Mitchell v. Commissioner

FILED
United States Court of Appeals
Tenth Circuit
July 1, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
LOUIS P. MITCHELL,
Petitioner-Appellant, No. 07-9002
(T.C. No. 19258-04L)
v. (Petition for Review)
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
ORDER *
Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.
Petitioner Louis P. Mitchell, appearing pro se, petitions for review of the
Tax Court’s November 6, 2006, memorandum opinion explaining its reasons for
granting summary judgment in favor of the Commissioner. Because Mr. Mitchell
is pro se, we have construed his pleadings liberally. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972) (per curiam). Having determined that we lack
jurisdiction over the petition for review, we dismiss it.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
I.
In October 2004, Mr. Mitchell filed a petition in the Tax Court seeking
review of a notice of levy pertaining to his tax liability for tax year 2000. The
Commissioner moved for summary judgment. The Tax Court issued a
memorandum opinion in favor of the Commissioner on November 6, 2006.
R., Doc. 30. Mr. Mitchell presented a motion to the court captioned “Motion for
Reconsideration of November 6, 2006, Memorandum Opinion.” R., Doc. 32. The
motion is dated December 6, 2006, but the Tax Court did not file it until
December 13. While Mr. Mitchell’s motion for reconsideration was presumably
in the mail, the Tax Court entered a summary order and decision granting
summary judgment to the Commissioner on December 8, 2006, which made its
November 6 memorandum opinion final. Id., Doc. 31. The Tax Court stamped
Mr. Mitchell’s motion for reconsideration “DENIED” on December 15, 2006. See
id., Doc. 32. Mr. Mitchell later mailed a notice of appeal from the Tax Court’s
November 6, 2006, memorandum opinion. Id., Doc. 33. The envelope was
postmarked March 10, 2007. Id.II.
“The timely filing of a notice of appeal from the Tax Court is mandatory
and jurisdictional.” Twenty Mile Joint Venture, PND, Ltd. v. Comm’r, 200 F.3d
1268, 1274 (10th Cir. 1999). Under 26 U.S.C. § 7483, Mr. Mitchell had ninety
days after the entry of the Tax Court’s December 8, 2006, order and decision to
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file his notice of appeal. See also Fed. R. App. P. 13(a)(1). When a document is
mailed to the Tax Court, the postmark on the envelope is “deemed to be the date
of delivery[.]” 26 U.S.C. § 7502(a)(1); see also Umbach v. Comm’r, 357 F.3d
1108, 1111 (10th Cir. 2003). Ninety days from the Tax Court’s December 8,
2006, order and decision was March 8, 2007. Mr. Mitchell’s March 10, 2007,
notice of appeal was therefore untimely as to the Tax Court’s December 8, 2006,
order and decision and the underlying November 6, 2006, memorandum opinion,
and it does not confer jurisdiction over the November 6, 2006, memorandum
opinion on this court.
Although Mr. Mitchell’s notice of appeal would have been timely to appeal
the Tax Court’s December 15, 2006, order denying reconsideration, it is otherwise
defective to confer jurisdiction on this court over that order. The contents of a
notice of appeal are governed by Fed. R. App. P. 3(c), which applies to tax
appeals under Fed. R. App. P. 13(c). Mr. Mitchell’s notice of appeal did not
designate the Tax Court’s December 15, 2006, order denying reconsideration, as
required by Rule 3(c)(1)(B), and the notice of appeal therefore does not confer
jurisdiction on this court over that order.
III.
We have also considered whether Mr. Mitchell’s December 13, 2006,
motion for reconsideration can properly be construed in a manner that would
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provide jurisdiction over his petition for review, but we have concluded that it
cannot.
If the motion for reconsideration were construed as a notice of appeal, it
would be timely to appeal the Tax Court’s November 6, 2006, memorandum
opinion. And Mr. Mitchell’s identification of the Ninth Circuit as the court to
which he might appeal, see R., Doc. 32, at 1 ¶ 3, is merely a technical violation of
Rule 3(c)(1)(C) that would not be fatal to our jurisdiction. See United States v.
Garcia, 459 F.3d 1059, 1062 n.1 (10th Cir. 2006).
But Mr. Mitchell’s motion for reconsideration does not satisfy “[t]he
purpose of Rule 3(c)’s requirements . . . to provide all parties and the court with
sufficient notice of a litigant’s intent to seek appellate review.” Berrey v. Asarco
Inc., 439 F.3d 636, 642 (10th Cir. 2006) (citing Smith v. Barry, 502 U.S. 244, 248
(1992)). “We must ‘construe Rule 3 liberally when determining whether it has
been complied with.’” United States v. Smith, 182 F.3d 733, 735 (10th Cir. 1999)
(quoting Smith v. Barry, 502 U.S. at 248). Nevertheless, Mr. Mitchell’s motion
for reconsideration clearly sought relief solely from the Tax Court. It did not
evidence any intent to seek immediate appellate review, and it therefore cannot be
the functional equivalent of a notice of appeal. Cf. Smith v. Barry, 502 U.S.
at 248-49 (holding that appellate brief may substitute as notice of appeal if it
provides notice required by Rule 3(c)); Fleming v. Evans, 481 F.3d 1249, 1253-54
(10th Cir. 2007) (construing combined motion for leave to proceed on appeal
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without prepayment of costs or fees and application for certificate of appealability
and pro se docketing statement as functional equivalent of notice of appeal
because documents, together, provided notice required by Rule 3(c)); United
States v. Smith, 182 F.3d at 735-36 (construing “Motion For Out of Time Notice
of Appeal” as notice of appeal because it provided notice required by Rule 3(c));
Hatfield v. Bd. of County Comm’rs, 52 F.3d 858, 860-62 & n.3 (10th Cir. 1995)
(construing combined “Motion for Reconsideration of Order Granting Summary
Judgment or in the Alternative a Notice of Appeal” as notice of appeal because it
provided notice required by Rule 3(c); there was “no importance in the fact that
plaintiff phrased his notice of appeal as an alternative to the motion” for
reconsideration).
Mr. Mitchell’s December 13, 2006, motion for reconsideration was also
untimely under the Tax Court Rules, see Tax Ct. R. 161, and it would be equally
untimely under the Tax Court Rules if we construed it as a motion to vacate or
revise the Tax Court’s decision, see Tax Ct. R. 162. Although Mr. Mitchell avers
that he mailed the motion for reconsideration on December 6, 2006, nothing in the
record proves the date of mailing under 26 U.S.C. § 7502, and his
“uncorroborated self-serving testimony of mailing” is insufficient. See Sorrentino
v. IRS, 383 F.3d 1187, 1194 (10th Cir. 2004). As a result, the motion for
reconsideration cannot be given tolling effect under Fed. R. App. P. 13(a)(2),
which provides that “a timely motion to vacate or revise the Tax Court’s
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decision” tolls the time for appeal. Furthermore, this court has never given
tolling effect in a tax appeal to a motion for reconsideration, which is not
mentioned in Rule 13. The Ninth Circuit has done so, but the motion to which it
gave tolling effect was timely filed. See Nordvik v. Comm’r, 67 F.3d 1489,
1493-94 (9th Cir. 1995). Mr. Mitchell’s motion for reconsideration was untimely,
and he therefore cannot rely on the Ninth Circuit’s decision.
The petition for review is DISMISSED for lack of jurisdiction.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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