# Charlson Realty Company v. The United States > United States Court of Claims · October 13, 1967 · 384 F.2d 434 URL: https://www.frixlaw.com/law-library/cases/9453055 ## Case - **Full name:** CHARLSON REALTY COMPANY v. the UNITED STATES - **Court:** United States Court of Claims - **Decided:** October 13, 1967 - **Citations:** 384 F.2d 434; 181 Ct. Cl. 262; 20 A.F.T.R.2d (RIA) 5578; 1967 U.S. Ct. Cl. LEXIS 10 - **Precedential status:** Published - **Opinion:** Concurrence by Jones - **Judges:** Wen, Davis, Laramore, Durfee, Cowen, Jones, Skelton, Nichols - **Cited by:** 64 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9453055 ## How later opinions describe it (automated extraction) - explaining that justification for presumption of arrival of mail in due course is that "[p]ostal employees are presumed to discharge their duties in a proper manner” (citations omitted) ## Opinion text JONES, Senior Judge (concurring): Plaintiff’s amended claim for a refund of income taxes was deposited in the Post Office at St. Paul, Minnesota, on November 30, 1960, addressed to the United States Court of Claims, Washington, D. C. On the envelope in which the petition was enclosed were placed sufficient stamps for transportation as first class mail. The filing date in the court, as stamped on the petition, was December 7, 1960. The limitation period for a suit to be begun expired on December 6, 1960. The plaintiff asserts that since the elapsed time between the mailing and the court docketing was 6 days, which was substantially more than sufficient for normal transportation and docketing even as fourth class mail, the claim should be held as having arrived in due time and having been actually filed within time for consideration on the merits. The normal time for transportation of first class mail from St. Paul to Washington, D. C., according to an official of the Post Office Department is 2 days for first class mail and 1 day longer for fourth class mail. It should have arrived at its destination not later than December 3d, and should certainly have been docketed before the end of December 6th. The proof of timely mailing must be clearly established. While the fact of mailing and the presumption of timely arrival are rebuttable, the courts have held that the mere late filing marks in the court’s records are not sufficient to *446 rebut the legal presumption of timely arrival if timely mailing is clearly established. The facts in this ease are strikingly similar to the facts in Arkansas Motor Coaches, Ltd., Inc. v. Commissioner, 198 F.2d 189 (8th Cir. 1952). In that case there was placed in the mail at the Post Office in Dallas, Texas, on January 30, 1951, a petition for review of an income tax assessment. It was addressed to the Tax Court of the United States in Washington, D. C. The envelope bore stamps sufficient for first class transportation by United States mail. The case was docketed in the Tax Court, February 6, 1951, one day after the 90 days’ limitation period had expired. The Tax Court on motion by defendant dismissed the suit on the ground that the petition was filed out of time. The United States Court of Appeals reversed the Tax Court and permitted a consideration on the merits. Except for inference drawn from the delay in docketing there was no showing of specific lack of diligence either on the part of employees of the Post Office or the Tax Court. The court held it would be presumed to have arrived at the Tax Court in time and should be filed and docketed for consideration. Arkansas Motor Coaches, supra. The distance from Dallas, Texas, to Washington, D. C., is practically the same as from St. Paul, Minnesota, to Washington, D. C. There, as here, the stamps were sufficient for first class mail. In the Arkansas Motor Coaches case the petition for review was mailed only 2 days before the permitted filing period expired. In the instant case there were 6 days. In that case the Eighth Circuit held that it would be presumed that the petition arrived before the time permitted for filing had elapsed, and the case would be heard accordingly. The Arkansas Motor Coaches case enunciated the rule in 1952 that if a petition is mailed in sufficient time for it to reach the Tax Court in the normal course of the mail before the time limit for filing has expired it should be presumed to have reached the court and been filed in time unless there is clear and satisfactory proof that it did not arrive at the court in time. In establishing this doctrine the Court of Appeals overruled the Tax Court which had held otherwise. In a manifest effort to further liberalize the legal presumption incident to the timely mailing of claims and other documents, the Congress by Section 7502 of the 1954 Internal Revenue Code went beyond the ruling established by the circuit court’s decision and provided that the time of mailing a document should be treated as the actual filing date in the Tax Court. This enactment of Section 7502 in 1954 did not in any way affect the doctrine enunciated by the Eighth Circuit in 1952 that if a document is mailed in time to reach the court in the normal course of the mail it is sufficient to create a presumption of timely arrival. It merely added to this decisive ruling that in the Tax Court the date of original mailing should be treated as the date of actual filing in the Tax Court. That is all this section did. The section provided that the section making the mailing and filing date synonymous should not apply to any other court. The principle had already been established that if mailed in time to reach destination in the normal course of transmission before the expiration of the limitation period, the court may, if in its judgment the facts of the case justify such action, conclude that the filing papers arrived at the court within the prescribed time. There is every reason to apply the principle enunciated by the Arkansas Motor Coaches decision to the situation in the instant case. The prior ruling by the circuit court in the Arkansas Motor Coaches case merely puts the local litigant and the out-of-town claimant on a more nearly even basis, and removes at least a part of the discrimination against the out-of-town claimant. This rule is especially important in the United States Court of Claims which has national jurisdiction. The commission *447 ers are sent all over the United States to conduct trials for the convenience of litigants, but the court’s situs is Washington, D. C. The mailing privilege is especially needful for Pacific coast litigants, 3,000 miles away, and for people in Hawaii and Alaska who are several thousand miles farther away. Why should they have their limitation period shortened several days as against litigants living near Washington, D. C.? Many of the Government installations are on the coast. Manifestly, it is impractical to get on the train or plane and carry the document to Washington, D. C., at great expense. The same principle has been applied in the following cases: Central Paper Co. v. Commissioner, 199 F.2d 902 (6th Cir. 1952); Detroit Automotive Products Corp. v. Commissioner, 203 F.2d 785 (6th Cir. 1953); Crude Oil Corporation v. Commissioner, 161 F.2d 809 (10th Cir. 1947); Schultz v. United States, 132 F.Supp. 953 , 132 Ct.Cl. 618 (1955); Jones v. United States, 226 F.2d 24, 28 (9th Cir. 1955). 