T.C. Memo. 2014-223
UNITED STATES TAX COURT
JOSEPH SANCHEZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 5112-14. Filed October 22, 2014.
R mailed a notice of deficiency to P on Dec. 2, 2013. The last
day to file a petition with the Court was Monday, Mar. 3, 2014. The
petition was received by the Court and filed on Mar. 10, 2014. The
envelope in which the petition was received bears both a U.S. Postal
Service postmark dated Mar. 4, 2014, and a mark from Stamps.com
dated Mar. 3, 2014. R filed a motion to dismiss for lack of
jurisdiction.
Held: The mark from Stamps.com is disregarded. Malekzad v.
Commissioner, 76 T.C. 963, 966-967 (1981), applied and followed.
Accordingly, the petition was not timely filed, and the Court does not
have jurisdiction to decide P’s case.
Held, further, R’s motion to dismiss will be granted.
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[*2] Joseph Sanchez, pro se.
S. Mark Barnes, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This matter is before the Court on
respondent’s Motion To Dismiss For Lack Of Jurisdiction, filed May 28, 2014.
Respondent moves to dismiss this case on the ground that the petition was not
filed within the time prescribed by section 6213(a) or section 7502.1 Attached to
respondent’s motion was a Postal Service Form 3877. For reasons discussed
hereinafter, we shall grant respondent’s motion.
Background
At the time that the petition was filed, petitioner resided in the State of
Utah.
On December 2, 2013, respondent sent petitioner a notice of deficiency.
The notice determined a deficiency in income tax for 2010 of $10,508 and an
accuracy-related penalty under section 6662(a) of $2,102.60.
1
Unless otherwise indicated, all section references are to the Internal
Revenue Code, as amended and in effect at all relevant times, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
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[*3] The first page of the notice of deficiency included the following statement:
“If you want to contest this determination in court before making any payment,
you have * * * 90 days from the date of this letter * * * to file a petition with the
United States Tax Court for a redetermination of the amount of your tax.” Also
included on the first page of the notice was the following statement: “Last Date to
Petition Tax Court: March 3, 2014”.
On Monday, March 10, 2014, the Court received a petition from petitioner
seeking a redetermination of the deficiency and penalty determined by respondent
in the notice of deficiency.2 The petition arrived at the Court by mail in an
envelope bearing a U.S. Postal Service postmark date of March 4, 2014. Affixed
to the envelope was a “stamp” printed by a third party from her computer using
software from Stamps.com3 and a certified mail sticker. The “stamp” reflected the
“stamps.com” logo, “$4.70” of “US Postage First-Class”, a five-digit number that
2
A copy of the notice of deficiency was attached to the petition as an
exhibit.
3
Stamps.com Inc. is a publicly traded company (NASDAQ: STMP) that is
headquartered in El Segundo, Cal., and that provides Internet-based postage
services. The company’s online postage service provides a user the ability to buy
and print U.S. Postal Service-approved postage directly from the user’s computer.
See http://www.stamps.com/company-info/. “Simply log-in to Stamps.com, print
your postage then drop your letters and packages into any mailbox, hand them to
your postal carrier or schedule a USPS pick-up right through the software.” See
http://www.stamps.com/postage-online/post-office/.
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[*4] presumably corresponds to the ZIP Code from which the “stamp” was
generated, and “MAR 03 2014”. The “stamp” also includes a string of
alphanumeric characters whose meaning is not disclosed in the record.
As indicated respondent filed a Motion To Dismiss For Lack Of Jurisdiction
on May 28, 2014. Petitioner filed a Notice Of Objection on June 25, 2014.
Respondent supplemented his motion on August 18, 2014. Although afforded the
opportunity to do so, petitioner did not file a reply to respondent’s supplement.
Discussion
General Principles
This Court’s jurisdiction to redetermine a deficiency in income tax depends
on the issuance of a valid notice of deficiency and a timely filed petition. Rule
13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.
