T.C. Memo. 2005-272
UNITED STATES TAX COURT
JOHN L. BOBBS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6465-04. Filed November 28, 2005.
John L. Bobbs, pro se.
Igor S. Drabkin, for respondent.
MEMORANDUM OPINION
MARVEL, Judge: This matter is before the Court on
respondent’s motion to dismiss for lack of jurisdiction on the
ground that the petition was not filed within the time prescribed
by sections 6213(a)1 and 7502.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at the time the petition was
(continued...)
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Background
Petitioner resided in Inglewood, California, when the
petition in this case was filed.
Petitioner claimed a charitable contribution deduction of
$14,800 on his 2001 income tax return.2 Following an
examination, respondent issued an examination report in which he
proposed to disallow $14,345 of petitioner’s reported
contributions. On November 4, 2003, respondent issued a revised
examination report in which he proposed to disallow only $10,545
of petitioner’s reported contributions.3 The letter accompanying
1
(...continued)
filed, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
2
Petitioner claimed deductions for the following charitable
contributions:
Donee organization Amount of contribution
Administrator of Peace and
Brotherhood Ministries (APB
Ministries) $10,500
True Vine Baptist Church 3,800
Marantha Community Church 455
Miscellaneous 45
Total 14,800
3
Respondent originally only allowed a deduction for the $455
paid to Marantha Community Church. Respondent received an
itemized list of contributions made to True Vine Baptist Church,
however, and he allowed the $3,800 deduction in the revised
examination report. Respondent disallowed the $10,500
contribution to APB Ministries because APB Ministries did not
respond to a request by respondent for additional documentation
regarding petitioner’s alleged contribution. Respondent also
disallowed the remaining $45 miscellaneous contribution(s) not
(continued...)
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the revised examination report informed petitioner that he had 15
days from November 4, 2003, the date of the letter, to request a
conference with the Appeals Office. The letter also informed
petitioner that respondent would issue a notice of deficiency if
petitioner did not request a conference within the 15-day period.
Petitioner did not submit a timely request for an Appeals
conference. Consequently, on January 6, 2004, respondent issued
a notice of deficiency (notice) to petitioner for 2001. The
notice was addressed to 814 North Market Street, Apartment 5,
Inglewood, CA 90302-5931.4
On February 20, 2004, petitioner mailed Form 12203, Request
for Appeals Review (Request), to respondent. On a date that does
not appear in the record, respondent forwarded petitioner’s
Request to this Court.5 By letter dated April 5, 2004,
3
(...continued)
specifically identified in the record.
4
Petitioner disputes receipt of the notice, but he admits
that he received other correspondence from respondent at the
North Market Street address. Petitioner’s Request and his
amended petition both show the North Market Street address as his
current address.
5
Respondent’s postage meter stamp on the envelope in which
the Request was forwarded reads Apr. 2, 2004. However,
respondent contends that the Request was mailed “On or about
April 8, 2004”. The U.S. Postal Service stamp is illegible. If
the Request took no more than the ordinary delivery time of 3
days for a mailing from California to Washington, D.C. (see
discussion, infra pp. 5-8), the latest date on which the Request
could have been mailed to arrive at the Court on Apr. 12, 2004,
was Apr. 9, 2004.
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respondent informed petitioner that his Request was untimely and
that he would have to petition the Tax Court to dispute his tax
liability. On April 12, 2004, we filed petitioner’s Request,
which was forwarded to the Court by respondent, as an imperfect
petition. We subsequently ordered petitioner to file an amended
petition with the required filing fee by June 1, 2004. On May
28, 2004, we received and filed petitioner’s amended petition.
On January 24, 2005, we received and filed respondent’s
motion to dismiss for lack of jurisdiction, which alleged that
petitioner’s petition was not filed within the 90-day period
prescribed in sections 6213(a) and 7502. In support of the
motion, respondent attached a postmarked copy of the certified
mailing list bearing petitioner’s name and address, the date on
which the notice of deficiency was mailed to petitioner, and the
article tracking number of the notice.
On February 18, 2005, we filed petitioner’s response in
opposition to respondent’s motion. Petitioner contends that he
did not receive the notice of deficiency dated January 6, 2004.
Petitioner also argues that he timely mailed his Request to the
Internal Revenue Service.
Discussion
Our jurisdiction to redetermine a deficiency depends on the
issuance of a valid notice of deficiency and on a timely filed
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petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27
(1989).
Notice of Deficiency
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. It is sufficient for
jurisdictional purposes if the Commissioner mails the notice of
deficiency to the taxpayer at the taxpayer’s “last known
address”. Sec. 6212(b); Frieling v. Commissioner, 81 T.C. 42, 52
(1983). If a notice of deficiency is mailed to the taxpayer at
the taxpayer’s last known address, actual receipt of the notice
is immaterial. King v. Commissioner, 857 F.2d 676, 679 (9th Cir.
1988), affg. 88 T.C. 1042 (1987); DeWelles v. United States, 378
F.2d 37, 39 (9th Cir. 1967). The taxpayer, in turn, has 90 days
(or 150 days if the notice is addressed to a person outside of
the United States) from the date that the notice of deficiency is
mailed to file a petition in this Court for a redetermination of
the deficiency. Sec. 6213(a). Under section 7502, a timely
mailed petition will be treated as though it were timely filed.
