IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-60559
Summary Calendar
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DEBRA J. HORD,
Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
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Appeal from the Decision of the United States Tax Court
(6386-99)
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February 28, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Debra J. Hord appeals an Order of the Tax
Court granting the motion of Respondent-Appellee Commissioner of
Internal Revenue (“Commissioner”) to dismiss Hord’s petition for
lack of jurisdiction. The Order appealed from is based on the Tax
Court’s factual findings that (1) the Commissioner mailed a notice
of deficiency on December 29, 1998 for federal income tax due from
Petitioner for 1996, (2) the 90-day period specified in § 6213(a)
*
Pursuant to 5th Cir. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
within which Hord could file a petition for redetermination in the
Tax Court expired March 29, 1999, being the last day that Hord
could have timely placed her petition in the United States mail,
and (3) Hord has failed to prove that her petition was mailed
before March 30, 1999. In turn, the Tax Court’s determination of
the third of these facts is based on its discrete findings that a
Postal Service machine stamp on the face of the envelope in which
Hord’s petition was transmitted is a postmark for purposes of §
7502(a)(1) I.R.C.; that the private postage meter mark reflecting
the date of March 29, 1999 is not a postmark and is thus
disregarded; that the partial date stamped by the Postal Service’s
machine on Hord’s envelope is March 30, 1999; and that, even in the
alternative that the partial date were not a postmark or were
deemed illegible and thus not determinative, the extrinsic evidence
proffered by Hord in the form of the uncorroborated testimony of
her attorney to the effect that the attorney personally delivered
the envelope containing the petition to the postal facility at
Houston’s Bush Intercontinental Airport at “approximately” 11:30
p.m. is insufficiently precise and insufficiently credible to
establish a timely mailing of the petition.
I.
We review the factual findings of the Tax Court for clear
error and the legal conclusions of that Court de novo. A
painstaking review of the record in this case, including an
examination of the exhibits —— particularly the envelope on which
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the partial date is machine stamped —— as well as the comprehensive
opinion of the Tax Court and the arguments of counsel as set forth
in their appellate briefs, satisfies us that the factual findings
of the Tax Court are not clearly erroneous and its legal
conclusions based on those facts are correct.
II.
A. Date of Mailing of the Commissioner’s Notice of Deficiency
Hord’s first line of defense is a hypertechnical evidentiary
assertion that the Commissioner failed to lay a proper foundation
or prove authenticity of a certified true copy of the Form 3887
that reflects the mailing of a notice of deficiency to Hord for
1996 taxes on December 29, 1998. Hord was just one of thirteen
taxpayers, the mailing of whose notices of deficiencies was
reflected on that form. In addition to complaints about foundation
and authenticity, Hord’s evidentiary argument also focuses on the
redaction of the names of the other twelve taxpayers from the copy
of the Form 3887 before offering it into evidence. The obvious
purpose of the redaction of the other names was to comply with the
obligation of the Commissioner to refrain from publishing
privileged tax return information about those other twelve
taxpayers.
As noted by the Tax Court, counsel for Hord initially
indicated no objection to admitting the Form 3887, then had second
thoughts because counsel for the Commissioner had not produced a
live witness to support the authenticity of the document, but again
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indicated no objection after counsel for the Commissioner offered
to produce a witness to authenticate the document if Hord insisted.
It was only in her post-trial brief that counsel for Hord argued
that the redactions kept the Form 3887 from being in original
condition and reiterated the complaint about failure to lay a
proper foundation or prove authenticity. The Tax Court correctly
ruled that Hord had waived or forfeited those objections. Under
the circumstances, the appellate argument of Hord’s counsel
regarding the date of mailing the notice of deficiency is not
merely specious but approaches sanctionable frivolousness. The Tax
Court neither abused its discretion in its evidentiary ruling nor
clearly erred in finding that the Commissioner mailed the notice of
deficiency to Hord on December 29, 1998.
B. Date of Mailing of Hord’s Petition
We are convinced that the fragmentary date reflected by the
machine stamp on Hord’s envelope is a shard of the figure 30 and
could not possibly be that of the figure 29. Moreover, even if we
assume arguendo that the machine stamp is not a postmark for
purposes of the applicable provisions of law, thereby opening the
door for extrinsic proof by Hord that her petition was mailed on
March 29, 1999, we cannot classify as clearly erroneous the Tax
Court’s conclusion that Hord has failed to bear her burden of
proof. Her evidence consists entirely of what the Tax Court called
the “implausible and self-serving” testimony of Hord’s lawyer, who
could not recall the exact time of her delivery of the envelope to
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the postal facility at Bush Intercontinental Airport and whose
testimony the Tax Court found lacking in credibility. Such calls
are uniquely the province of the trial court which views the
witness’s demeanor. From our cold-record vantage point, we are in
no position to question the trial court’s determination of
credibility. With such testimony discarded, Hord’s evidence lacks
any probative value.
III.
In conclusion, the factual findings of the Tax Court on which
its legal conclusion is grounded are not clearly erroneous, and
that Court’s legal determinations are unassailable. We therefore
affirm the Tax Court’s grant of the Commissioner’s motion
dismissing Hord’s petition for redetermination for lack of
jurisdiction.
AFFIRMED.
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