Commissioner, 90 T.C. 142, 147 (1988). Section 6212(a) expressly authorizes the
Commissioner, after determining a deficiency, to send a notice of deficiency to the
taxpayer by certified or registered mail. The taxpayer, in turn, has 90 days (or 150
days if the notice is addressed to a person outside the United States) to file a
petition with this Court for a redetermination of the contested deficiency. Sec.
6213(a). By virtue of section 7502, a petition that is timely mailed may be deemed
to be timely filed.
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[*5] Although timely mailing is generally determined by the postmark date, see
sec. 7502(a); sec. 301.7502-1(c)(1), Proced. & Admin. Regs., extrinsic evidence is
admissible if a postmark date is either illegible or missing, see Mason v.
Commissioner, 68 T.C. 354 (1977); Sylvan v. Commissioner, 65 T.C. 548 (1975).
In the instant case, the U.S. Postal Service postmark is neither illegible nor
missing but clearly reflects the date of March 4, 2014.
It is clear in the present case that respondent mailed the notice of deficiency
to petitioner on December 2, 2013. See Magazine v. Commissioner, 89 T.C. 321,
327 n.8 (1987) (holding that Postal Service Form 3877 represents direct evidence
of the date of mailing of the notice of deficiency); see also Clough v.
Commissioner, 119 T.C. 183, 187-188 (2002) (overruling various challenges by a
taxpayer to the introduction into evidence of Postal Service Form 3877 by the
Commissioner). The 90th day after the date of mailing was Sunday, March 2,
2014. Accordingly, the notice correctly stated that the last day to petition the
Court was Monday, March 3, 2014. See sec. 7503 (regarding the time for
performance of acts where the last day otherwise falls on a Saturday, Sunday, or
legal holiday). However, the petition was not received and filed by the Court until
Monday, March 10, 2014. Thus, the petition was not timely filed and respondent’s
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[*6] motion must be granted unless the petition is deemed to have been timely
filed by virtue of having been timely mailed.
Petitioner’s Position
Petitioner argues that the petition was timely because “the log from
Stamp.Com [sic] show[s] that the petition was processed on March 3, 2014” and
because the petition was delivered to the U.S. Postal Service on that same date. In
support of his argument petitioner provided a statement by the third party who
prepared the petition for mailing and then delivered it to the post office. In her
statement the third party describes how on Monday, March 3, 2014, after being
“given documents to mail”, she printed postage using Stamps.com software, added
extra postage for certified mail, and then took the petition to the U.S. Post Office
in Bountiful, Utah, for deposit into the mail. The third party candidly states that in
order to “avoid[] the long lines” at the post office, she dropped the petition off
without having a certified mail receipt stamped by a Postal Service employee and
that as a consequence “the sender has no documentation showing * * * [the post
office] received the certified package” on March 3, 2014.
Respondent’s Position
Respondent argues that the U.S. Postal Service postmark demonstrates that
the petition was not timely mailed. In this regard respondent relies on the
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[*7] declaration of the senior manager for distribution and operations of the U.S.
Postal Service in Salt Lake City, Utah, stating that “[t]he marking on the envelope,
which reads ‘Salt Lake City UT - TUE 04 MAR 2014 - 841 PM’ is an official
postmark used by the United States Postal Service.” Because the notice of
deficiency correctly stated that the last day to file a petition was March 3, 2014,
and the U.S. Postal Service postmark bears a date of March 4, 2014, respondent
argues that the petition was not timely mailed.
Analysis
Because petitioner is the party invoking the Court’s jurisdiction, he bears
the burden of proving that the petition was timely filed. See Maddox v.
Commissioner, T.C. Memo. 2009-241.
Section 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs., provides for
situations in which a mailpiece has both U.S. Postal Service postmarks and non-
U.S. Postal Service marks. That section provides as follows:
If the envelope has a postmark made by the U.S. Postal Service in
addition to a postmark not so made, the postmark that was not made
by the U.S. Postal Service is disregarded, and whether the envelope
was mailed in accordance with this paragraph (c)(1)(iii)(B) will be
determined solely by applying the rule of paragraph (c)(1)(iii)(A) of
this section [quoted below].