1 It is not claimed in the instant case that the mailing date should be held to be synonymous with the filing date. It is simply claimed that since plaintiff mailed his claim in St. Paul on November 30, thus allowing substantially more than sufficient time for it to have reached the court in the normal transmission of the mails, it should, in line with the several decisions cited, be presumed to have been delivered to the court before the expiration date of December 6. This suit, therefore, should be held as “begun,” within the terms of the statute, before the end of December 6, 1960. While we cannot shorten the period of limitation the court may determine when and where suit is begun if such determination is reasonable under the wording of the statute. This is in complete harmony with the principles announced in the cases cited above. If this court were to deny a hearing on the merits it would be in direct conflict with the principle laid down by the Eighth Circuit in the Arkansas Motor Coaches case, which was decided two full years before the enactment of Section 7502 of the Internal Revenue Code of 1954. This rule of the effective use of the mails is fair to everyone and unfair to no one. Successful businessmen use the mails continuously in commercial transactions. In fact, they would be greatly handicapped if denied the use of the mails. The Government uses the mails in a multitude of transactions, including the handling of its dealings with millions of income tax paying citizens. By defendant’s own regulations its demands and its jeopardy assessments are sent by mail to the taxpayer’s last known address. It thus binds the citizen without any further requirement. The Post Office Department is operated by the United States. It contracts for a consideration to carry the mails. The use of and reliance upon the United States mail service is almost universal. People everywhere use its facilities. The service is essential to modem business operations. The postal service is not perfect; no human institution can be. It nevertheless renders a wonderful service. Founded in the early days of our national life it has had nearly two centuries of successful operation. Its officials and employees have a natural pride in its accomplishments. It has justly earned the confidence of the people *448 of the United States. It is in no way remarkable that business, both private and governmental, trusts its efficiency in important business and personal transactions of all kinds. 2 Is there any good reason why a litigant on the Pacific coast should have his period of limitation shortened by 8 or 10 days? It would be a tragic injustice to deny plaintiff a hearing when it placed its petition in the Post Office in St. Paul with stamps sufficient to entitle it to be transported as first class mail, 6 days before the expiration of the filing date. A postal official testified that normally first class mail would be transported to its destination in 2 days, and that fourth class mail would take about a day longer. If we allow 2 days’ tolerance it still should have arrived with a day or two to spare. There is not the slightest doubt that the papers were mailed in ample time. The circumstances preclude any other reasonable conclusion. The evidence of timely mailing as well as timely arrival also is rebuttable. Nearly all alleged facts or apparently proven facts are rebuttable in any case. However, the evidence of timely mailing is so clearly established here that the defendant both in brief and oral argument concentrates in an effort to show late arrival, but it failed to produce any positive evidence of late arrival of the claim in this case. Certainly the evidence offered by defendant to overcome the presiimption in the instant case that the petition arrived in time to have been docketed before the expiration date was unsatisfactory. It was wholly negative, and failed to overcome the presumption of timely arrival. The right to a day in court is one of the most highly prized rights of any citizen of this Republic. I have always thought that one of the chief glories of the Constitution is the fact that you cannot take the shirt from the back of the ragged street urchin without either securing the lad’s consent, or paying him for the rags, or at least permitting him a hearing as to how he came by the shirt. This is a broad, big country. There are people living great distances away even in continental United States. Thousands of miles farther live the citizens of Hawaii and Alaska. Must they have their rights still further lessened or their time for asserting these rights further reduced? No one would suggest that a petition must be personally “toted” from Alaska or that otherwise the citizen should take a risk or gamble with his rights. The plaintiff mailed its petition in the Post Office in St. Paul, Minnesota, November 30th. If another plaintiff in the Washington, D. C., area, with exactly the same facts, had submitted its claim December 6, the latter’s case would be decided on the merits while the instant plaintiff’s claim would be denied without a hearing even though it was mailed 7 days earlier. This would be true even though the second plaintiff mailed its petition in Washington, D. C., on December 6, since all ABCD street boxes in Washington, D. C., bear a sign to this effect, “Mail here before 11 a. m. — delivered before 3 p. m., local only.” Both plaintiffs would be using the same facility. Unless we apply the principle so clearly stated in Arkansas Motor Coaches, the one living in Washington would have a hearing on the merits while the one living in St. Paul (plaintiff herein) would be denied a hearing even though it acted 6 days earlier. There is an inscription deeply engraved on the front of the Supreme Court building: “Equal Justice Under Law.” Why should it not be applied in this case? . Rule 5(e) of the United States Court of Claims recognizes the same principle: “(c) Additional Time After Service by Mail. — Whenever a party has the right or is required to do some act or take some proceeding within a prescribed period after the service of a pleading, motion, or other paper upon him, and the service is made by mail outside the District of Columbia, 3 days shall be added to the prescribed period for points east of the Mississippi River, and 5 days shall be added to the prescribed period for points west of the Mississippi River.” . Hon. John R. Brown of the Fifth Circuit, in a dissenting opinion in Rich v. Commissioner, 250 F.2d 170, 177 (5th Cir. 1957), has a well reasoned discussion of this phase. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9453055. Public record. Not legal advice.