Most likely, everyone has encountered a situation where a phone, computer, website, or app did not function as expected or required. A similar circumstance arose for the taxpayer in the case of Sanders v. Commissioner, 160 TC No. 16.[1] However, Mr. Sanders discovered that the Tax Court did not recognize his technological difficulties as a valid reason to accept his Tax Court petition, which was ultimately filed electronically just eleven seconds past midnight.

Mr. Sanders’ Struggles

Mr. Sanders had a dispute with the IRS, prompting the agency to issue a notice of deficiency. Consequently, he decided to initiate a petition with the Tax Court:

The Commissioner mailed a notice of deficiency to Mr. Sanders on September 8, 2022. Notwithstanding the actual mailing date, the notice was dated September 12, 2022, and stated that the last day to file a petition with this Court was December 12, 2022.[2]

At this juncture, Mr. Sanders made what turned out to be a consequential decision to attempt to file his petition late in the evening on the final due date using his smartphone.

Mr. Sanders prepared to file his Petition electronically. Before December 12, 2022, Mr. Sanders set up an account to electronically file a petition through DAWSON, the Court’s electronic filing system. On the evening of December 12, 2022, Mr. Sanders began the process of electronically filing his Petition. At 9:59 p.m. EDT, he downloaded the necessary PDF forms to his Android mobile phone, but he was unable to fill out the forms on his phone.

Shortly after 11 p.m. on December 12, 2022, Mr. Sanders tried to file his Petition from his phone. At 23:03:07.442 (11:03 p.m.), he logged into DAWSON. At 23:42:53.728 (11:42 p.m.), he logged in again. Between 11:03 p.m., when Mr. Sanders first logged in, and 11:44 p.m., when he was logged out from his Android device for the rest of the evening, he states that he attempted to upload documents, but DAWSON “would not even allow [him] to click the button to upload the documents from [his] android device even after several times of login in and logging out.”[3]

As the deadline to submit his petition loomed, Mr. Sanders pivoted to using a computer. Despite ultimately succeeding, this alternative approach was not without its share of complications.

After trying to file the Petition from his phone, Mr. Sanders was “finally able to switch” to his Windows computer shortly before midnight. He was slowed down by “having to send the filled out forms” from his phone to his email to be downloaded to his computer. At 23:56:15.888 (11:56 p.m.), Mr. Sanders unsuccessfully attempted to log in to DAWSON on his computer. However, within one second, another Windows user successfully logged into DAWSON. Likewise at 23:57:21.379 (11:57 p.m.), Mr. Sanders successfully logged in as well. After he logged in and started the filing process, Mr. Sanders was slowed down by having “to do other steps” before he could actually file his Petition. Additionally, he had to refer to the instructions several times. Throughout this process and at all relevant times, DAWSON remained fully operational.[4]

Regrettably, the submission process did not finalize until just after midnight, causing the system to assign a date received that fell one day after the final permissible filing date for his petition:

While residing in North Carolina, Mr. Sanders filed the Petition from his computer after midnight on December 13, 2022. At 00:00:09.493, he began the upload of the Petition, and at 00:00:11.693 (i.e., 11 seconds after midnight), it was filed. At the time of filing, DAWSON automatically applied a cover sheet to the Petition that states that the Petition was electronically filed and received at “12/13/22 12:00 am.”[5]

As expected, the IRS filed a Motion to Dismiss for lack of jurisdiction, arguing that Mr. Sanders' petition was not filed within the required timeframe. Mr. Sanders contended that his petition should not be considered as having been filed on December 13.

Mr. Sanders filed an Objection to the Commissioner's Motion to Dismiss for Lack of Jurisdiction on February 21, 2023. He states as follows:

I object to this motion due to the fact that I logged in and uploaded documents on time. On December 12, 2022 I attempted several times to upload documents well before midnight. Finally I was able to get it uploaded and it literally did not finish the upload until exactly 12a.

