T.C. Memo. 2008-231

UNITED STATES TAX COURT

HENDY J. APPLETON, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 7954-08L. Filed October 20, 2008.

R mailed a notice of determination to petitioner

on Friday, Feb. 29, 2008. Thirty-three days later, on

Wednesday, Apr. 2, 2008, P mailed a petition to the

Court seeking to commence a levy action. Thereafter, R

filed a motion to dismiss for lack of jurisdiction.

Held: The petition was not timely filed.

Held, further, Tax Court Rule 25(a)(2)(C) does not

support a contrary conclusion.

Brian G. Isaacson, for petitioner.

Shirley M. Francis, for respondent.
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1 All section references are to the Internal Revenue Code

of 1986, as amended. All Rule references are to the Tax Court

Rules of Practice and Procedure.

MEMORANDUM OPINION

ARMEN, Special Trial Judge: This case is before the Court

on respondent’s Motion To Dismiss For Lack Of Jurisdiction, filed

May 23, 2008. In his motion, respondent contends that this case

should be dismissed for lack of jurisdiction on the ground that

the petition was not filed within the time prescribed by section

6330(d) or section 7502.1 On June 23, 2008, petitioner filed a

Notice Of Objection to respondent’s motion. Thereafter, on

August 25, 2008, respondent filed a Response to petitioner’s

objection.

At the time that the petition was filed, petitioner resided

in the State of Oregon.

Background

The facts necessary to a resolution of respondent’s motion

are as follows:

On January 4, 2007, respondent sent petitioner a Final

Notice Of Intent To Levy And Notice Of Your Right To A Hearing in

respect of petitioner’s outstanding liability for 2000. See sec.

6330(a). Petitioner timely requested an administrative hearing,

see sec. 6330(b), by filing with respondent a Form 12153, Request

for a Collection Due Process or Equivalent Hearing. Ultimately,
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2 The record suggests that a copy of the notice of

determination was also mailed on Feb. 29, 2008, to petitioner’s

authorized representative (petitioner’s counsel of record in the

instant case).

respondent’s Appeals Office in Seattle, Washington, sent

petitioner a Notice Of Determination Concerning Collection

Action(s) Under Section 6320 and/or 6330 (notice of

determination). See sec. 6330(c)(3). The notice of

determination was both dated and mailed February 29, 2008, which

date was a Friday, and it was sent to petitioner by certified

mail addressed to her at her last known address.2 See Weber v.

Commissioner, 122 T.C. 258, 261-262 (2004) (notice of

determination is sufficient if sent by certified mail to taxpayer

at taxpayer’s last known address). The notice of determination

sustained the proposed levy.

Petitioner received the notice of determination. 

Thereafter, on Thursday, April 3, 2008, petitioner, acting

through counsel, filed a petition with this Court seeking

judicial review of respondent’s proposed collection action. The

petition arrived at the Court by private delivery service (PDS)

pursuant to priority overnight service. See sec. 7502(f). The

airbill indicates that the petition had been given to the PDS on

Wednesday, April 2, 2008.
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Petitioner’s mailing and legal address, as alleged in

paragraph 2 of the petition, is the same address as the address

to which the notice of determination was mailed. 

Discussion

A. Jurisdiction: General Principles

The Tax Court is a court of limited jurisdiction. See sec.

7442. Accordingly, we may exercise jurisdiction only to the

extent expressly authorized by statute. Breman v. Commissioner,

66 T.C. 61, 66 (1976).

In a collection review action involving a proposed levy,

this Court’s jurisdiction under section 6330 depends on the

issuance of a notice of determination by respondent’s Office of

Appeals and the filing by the taxpayer of a timely petition. 

Sec. 6330(d)(1); Weber v. Commissioner, supra at 261; Sarrell v.

Commissioner, 117 T.C. 122, 125 (2001); Moorhous v. Commissioner,

116 T.C. 263, 269 (2001); Offiler v. Commissioner, 114 T.C. 492,

498 (2000); see Rule 330(b). See generally Rules 330-334.

If respondent’s Office of Appeals issues a valid notice of

determination to a taxpayer but the taxpayer fails to file a

timely petition, then the Court will (and must) dismiss the

action for lack of jurisdiction. Weber v. Commissioner, supra at

262.
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3 March 30, 2008, was the 30th day after the mailing of the

notice of determination; however, that date was a Sunday. 

Accordingly, in respondent’s view, the petition was not due until

the following business day. See sec. 7503 (regarding the time

for performance of acts where the last day otherwise falls on a

Saturday, Sunday, or legal holiday).

