SUSAN ZIMMERMAN, Petitioner - Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee. ═ DONALD ZIMMERMAN, Petitioner - Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee. ══════════, UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT, No. ═ 02-9004 (Tax Court No. 8127-01); No. ═ 02-9005 ═ (Tax Court No. 8124-01), December 9, 2002

SUSAN ZIMMERMAN, Petitioner - Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee. ═ DONALD ZIMMERMAN, Petitioner - Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee. ══════════

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

No. ═ 02-9004 (Tax Court No. 8127-01); No. ═ 02-9005 ═ (Tax Court No. 8124-01)

December 9, 2002

ORDER AND JUDGMENT ⁽¹⁾

******************

⁽¹⁾ This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. ═ The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

******************

Before SEYMOUR, EBEL, and O'BRIEN, Circuit Judges.

════════

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of these appeals. ═ See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). ═ The cases are therefore ordered submitted without oral argument.

We have consolidated these appeals for purposes of disposition. ═ In No. 02-9004, Susan Zimmerman petitions for review of decisions of the Tax Court granting the respondent's motion to dismiss her petition and denying her motion for reconsideration/motion for new trial. ═ Similarly, in No. 02-9005, Donald Zimmerman petitions for review of the Tax Court's decisions dismissing his petition and denying his motion for reconsideration/motion for new trial. ═ We dismiss Donald Zimmerman's petition for review for lack of jurisdiction. ═ We affirm the Tax Court's decisions concerning Susan Zimmerman's petition. ═

1. ═ Timeliness of Donald Zimmerman's petition for review

At the outset, we must address whether we have jurisdiction over Donald Zimmerman's petition for review. ═ Under Fed. R. App. P. 13(a)(1), a petitioner must file his petition for review within ninety days of the entry of the Tax Court's decision. ═ If the petitioner makes a timely motion to vacate or revise the Tax Court's decision, however, the time to file a notice of appeal runs from the entry of the order disposing of that motion. ═ Id . 13(a)(2). ══

The Tax Court entered a final order in Donald Zimmerman's case on October 5, 2001. ═ He filed a timely motion for reconsideration on December 4, 2001. ⁽¹⁾ The Tax Court denied his motion on December 7, 2001. Mr. Zimmerman's former counsel mailed a notice of appeal to the Tax Court 125 days later, on April 11, 2002. ══

******************

⁽¹⁾ The Tax Court construed the motion to reconsider as a motion to vacate. The motion was postmarked October 29, 2001 and hence was timely. ═ The Tax Court assigned the delay between the postmark and filing dates to the closure of a Washington, D.C., postal service facility due to presence of anthrax bacterium. ═

******************

This April 11, 2002 notice of appeal was untimely. ═ Mr. Zimmerman's former counsel, however, also sent a letter to the Tax Court stating that she had mailed an original notice of appeal to the Tax Court on February 26, 2002, eighty-one days after the motion for reconsideration was denied. ═ Her letter claimed that the original notice of appeal "evidently was destroyed in the mail" and that "[w]e received in our office a mangled representation of we think the appeal." [sic] ═ R. doc. 14, letter of April 11, 2002. ═ Counsel's letter contained a photocopy of the original notice of appeal, but no registered or certified mail receipt and no evidence of the original envelope, its postmark date or its "mangled" contents.

A notice of appeal is deemed delivered on the date of mailing, as established by a United States postmark. ═ 26 U.S.C. ╖ 7502(a), (b); 26 C.F.R.  301.7502-1(b)(iii). ═ Use of registered mail or certified mail provides prima facie evidence that the notice of appeal was delivered; the date of registration or the date of the U.S. postmark on the certified mail receipt is treated as the postmark date. ═ 26 U.S.C. ╖ 7502(C)(1); 26 C.F.R. ╖ 301.7502-1(c)(2). ═ Mr. Zimmerman has presented no evidence that the original notice of appeal was postmarked within the prescribed time period. ═ We have only counsel's unsworn letter and a purported copy of the original notice of appeal to evidence the first attempt at filing a notice of appeal. ═ These items are insufficient as a matter of law to establish timely delivery and filing. ═ Therefore, we dismiss Mr. Zimmerman's petition for review as untimely. ═

2. ═ Susan Zimmerman's petition

The Tax Court dismissed Susan Zimmerman's petition for failure to state a claim upon which relief could be granted. ═ It further denied her motion to reconsider/motion for new trial (which it termed a motion to vacate), because the motion did nothing but repeat arguments raised previously. ═ We review the dismissal of Ms. Zimmerman's Tax Court petition for failure to state a claim de novo. ═ Fox v. Comm'r , 969 F.2d 951, 952 (10th Cir. 1992). ═ The Tax Court's denial of her motion to vacate is reviewed for an abuse of discretion. Drobny v. Comm'r , 113 F.3d 670, 676 (7th Cir. 1997).

Having reviewed the briefs, the record and the applicable law in light of the above-referenced standards, we AFFIRM the challenged Tax Court decisions in No. 02-9004, for substantially the same reasons stated in the Tax Court's orders of October 5, 2001 and December 7, 2001. ═ We DISMISS No. 02-9005, for lack of appellate jurisdiction. ═ All pending motions are DENIED. ═

Entered for the Court

David M. Ebel

Circuit Judge

Комментарии

Вы также можете   зарегистрироваться  и/или  авторизоваться  

Имя *

Комментарий *    

Добавить комментарий