I am sure it can be proven that the system had errors and that my upload was loading before cut off time.[6]

The Tax Court invited briefs from amici curiae and received one:

The Center for Taxpayer Rights, represented by the Tax Clinic at the Legal Services Center of Harvard Law School, submitted an amicus brief. The amicus principally offers two arguments. First, the amicus argues that Mr. Sanders’s Petition should be treated as filed at the time that he relinquished control of it. In making this argument, the amicus urges the Court to adopt a position akin to the timely mailing rule of section 7502. Although the amicus does not ask the Court to apply equitable tolling, it urges the Court to view the timeliness of an electronically filed petition “through the lens of equitable tolling.”[7]

General Rule – The Petition is Filed When Received

The opinion highlights the standard rules concerning the determination of when an electronically submitted petition is deemed filed:

A petition is ordinarily considered to have been filed when it is received by the Tax Court. See, e.g., Leventis v. Commissioner, 49 T.C. 353, 354 (1968). Under Rule 22(d), an electronically filed petition “will be considered timely filed if it is electronically filed at or before 11:59 p.m., eastern time, on the last day of the applicable period for filing.” Because electronic filing is not limited to the Court’s business hours, electronic filing systems may extend the number of hours available for filing, but not the number of days. State Bank of S. Utah v. Beal (In re Beal), No. 21-4124, 2022 WL 17661140, at *2 (10th Cir. Dec. 14, 2022), aff’g State Bank of S. Utah v. Beal, 633 B.R. 398 (D. Utah 2021), aff’g State Bank of S. Utah v. Beal (In re Beal), 616 B.R. 140 (Bankr. D. Utah 2020); Justice v. Town of Cicero, Ill., 682 F.3d 662, 664 (7th Cir. 2012); Nutt v. Commissioner, No. 15959-22, 160 T.C., slip op. at 4-5 (May 2, 2023); see Rule 22(a).[8]

The Tax Court promptly dismissed the notion that initiating (or attempting to initiate) the electronic filing process should be regarded as the timestamp of the filing:

Electronic filing is not accomplished merely by logging into the system or beginning the filing process. See In re Sands, 328 B.R. 614, 619 (Bankr. N.D.N.Y. 2005). In In re Sands, 328 B.R. at 617-18, the bankruptcy court addressed the issue of precisely when an electronic filing occurs. In that case, a debtor’s attorney began the process of electronically filing a petition shortly before it was due but did not upload the petition until minutes after the deadline. Id. at 615-16. The debtor contended that commencing the electronic filing process is equivalent to “physically handing” the clerk a petition. Id. at 616. The court disagreed, holding that an electronic petition is placed in the clerk’s possession, and is thus “filed,” when the “server receives the transmission.” Id. at 619. Likewise in Nutt, 160 T.C., slip op. at 3, we held that an electronically filed petition is filed with this Court at the time it is received.[9]

Therefore, by default, Mr. Sanders’ petition is considered as having been filed a day late.

Mr. Sanders’s Petition was not received within the time prescribed by section 6213(a). Notwithstanding that the notice of deficiency was mailed on September 8, 2022, Mr. Sanders’s last day to file his petition was Monday, December 12, 2022, because section 6213(a) allows him to rely on the last day for filing that was specified in the notice. Although he logged into DAWSON on December 12, 2022, Mr. Sanders did not file his Petition until the next day. He initiated the upload of the Petition 9 seconds after midnight on December 13, 2022, and his Petition was received and filed at 11 seconds after midnight. Because the Petition was not received by the Court until 11 seconds after midnight, it was not timely under section 6213(a).[10]

The Court Rejects the Equivalent of a Timely Mailing Rule in This Case

The opinion indicates that the Tax Court had recently dismissed an attempt to apply a timely mailing equivalent rule for the electronic submission of a petition:

The timely mailing rule is an exception to the general rule that documents are filed when received. Under that rule, a document that is properly mailed before the due date but received after the due date is deemed to have been filed on the date it was postmarked. I.R.C. §7502(a). The amicus urges that we find Mr. Sanders’s Petition timely because he relinquished control over his Petition before the filing deadline, a position that is analogous to the timely mailing rule of section 7502. But we have previously held that the timely mailing rule does not apply to an electronically filed petition. Nutt, 160 T.C., slip op. at 4.[11]

The opinion clarifies that while IRC §7502 does permit the IRS to issue regulations applying such rules to electronic submissions, the issued regulations do not extend to the electronic filing of Tax Court petitions.