B. Respondent’s Position

Respondent asserts (and petitioner does not dispute) that

respondent’s Seattle Appeals Office sent petitioner the notice of

determination by certified mail on Friday, February 29, 2008, and

that the notice of determination was addressed to petitioner at

her last known address. Respondent then points to section

6330(d)(1), which permits a taxpayer to appeal respondent’s

determination to this Court “within 30 days” of such

determination. Respondent contends that because the notice of

determination was mailed on February 29, 2008, petitioner was

obliged to file her petition with the Court no later than Monday,

March 31, 2008.3 Because the petition was not filed with the

Court until Thursday, April 3, 2008, and further because the

petition was not given to the PDS for mailing to the Court until

Wednesday, April 2, 2008, see sec. 7502(f), respondent concludes

that the instant case must be dismissed for lack of jurisdiction.

C. Petitioner’s Position

Petitioner agrees that an untimely-filed petition must be

dismissed for lack of jurisdiction. However, relying generally

on Rule 25(a) and specifically on Rule 25(a)(2)(C), petitioner
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contends that the petition was timely filed. Thus, in her Notice

of Objection, petitioner argues as follows:

Tax Court Rule 25(a)(1) Computation of Time

states, “If service is made by mail, then a period of

time computed with respect to the service shall begin

on the day after the date of mailing.” In this case,

the Notice of Deficiency [sic] was mailed on Friday,

February 29, 2008, the period of time would not begin

until Saturday, March 1, 2008.

Tax Court Rule 25(a)(2)(C) states, “if any act is

required to be taken or completed no later than (or at

least) a specified number of days before a date

certain, then the earliest day of the period so

specified shall not be included [if] it is a Saturday,

Sunday, or a legal holiday in the District of Columbia,

and the earliest such day shall be the next preceding

day which is not a Saturday, Sunday, or such a legal

holiday.” Therefore, Saturday, March 1, 2008 and

Sunday, March 2, 2008 are not included in the time

computation. Therefore, the earliest day from which

the time period begins is Monday, March 3, 2008. 

Petitioner then observes that 30 days from March 3, 2008, is

April 2, 2008. Ergo, petitioner concludes, the petition was

timely mailed and therefore timely filed. See sec. 7502(f). 

D. Analysis

The parties agree (as do we) that the section that defines

our jurisdiction in a case such as the instant one is section

6330(d)(1). Accordingly, we begin with that section. Section

6330(d)(1) provides as follows:

SEC. 6330(d). Proceeding After Hearing.--

 (1) Judicial Review Of Determination.--The

person may, within 30 days of a determination

under this section, appeal such determination to

the Tax Court (and the Tax Court shall have

jurisdiction with respect to such matter).
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In the present case, the “person” in section 6330(d)(1) is

petitioner and the “determination” is the notice of determination

issued by respondent’s Seattle Appeals Office. That

determination was made on Friday, February 29, 2008, the date

stamped on the notice of determination and the date on which it

was sent by certified mail to petitioner. Thus, petitioner was

obliged to “appeal”, i.e., file a petition with this Court,

“within 30 days” of Friday, February 29, 2008. See Rule 331(a)

(providing in relevant part that a levy action under section

6330(d) “shall be commenced by filing a petition with the

Court”). The last date “within 30 days” of Friday, February 29,

2008, was March 30, 2008, but because that date was a Sunday, the

last day to file a petition was instead Monday, March 31, 2008. 

See sec. 7503. Therefore, because the petition was neither filed

nor mailed “within 30 days” of the determination, respondent’s

motion must be granted and this case must be dismissed for lack

of jurisdiction.

Petitioner incorrectly interprets certain provisions of Rule

25. A proper application of those provisions yields the same

result as that reached in the preceding paragraph, i.e., that

respondent’s motion must be granted and this case must be

dismissed for lack of jurisdiction. 
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Rule 25 is concerned with the computation of time. Rule

25(a)(1) sets forth the general rule, and in its entirety

provides as follows:

In computing any period of time prescribed or allowed

by these Rules or by direction of the Court or by any

applicable statute which does not provide otherwise,

the day of the act, event, or default from which a

designated period of time begins to run shall not be

included, and (except as provided in subparagraph (2))

the last day of the period so computed shall be

included. If service is made by mail, then a period of

time computed with respect to the service shall begin

on the day after the date of mailing. [Emphasis

added.]

As applicable to the present case, Rule 25(a)(1) would

dictate that the “within 30 days” period prescribed by the

applicable statute (i.e., section 6330(d)(1)) began to run on

Saturday, March 1, 2008, i.e., the day after the mailing of

respondent’s notice of determination on February 29, 2008. See

Appiah v. Commissioner, T.C. Memo. 1996-170.

