FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ORGANIC CANNABIS FOUNDATION, No. 17-72874 LLC, DBA Organicann Health Center, Tax Ct. No. Petitioner-Appellant, 10593-15 v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. NORTHERN CALIFORNIA SMALL No. 17-72877 BUSINESS ASSISTANTS, INC., Petitioner-Appellant, Tax Ct. No. 10594-15 v. COMMISSIONER OF INTERNAL OPINION REVENUE, Respondent-Appellee. Appeals from Decisions of the United States Tax Court Argued and Submitted October 22, 2019 San Francisco, California 2 ORGANIC CANNABIS FOUND. V. CIR Filed June 18, 2020 Before: Jay S. Bybee, N. Randy Smith, and Daniel P. Collins, Circuit Judges. Opinion by Judge Collins SUMMARY * Tax The panel affirmed the Tax Court’s dismissal, for lack of jurisdiction, of untimely petitions for redetermination of federal income tax deficiencies. Taxpayers operate marijuana dispensaries. In response to notices of deficiencies from the Internal Revenue Service, taxpayers sought to file their petitions for redetermination by April 22, 2015, the last day to file such petitions under I.R.C. § 6213(a). Taxpayers’ attorney used FedEx to send the petitions for filing in the Tax Court. The petitions were delivered to the Tax Court on the morning of April 23, 2015. The panel first rejected the contention that the petitions were timely because the Tax Court was inaccessible on the filing deadline. The panel held that, for non-electronic filings, a clerk’s office is “inaccessible” on the “last day” of a filing period only if the office cannot practicably be accessed for delivery of documents during a sufficient period of time up to and including the point at which “the clerk’s * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. ORGANIC CANNABIS FOUND. V. CIR 3 office is scheduled to close.” The panel explained that here, taxpayers presented no evidence to show that the Tax Court Clerk’s Office could not be accessed during the substantial remaining portion of the day after FedEx unsuccessfully attempted delivery of the petitions earlier in the day on April 22, 2015. The panel next held that the petitions could not be deemed timely under the mailbox rule set forth in I.R.C. § 7502, because the particular FedEx service used here was not on the IRS’s formal list of designated delivery services to which the mailbox rule applies. The panel also held that because § 6213(a)’s time limits are jurisdictional, equitable exceptions such as equitable tolling and waiver do not apply. Finally, the panel rejected Organic Cannabis Foundation’s contention that its notice of deficiency was invalid because it was improperly addressed and that the error was not harmless, because the panel disagreed with the premise that the notice was misaddressed. COUNSEL Matthew D. Carlson (argued) and Douglas L. Youmans, Wagner Kirkman Blaine Klomparens & Youmans, Mather, California, for Petitioners-Appellants. Paul Andrew Allulis (argued), Francesca Ugolini, and Patrick J. Urda, Attorneys; Richard E. Zuckerman, Principal Deputy Assistant Attorney General; Tax Division, United States Department of Justice, Washington, D.C.; for Respondent-Appellee. 4 ORGANIC CANNABIS FOUND. V. ...
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