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[*8] Therefore, because the envelope was postmarked by the U.S. Postal Service
and legibly so, any other postmark is to be disregarded, including the one from
Stamps.com, which is not a U.S. Postal Service postmark. See Malekzad v.
Commissioner, 76 T.C. at 966-967 (upholding the validity of an earlier version of
section 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs.,4 and concluding that
a U.S. Postal Service postmark trumps a private postage meter mark as the latter is
disregarded pursuant to the operative regulation).
Next, assuming without deciding that the petition was delivered to the post
office on March 3, 2014, we must decide whether delivering the petition to the
post office on the last day to file a petition is sufficient to deem the petition timely
filed. Section 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs., provides:
If the postmark on the envelope is made by the U.S. Postal Service,
the postmark must bear a date on or before the last date * * *
prescribed for filing the document or making the payment. If the
postmark does not bear a date on or before the last date * * *
prescribed for filing the document or making the payment, the
document or payment is considered not to be timely filed or paid,
regardless of when the document or payment is deposited in the mail.
Accordingly, the sender who relies upon the applicability of section
7502 assumes the risk that the postmark will bear a date on or before
the last date * * * prescribed for filing the document or making the
payment. See, however, paragraph (c)(2) of this section with respect
4
That earlier version was sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin.
Regs. Such section is substantively identical to sec. 301.7502-1(c)(1)(iii)(B)(3),
Proced. & Admin. Regs., discussed above in the text.
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[*9] to the use of registered mail or certified mail to avoid this risk. * * *
[Emphasis added].
Using registered or certified mail, the sender can obtain a postmarked
receipt from the U.S. Postal Service that is evidence of timely mailing and hence
timely filing. See sec. 7502(c); sec. 301.7502-1(c)(2), Proced. & Admin. Regs.;
see also sec. 7502(f) (regarding the use of private delivery services). Section
301.7502-1(c)(2), Proced. & Admin. Regs., provides in relevant part as follows:
If the document or payment is sent by U.S. registered mail, the date of
registration of the document or payment is treated as the postmark
date. If the document or payment is sent by U.S. certified mail and
the sender’s receipt is postmarked by the postal employee to whom
the document or payment is presented, the date of the U.S. postmark
on the receipt is treated as the postmark date of the document or
payment. Accordingly, the risk that the document or payment will
not be postmarked on the day that it is deposited in the mail may be
eliminated by the use of registered or certified mail.
As previously stated, the petition was mailed using postage printed through
Stamps.com. However, according to the third party who delivered the petition to
the post office, the petition was deposited into a mail receptacle with no request
that a certified mail receipt be postmarked by a U.S. Postal Service employee. As
a result, petitioner is not entitled to any relief under section 301.7502-1(c)(2),
Proced. & Admin. Regs. Rather, to paraphrase section 301.7502-1(c)(1)(iii)(A),
Proced. & Admin. Regs., quoted above, because the U.S. Postal Service postmark
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[*10] on the envelope does not bear a date on or before March 3, 2014, the
petition is considered not timely filed regardless of when the petition was
deposited in the mail.
Conclusion
Because the petition was not delivered or deemed delivered to the Court
within the statutorily prescribed time, the Court lacks jurisdiction under sections
6213(a) and 7502 to redetermine the deficiency and penalty. Accordingly, we are
obliged to grant respondent’s motion to dismiss.
Despite our holding, petitioner may still be able to have his day in court by
paying the determined amount, filing a claim for refund, and then (if the claim is
denied or not acted on within six months) bringing a suit for refund in the
appropriate Federal court. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5
(1970); see also Weber v. Commissioner, 138 T.C. 348, 366-367 (2012).
To give effect to the foregoing,
An order granting respondent’s
motion and dismissing this case for
lack of jurisdiction will be entered.