Rule 25(a)(1) includes an exception, so we must necessarily

consult Rule 25(a)(2), which deals with weekends (i.e., Saturdays

and Sundays) and holidays. In its entirety, Rule 25(a)(2)

provides as follows:

Saturdays, Sundays, and all legal holidays shall be

counted, except that, (A) if the period prescribed or

allowed is less than 7 days, then intermediate

Saturdays, Sundays, and legal holidays in the District

of Columbia shall be excluded in the computation; (B)

if the last day of the period so computed is a

Saturday, Sunday, or a legal holiday in the District of

Columbia, then that day shall not be included and the

period shall run until the end of the next day which is

not a Saturday, Sunday, or such a legal holiday; and

(C) if any act is required to be taken or completed no
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later than (or at least) a specified number of days

before a date certain, then the earliest day of the

period so specified shall not be included if it is a

Saturday, Sunday, or a legal holiday in the District of

Columbia, and the earliest such day shall be the next

preceding day which is not a Saturday, Sunday, or such

a legal holiday. When such a legal holiday falls on a

Sunday, the next day shall be considered a holiday;

and, when such a legal holiday falls on a Saturday, the

preceding day shall be considered a holiday. [Emphasis

added.] 

Thus, Rule 25(a)(2) begins with the general rule that Saturdays

and Sundays, as well as legal holidays, are counted in computing

time. See Appiah v. Commissioner, supra. However, Rule 25(a)(2)

sets forth three exceptions to this general rule. 

The first exception, embodied in Rule 25(a)(2)(A), is

irrelevant to the present case because the applicable statute,

i.e., section 6330(d)(1), specifies a 30-day period of time to

file a petition. The exception applies only if the period

prescribed or allowed is less than 7 days. 

The second exception, embodied in Rule 25(a)(2)(B), is

relevant, but essentially does nothing (in the context of the

present case) other than echo the provisions of section 7503,

which we have already mentioned. See Bass v. Commissioner, T.C.

Memo. 1991-213, affd. without published opinion 976 F.2d 736 (9th

Cir. 1992).

The third exception, embodied in Rule 25(a)(2)(C), is the

exception that petitioner invokes and upon which her objection to

respondent’s motion solely rests.
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The rationale for Rule 25(a)(2)(C) appears in the Court’s

Rules Committee Note to the amendment of Rule 25(a) in 1989. 93

T.C. 821, 861. The two pertinent paragraphs of that Note provide

as follows: 

Paragraph (a) of Rule 25 is amended in order to

clarify the computation of time when the relevant

period extends back in time from a given point, rather

than forward, and the earliest day of that period is a

Saturday, Sunday, or legal holiday in the District of

Columbia. Thus, for example, Rule 70(a)(2) generally

requires that discovery shall be completed “no later

than” 45 days before the date set for call of the case

from a trial calendar. Similarly, Rule 143(f)

generally requires that an expert witness report be

furnished to the other party and submitted to the 

Court “not later than” 30 days before the call of the

trial calendar on which the case appears. So, if a

case had been calendared for trial at a session

beginning on Monday, October 31, 1988, then Rule 143(f)

requires that any expert witness report should have

been served and submitted “not later than” October 1,

1988. However, since that date is a Saturday, Rule

25(a) requires that the report should have been served

and submitted “not later than” the next preceding

business day, or Friday, September 30, 1988. A report

served and submitted on Monday, October 3, 1988, would

therefore have been untimely. [Emphasis added.]

* * * * * * *

Finally, paragraph (a) is amended by restructuring

it into three subparagraphs in order to more clearly

reflect its content.

Thus, it is readily apparent that Rule 25(a)(2)(C)

constitutes a look-back provision that is applicable only when an

act or event must be completed a certain number of days before a

date certain. Accordingly, Rule 25(a)(2)(C) does not apply to

the present case because the statutory period for filing a
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petition begins with an Appeals Office determination and extends

forward in time, not back in time. 

E. Conclusion

Section 6330(d)(1) requires that we compute the 30-day

filing period starting with the February 29, 2008 determination

and that we necessarily compute that period forward in time, not

back in time. Rule 25(a)(1) specifies that the first day in the

30-day filing period was Saturday, March 1, 2008, i.e., the day

after the mailing of the notice of determination on February 29,

2008. Rule 25(a)(2) provides that Saturdays and Sundays shall be

included in computing time; however, the exception embodied in

Rule 25(a)(2)(B), echoing the provisions of section 7503, makes

clear that the final Sunday, being the 30th and otherwise last

day, should not be counted and that Monday, March 31, 2008,

should instead be the last day of the statutory filing period. 

As the petition was both filed and mailed after the expiration of

the statutory filing period, the petition was not timely filed

and this case must be dismissed for lack of jurisdiction. Weber

v. Commissioner, 122 T.C. at 262.
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To give effect to the foregoing, 

An Order Of Dismissal For Lack Of

Jurisdiction will be entered granting

respondent’s motion and dismissing this

case on the ground that the petition was

not timely filed.