Although section 7502 also contains a provision relating to electronic filing, that provision does not apply to the electronic filing of Tax Court petitions. When applicable, section 7502 relies on a postmark or similar recorded date as evidence of mailing. I.R.C. §7502(a)(1), (f)(2)(C). Section 7502(c)(2) authorizes the Secretary to provide regulations to apply this postmark rule to electronic filing. The Secretary adopted regulations providing that an electronically filed document is considered filed when the recipient “receives the transmission of a taxpayer’s electronically filed document on its host system.” Treas. Reg. § 301.7502-1(d)(3)(ii).

But the regulations are inapplicable to the filing of a Tax Court petition. The Secretary’s regulations require the use of an authorized electronic return transmitter. Id. subdiv. (i). None is involved in the filing of a Tax Court petition.[12]

However, the Court also notes that even if such rules were applied to this submission, Mr. Sanders' filing would still be deemed late.

Mr. Sanders’s Petition would be untimely even if we applied these regulations or the amicus’s “relinquished control” argument. The regulations would deem an electronically filed document to be filed when the electronic record shows it was received. The electronic record shows that Mr. Sanders’s Petition was received 11 seconds after midnight; thus it would be untimely under the regulations that apply in the case of an electronic return transmitter. And the Petition is untimely under the amicus’s relinquished control argument. Mr. Sanders did not relinquish control of his Petition until he initiated the upload 9 seconds after midnight. In short, the narrow exceptions that might deem a petition to be filed before the Court receives it are both legally and factually inapplicable to this case.[13]

Was the System Inaccessible and, If So, Does That Make His Filing Timely?\

However, recall that the taxpayer encountered difficulties accessing the DAWSON system. Could these difficulties be classified as those rendering the system unavailable?

The opinion points out that circumstances that make the filing location inaccessible to the general public could permit additional time for petition filing:

In circumstances where the Clerk's office or a filing location is inaccessible or otherwise unavailable to the general public, a taxpayer may have additional time to file a petition. See I.R.C. §7451(b); Guralnik, 146 T.C. at 247. Mr. Sanders alleges that DAWSON system errors prevented him from filing his Petition at or before 11:59 p.m. on December 12, 2022.[14]

The Tax Court provides a summary of the Guralnik decision, which allowed for this extension in the petition filing deadline.

In Guralnik, we held that if the Tax Court Clerk’s office is inaccessible on the last day for filing a petition, then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday. Guralnik, 146 T.C. at 232-33 (applying Fed. R. Civ. P. 6(a)). In that case, the Tax Court was closed because of a winter storm on the taxpayer’s last day to file a petition. Id. The taxpayer mailed his petition, but the closure prevented the petition from being delivered on the due date. It was delivered the following day when the Court reopened. Id. at 233-34. We found that although Mr. Guralnik mailed his petition to the Court, he could not take advantage of section 7502 (the “timely mailing rule”) because he did not use the U.S. Postal Service or a designated delivery service. Guralnik, 146 T.C. at 242; see I.R.C. §7502. But by applying the principles of Rule 6(a) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.), we concluded that the Clerk’s office was inaccessible because of the snow day closure and held that the petition was timely. Guralnik, 146 T.C. at 232-33.[15]

For electronic submissions, Congress stipulated a similar extension of time in IRC §7451(b). The provision reads as follows:

(b) Tolling of time in certain cases.

(1) In general. Notwithstanding any other provision of this title, in any case (including by reason of a lapse in appropriations) in which a filing location is inaccessible or otherwise unavailable to the general public on the date a petition is due, the relevant time period for filing such petition shall be tolled for the number of days within the period of inaccessibility plus an additional 14 days.

(2) Filing location. For purposes of this subsection, the term “filing location” means—

(A) the office of the clerk of the Tax Court, or

(B) any on-line portal made available by the Tax Court for electronic filing of petitions.

The Tax Court looks at how other decisions and court rules have defined inaccessible:

The parties disagree about whether DAWSON was inaccessible or otherwise unavailable to the general public on the last day for Mr. Sanders to file a petition. The statute does not define “inaccessible or otherwise unavailable to the general public,” but we can look to other courts and court rules to help us define that phrase. In the context of Fed. R. Civ. P. 6(a)(3) and Rule 9006(a)(3) of the Federal Rules of Bankruptcy Procedure (Fed. R. Bankr. P.), “inaccessibility” traditionally refers to physical inaccessibility — that is, a courthouse closure caused by “weather or other conditions.” In re Beal, 616 B.R. at 153; see Guralnik, 146 T.C. at 245, 249. “The definition of inaccessibility broadened with the advent of electronic filing.” In re Beal, 616 B.R. at 153. Thus, in the 2009 amendments to Fed. R. Civ. P. 6(a)(3) and Fed. R. Bankr. P. 9006(a)(3), “[t]he reference to ‘weather’ was deleted from the text to underscore that inaccessibility can occur for reasons unrelated to weather, such as an outage of the electronic filing system.” Fed. R. Bankr. P. 9006 advisory committee’s note to 2009 amendment; Fed. R. Civ. P. 6 advisory committee’s note to 2009 amendment; see In re Beal, 616 B.R. at 154.

