Opinion · Court of Appeals for the Ninth Circuit
Di Prospero v. Commissioner of Internal Revenue
176 F.2d 76
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1949-06-22
- Topic
- bankruptcy
How later courts describe this case
- “There is, at this late date, little doubt that the 90 day requirement is jurisdictional”
Citator
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DI PROSPERO v. COMMISSIONER OF INTERNAL REVENUE,176 F.2d 76(9th Cir. 1949)
DI PROSPERO v. COMMISSIONER OF INTERNAL REVENUE.
No. 12098.
United States Court of Appeals, Ninth Circuit.
June 22, 1949.
Page 77
Petition by Felice Di Prospero against Commissioner of Internal Revenue to review decision of the Tax Court of the United States dismissing for lack of jurisdiction a petition for redetermination of tax deficiency for years 1942 to 1945 as found by Commissioner.
Decision affirmed.
Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, Helen Goodner, Virginia H. Adams and Sumner Redstone, Sp. Assts. to Atty Gen., for respondent.
Before STEPHENS, HEALY and BONE, Circuit Judges.
There is, at this late date, little doubt that the 90 day requirement is jurisdictional.326 U.S.C.A. § 11114authorizesPage 78the Tax Court to prescribe rules for the conduct of its own practice and procedure. These rules have the force and effect of law.5Thus it was necessary that the petition be filed before the closing of business, i.e., 5:15 p.m., on the 90th day. This was not done.
The decision of the Tax Court is affirmed.
Judge STEPHENS did not participate in the decision.Page 122
- 26 U.S.C.A. § 272(a)(1) provides: "If in the case of any taxpayer, the Commissioner determines that there is a deficiency in respect of the tax imposed by this chapter, the Commissioner is authorized to send notice of such deficiency to the taxpayer by registered mail. Within ninety days after such notice is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the ninetieth day) the taxpayer may file a petition with The Tax Court of the United States for a redetermination of the deficiency. * * *" ↩
- Pursuant to the authority granted by 26 U.S.C.A. § 1111, The Tax Court enacted the following Rules of Practice: "Rule 1 — Business Hours. The office of the clerk of the Court at Washington, D.C., shall be open during business hours on all days, except Saturdays, Sundays, and legal holidays, for the purpose of receiving petitions, pleadings, motions, and the like. `Business hours' are from 8:45 o'clock a.m. to 5:15 o'clock p.m."
"Rule 9 — Filing. Any document to be filed with the Court, must be filed in the office of the clerk of the Court in Washington, D.C., during business hours (see Rule 1); * * *." ↩ - Barron Estate Co. v. C.I.R., 9 Cir., 1937,93 F.2d 751, 753; Lewis-Hall Iron Works v. Blair, C.I.R., 1928, 57 App.D.C. 364,23 F.2d 972, 974: "For the requirement * * * is statutory and jurisdictional and is not merely procedural." Certiorari denied277 U.S. 592, 48 S.Ct. 529, 72 L.Ed. 1004; Goldsmith v. Board of Tax Appeals, 1925, 55 App. D.C. 229,4 F.2d 422. ↩
- "The proceedings of the Tax Court and its divisions shall be conducted in accordance with such rules of practice and procedure (other than rules of evidence) as the Tax Court may prescribe and in accordance with the rules of evidence applicable in the courts of the District of Columbia in the type of proceedings which prior to September 16, 1938, were within the jurisdiction of the courts of equity of said District." See, also, supra, Note 2. ↩
- Barron Estate Co. v. C.I.R., supra. note 3 at page 753 of 93 F.2d; Lewis-Hall Iron Works v. Blair, C.I.R., supra, note 3; Poynor v. C.I.R., 5 Cir., 1936,81 F.2d 521, 522, and cases cited; Stebbins' Estate et al. v. Helvering, 1941, 74 App. D.C. 21,121 F.2d 892, 893-894. ↩