Determination of Timeliness (Rescinded February 28, 2011)

AUTHORITY: section 144.270, RSMo 1994. S.T. regulation 160-2 was last filed Oct. 28, 1975, effective Nov. 7, 1975. Refiled March 30, 1976. Amended: Filed Aug. 13, 1980, effective Jan. 1, 1981. Rescinded: Filed Sept. 13, 2010, effective Feb. 28, 2011. Evergreen Lawn Service v. Director of Revenue, State of Missouri and the Administrative Hearing Commission, 685 SW2d 829 (Mo. banc 1985). The issue in this case was whether the taxpayer met the thirty-day requirement contained in section 161.273, RSMo, for filing its appeal from a final decision of the director of revenue. In this case the thirtieth day was a Saturday. The taxpayer’s agent, Airborne Freight Corporation, attempted delivery of the appeal at the offices of the Administrative Hearing Commission on that Saturday. Since no one was available to receive the appeal, it was not physically received by the commission until Monday, the thirty-second day. The director posited and the commission held that the taxpayer’s appeal was untimely. They reasoned that the only exception to actual receipt was section 161.350, RSMo, which deems timely the receipt of appeals mailed within the prescribed period by registered mail. The court’s analysis was not directed towards when the thirtyday period expired, but rather towards what action was sufficient to constitute filing. In the court’s opinion section 161.350, RSMo, was not relevant, since actual filing had been attempted on Saturday, the thirtieth day. The court found that the attempted delivery was adequate to constitute a constructive filing thereby making the appeal timely. Falley’s Food-4-Less v. Director of Revenue, Case No. RS-83-0010 (A.H.C. 8/3/87). Petitioner, a retail seller, filed his sales tax returns for October 1981 and August 1982 via the United States mail. The postmark dates on these returns were November 23, 1981, and September 22, 1982, respectively. Respondent assessed penalties for late filing on these periods. The Administrative Hearing Commission held since the amount of tax imposed on petitioner was in excess of $250 for the first or second month of a calendar quarter, the payments were due by the twentieth day of the succeeding month. Petitioner was required by statute, not by the director, to file monthly instead of quarterly returns, therefore 144.080.2, RSMo, applies rather than 144.090, RSMo. Further, 12 CSR 10-3.506 provides that timeliness of a sales tax return is to be determined by reference to the return’s postmark. Because petitioner’s returns were postmarked November 23 and September 22, these returns were filed out of time.