent proof of having sent the May 8 or June 13 Letters by

registered or certified mail, the physical delivery rule applies. Here, the Plaintiffs did not submit

the letters by either registered or certified mail, and there is no evidence that either of the letters

was received at all by the Internal Revenue Service. Even assuming as true the Plaintiffs’

assertion that they spoke with Mr. Dugan both before and after mailing the letters, this evidence

is not sufficient to comply with the requirements of the statutory exception to the physical

delivery rule. Because there remain no disputed questions of material fact from which a

reasonable person could conclude that the May 8 and June 13 letters were not mailed pursuant to

the exceptions set forth in Section 7502, summary judgment will entered in favor of the United

States.

CONCLUSION

 For the reasons discussed above, the Plaintiffs’ Motion for Summary Judgment will be

denied and the United States’ Motion for Summary Judgment will be granted. An appropriate

Order follows.

S/Gene E.K. Pratter

Gene E.K. Pratter

United States District Judge

July 17, 2006

Case 2:04-cv-04857-GEKP Document 27 Filed 07/17/06 Page 18 of 19
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

PHILADELPHIA MARINE : CIVIL ACTION

TRADE ASSOCIATION/ :

INTERNATIONAL :

LONGSHOREMEN’S :

ASSOCIATION VACATION :

FUND, et al., O’NEILL :

CONSULTING CORPORATION, :

Plaintiffs, :

:

vs. :

:

UNITED STATES, :

Defendant. : No. 04-4857

O R D E R

AND NOW, this 17th day of July, 2006, upon consideration of the Motion for Summary

Judgment of the United States (Docket No. 15) and the Motion for Summary Judgment of the

Plaintiffs Philadelphia Marine Trade Association and O’Neill Consulting Corporation (Docket

No. 16), the responses thereto (Docket Nos. 17, 18) and after hearing oral argument on the

motions, it is ORDERED that the Motion for Summary Judgment of the United States is

GRANTED and the Motion for Summary Judgment of the Plaintiffs is DENIED. It is

FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of defendant

United States of America and shall mark this case as closed.

BY THE COURT:

S/Gene E.K. Pratter

GENE E.K. PRATTER

United States District Judge

Case 2:04-cv-04857-GEKP Document 27 Filed 07/17/06 Page 19 of 19