Although inaccessibility can include an outage of an electronic filing system, federal courts have consistently held that inaccessibility does not include user error or technical difficulties on the user’s side. See, e.g., In re Beal, 616 B.R. 140. In In re Beal, 616 B.R. at 143, 147, a bank’s attorney logged onto the electronic filing system at 11:40 p.m. on the last day to file a complaint and filed the complaint 16 minutes after midnight (i.e., the following day). The bank, relying on the attorney’s testimony about perceived malfunctions with the electronic filing system, argued that the complaint would have been timely but for those malfunctions. Id. at 142, 150. But the attorney’s testimony was inconsistent and sometimes unsupported, and court records showed that the filing system was operational. Id. at 150-51, 155. For example, the attorney logged in, experienced no technical difficulties until multiple steps into the process, received error messages the system was designed to produce, and filed a complaint about 36 minutes after logging into the system. Id. at 143-44, 147, 151, 155. The district court explained that the bankruptcy court found it “very unlikely for the system to be rapidly toggling between short periods of functionality and error” and concluded that any errors that occurred were on the user’s side. Beal, 633 B.R. at 405. The bankruptcy court held that the electronic filing system was accessible, and the district court and the U.S. Court of Appeals for the Tenth Circuit affirmed. In re Beal, 616 B.R. at 155; Beal, 633 B.R. at 409-10; In re Beal, 2022 WL 17661140, at *5.

To determine whether section 7451 applies, we must distinguish between the availability of the Court's system and user-specific issues. This approach is consistent whether looking to electronic or physical inaccessibility. For example, in In re Sizemore, 341 B.R. 658, 660 (Bankr. N.D. Ind. 2006), an attorney who filed an untimely petition on behalf of a debtor asked the bankruptcy court to deem the petition to have been timely filed. The attorney was unable to timely file because of problems with his own software. Id. at 659. Looking to Fed. R. Civ. P. 6(a) and Fed. R. Bankr. P. 9006(a), the court acknowledged that filing deadlines may be suspended if a weather-related court closure or other local conditions render the clerk's office physically inaccessible. In re Sizemore, 341 B.R. at 660. But the court found no authority that would deem the clerk's office to be inaccessible to an individual filer who was unable to timely file for reasons that were unique to that individual filer. Id.; see also In re Bicoastal Corp., 136 B.R. 288, 289 (Bankr. M.D. Fla. 1990) (finding inclement weather in another part of the country that caused a delay in the delivery of documents did not render the clerk's office, which was open, inaccessible). The bankruptcy court analogized problems that are unique to a user to a situation where a person gets stuck in traffic on the way to filing a document with the court. In re Sizemore, 341 B.R. at 660.[16]

The opinion clarifies that issues encountered by the user do not qualify as circumstances that render the electronic filing site unavailable.

In the context of electronic filing, user problems, such as entering an incorrect password, a Wi-Fi outage, or problems with the user’s device, are analogous to traffic jams or car problems that occur on the way to an open courthouse; they do not render the system inaccessible or otherwise unavailable to the general public. Although traffic jams and Wi-Fi outages involve different complications, the underlying principle is the same: inaccessibility does not encompass problems that are unique to an individual. Id. Similarly, for purposes of section 7451, a DAWSON outage that affects the public’s ability to file petitions renders DAWSON inaccessible or otherwise unavailable to the general public, whereas problems that an individual filer experiences while DAWSON is operational do not.[17]

Mr. Sanders’ issues were unique to him, and thus, are classified as user problems:

