and received. 'Shall file' means to deliver to the office, and not send through the United States mails. * * * A paper is filed when it is delivered to the proper official and by him received and filed.'
It also cited Ritter v. United States, 3 Cir., 1928, 28 F.2d 265; Underwriters, Inc., v. Commissioner, 3 Cir., 1954, 215 F.2d 953 and Hilker & Bletsch Co. v. United States, 7 Cir., 1954, 210 F.2d 847 as supporting the absolute necessity for the strict compliance with statutory requirements within the time for filing.
There can be no quarrel with the decisions in these cases. In the Lombardo case the defendant had been indicted in the Western District of Washington for failure to file a report. He challenged the venue there and the Court held with him that the place of filing was the office of the Government in the District of Columbia and that the offense of the failure to file must be tried there. It rejected the contention of the Government that the defendant could have complied with the requirement of filing the report by mailing it and in so doing used the cited language.
In the Underwriters and Ritter cases proper filing took place past the statutory limit, and in the Hilker & Bletsch Co. case the document in question actually left the hands of the person required to send it too late, albeit by only a very short time, to be received by the official within the statutory period and the court declined to give relief based upon equitable considerations. Of course, there is no holding that the delivery that constitutes filing may not be accomplished by the use of the mail. In fact it is probably almost universally so done. All the evidence in this case points to the fact that the claim was mailed by the plaintiff on June 6, 1952. The presumption of delivery in the ordinary course of the mails that arises upon proof of mailing, although rebuttable, is one not easily overcome. Arkansas Motor Coaches v. Commissioner of Internal Revenue, 8 Cir., 1952, 198 F.2d 189; Crude Oil Corp. of America v. Commissioner of Internal Revenue, 10 Cir., 1947, 161 F.2d 809. This strong presumption is reinforced in this case by the unusual circumstance that the envelope in question was actually received in the mails.
When the plaintiff failed to receive any acknowledgment of the receipt of its claim inquiry was made and it was informed that the claim had not been received. A search was instituted in the Baltimore Tax Offices, but no evidence of its receipt was found.
The defendant read into the record the depositions of three of its Baltimore employees. The mail clerk, whose duty it was to stamp received mail and route it to the proper office could give no direct testimony of the receipt of the plaintiff's claim on December 4, 1952, even though it had been reported missing and emphasis had been laid on the need for search for it in the previous months. All that she could say was that since it had been stamped on December 4, 1942, it must have been received that day. From the description of the mail handling practices given by the defendant's witnesses it would seem more probable that the plaintiff's claim was received in June, 1952 at the Baltimore offices, but was there misplaced only to be found in the following December. The evidence was insufficient to overcome the presumption of receipt.
Since it is settled that the plaintiff's statutory duty of 'filing' a claim before the end of June, 1952 was performed when the claim was delivered in the ordinary course of the mails to the tax office, United States v. Lombardo, supra; Hilker & Bletsch Co. v. United States, supra; Poetz v. Mix, 1951, 7 N.J. 436, 442, 81 A.2d 741, it appears that the plaintiff should prevail and judgment should be entered in its favor for the amount of $ 2,658.30.
The foregoing shall be considered to be findings of facts and conclusions of law in satisfaction of the requirements of Rule 52(a) of the Federal Rules of Civil Procedure.
An order in conformity herewith should be submitted by the plaintiff approved only as to form by the defendant, reserving to it its objection to the decision, or notice should be given of settlement of an order.