The difficulties Mr. Sanders experienced confirm that DAWSON was accessible and available to the general public. His inability to fill out PDF forms on his phone is irrelevant because the forms are completed separately and are not part of DAWSON’s filing portal. See United States Tax Court, How to e-File a Petition, https://ustaxcourt.gov/resources/dawson/how_to_efile_a_petition.pdf (last visited Apr. 19, 2023). And although a taxpayer must complete multiple steps to file a petition, these are realities of filing whether filing electronically, by mail, or in person. See also In re Beal, 616 B.R. at 154 n.74, 155 (finding that inaccessibility does not include “a lack of familiarity with [the electronic filing system] that causes a filer to make missteps in the filing process or simply to progress through it more slowly than anticipated”); In re Sands, 328 B.R. at 619.10 Finally, Mr. Sanders’s failed login at 11:56 p.m., which occurred between successful logins, does not show a problem with DAWSON. It shows a failed attempt by the user to log into an operational system.

The Court’s own records show the system was operational at all relevant times. The Court’s website allows users to view DAWSON’s system status. See United States Tax Court, https://status.ustaxcourt.gov/. The system recorded no downtime on December 12, 2022. See id. And DAWSON logs show that Mr. Sanders logged in multiple times in the final hour of the day. The logs also show that his failed login at 11:56:15 p.m. was followed by successful logins by another Windows user within one second of his failed attempt and by Mr. Sanders himself within one minute of his failed attempt. These successful logins show that DAWSON was working properly.[18]

The Court highlights that Mr. Sanders, by procrastinating until the eleventh hour, must accept the repercussions of the issues that hindered him from completing the filing process in time for the petition to be received by the system before midnight.

Mr. Sanders’s case exemplifies the risk in last-minute electronic filing. Filing close to the deadline leaves “little margin for error.” Beal, 633 B.R. at 410. As the U.S. Court of Appeals for the Seventh Circuit has noted:

Courts used to say that a single day’s delay can cost a litigant valuable rights. . . . With e-filing, one hour’s or even a minute’s delay can cost a litigant valuable rights. A prudent litigant or lawyer must allow time for difficulties on the filer’s end. A crash of the lawyer’s computer, or a power outage at 11:50 PM, does not extend the deadline, even though unavailability of the court’s computer can do so. . . .

Justice, 682 F.3d at 665[19].

For those who are not typically engaged in filing court petitions but do partake in electronically filing tax returns, a similar risk exists—and there’s no reason to anticipate that the Tax Court would demonstrate greater leniency in such situations.

But It’s Not Fair – Shouldn’t the Tax Court Take That Into Account?

Many might argue that it is evident Mr. Sanders intended to file on time. His confusion could be easily empathized with by anyone who has grappled with technology. Moreover, it’s not as if anyone at the Tax Court would actually notice the filing a moment earlier had it been submitted eleven seconds before. Therefore, shouldn’t the Court offer some leniency to the unfortunate taxpayer and allow his case to proceed? However, the Tax Court’s stance is that Congress explicitly prohibits the Court from granting such equitable relief, irrespective of how much the Court might empathize with Mr. Sanders’ situation.

We are unable to apply the doctrine of equitable tolling to the deadline to file a petition in a deficiency case. The deadline to file a petition in a deficiency case is jurisdictional. I.R.C. §6213(a); Hallmark Rsch. Collective, 159 T.C., slip op. at 42. Equitable tolling has the effect of extending a limitations period set by Congress when a litigant has diligently pursued his rights “but some extraordinary circumstance” nevertheless prevents him from meeting a deadline. Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). But if a federal court's subject-matter jurisdiction depends on a timely pleading, the filing deadline cannot be equitably tolled. United States v. Wong, 575 U.S. 402, 408-09 (2015); Hallmark Rsch. Collective, 159 T.C., slip op. at 7. Where Congress “clearly states” that a deadline is jurisdictional, we must enforce it regardless of equitable considerations. Wong, 575 U.S. at 409; Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16 (2006); Hallmark Rsch. Collective, 159 T.C., slip op. at 8.[20]

[1] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023, https://www.taxnotes.com/research/federal/court-documents/court-opinions-and-orders/tax-court-lacks-jurisdiction-over-petition-filed-seconds-too-late/7gwq3

[2] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[3] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[4] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[5] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[6] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[7] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[8] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[9] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[10] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[11] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[12] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[13] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[14] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[15] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[16] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[17] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[18] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[19] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023

[20] Sanders v. Commissioner, 160 TC No. 16, June 20, 2023