Respondent bears the burden of proving by competent and
persuasive evidence that the notice of deficiency was properly
mailed. Coleman v. Commissioner, 94 T.C. 82, 90 (1990); August
v. Commissioner, 54 T.C. 1535, 1536-1537 (1970). The act of
mailing may be proven by documentary evidence of mailing or by
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evidence of respondent’s mailing practices corroborated by direct
testimony. Coleman v. Commissioner, supra at 90. A U.S. Postal
Service Form 3877, Acceptance of Registered, Insured, C.O.D. and
Certified Mail, reflecting Postal Service receipt represents
direct documentary evidence of the date and fact of mailing.
Id.; Magazine v. Commissioner, 89 T.C. 321, 324, 327 (1987).
Where the existence of the notice of deficiency is not in
dispute, a properly completed Form 3877 by itself is sufficient,
absent evidence to the contrary, to establish that the notice was
properly mailed to a taxpayer. United States v. Zolla, 724 F.2d
808, 810 (9th Cir. 1984); Coleman v. Commissioner, supra at 91.
In this case, respondent produced a copy of the certified
mailing list for January 6, 2004, which bore a date stamp from
the Los Angeles Post Office of January 6, 2004. The list shows
petitioner’s name, North Market Street address, taxpayer
identification number, and the article tracking number of the
notice of deficiency. The certified mailing list submitted by
respondent is similar to, and appears to perform the same
function as, Form 3877. See Stein v. Commissioner, T.C. Memo.
1990-378. However, in this case the certified mailing list is
incomplete because it does not contain any indication of the
number of items received by the Los Angeles Post Office and is
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not signed or initialed by a U.S. Postal Service employee.6
Thus, the certified mailing list, in and of itself, is
insufficient to provide respondent with the presumption of
mailing. Massie v. Commissioner, T.C. Memo. 1995-173, affd.
without published opinion 82 F.3d 423 (9th Cir. 1996); Wheat v.
Commissioner, T.C. Memo. 1992-268. Respondent’s failure to
obtain the U.S. Postal Service clerk’s initials on the certified
mailing list and to have the clerk identify on the certified
mailing list how many pieces of mail the U.S. Postal Service
received is an “inexactitude which is significant enough to
render the presumption inapplicable.” Wheat v. Commissioner,
supra; see also Coleman v. Commissioner, supra at 92. Respondent
may still prevail, however, if the evidence of mailing is
otherwise sufficient. Wheat v. Commissioner, supra.
Although an incomplete certified mailing list that does not
contain all of the information required by Form 3877 is
insufficient to create a presumption of proper mailing, it
nevertheless has some probative value. See Massie v.
Commissioner, supra. The certified mailing list in this case
contains a U.S. Postal Service date stamp of January 6, 2004.
The address recorded on the certified mailing list is the same
address that petitioner has used on all of his correspondence
6
The total number of pieces listed by sender shows seven,
but the spaces for the number of pieces received by the post
office and the postmaster’s name are blank.
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with respondent. Petitioner has not argued that the Market
Street address was not his last known address,7 nor has he argued
that respondent failed to follow his established mailing
procedures. The preponderance of the evidence supports a finding
that respondent mailed the notice of deficiency to petitioner at
his last known address on January 6, 2004, and we so find.
Timely Filed Petition
Petitioner also argues that his petition was filed timely
because he mailed his Request to respondent “within the 90 Day
Unit period for appeal”,8 and we accepted and filed the Request
7
A taxpayer’s last known address is either the address
listed on his most recently filed Federal income tax return or
another address, if taxpayer notifies Commissioner of a change of
address. Sec. 301.6212-2(a), Proced. & Admin. Regs.; see also
Leask v. Commissioner, T.C. Memo. 1989-347. Petitioner’s most
recently filed tax return as of Jan. 6, 2004, is not in the
record, and there is no evidence that petitioner communicated an
alternate address to respondent.
8
Petitioner argues, alternatively, that his Request was
mailed timely to respondent and should have been administratively
reviewed by respondent. Respondent’s letter of Nov. 4, 2003,
stated that petitioner had 15 days to request an Appeals
conference with an Appeals officer. Petitioner contends that he
did not receive the Nov. 4, 2003, letter until December. Even if
we assume that petitioner received the letter on Dec. 31, 2003,
his Request mailed on Feb. 20, 2004, was sent well outside the
allotted 15-day period for appeal. Therefore, petitioner did not
timely mail his Request to respondent.
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as an imperfect petition9 on April 12, 2004.10
A petition is timely filed if it is received by the Court
within 90 days after the notice is mailed. Sec. 6213(a). If the
last day of the 90-day period falls on a Saturday, Sunday, or a
legal holiday in the District of Columbia, the last day of the
90-day period is the first business day thereafter. Id.; sec.
301.6213-1(a)(1), Proced. & Admin. Regs. The notice in this case
was mailed on January 6, 2004. The 90-day period for timely
filing a petition with the Court expired on April 5, 2004, which
date was not a Saturday, Sunday, or legal holiday in the District
of Columbia.
If the petition is properly addressed, with postage prepaid,
and is postmarked within the applicable 90-day period in
accordance with section 7502(a), the petition will be considered
timely even if it is not received by the Court until after the
90-day period. Sec. 7502(a). In this case, petitioner’s mailing
of the Request to respondent was not properly addressed.
Moreover, even if we assume that section 7502 may be applied to
respondent’s remailing of the Request to the Court, the criteria
of section 7502 were not met by the remailing because we cannot
9
This Court has been liberal in filing documents submitted
by taxpayers as petitions. See Eiges v. Commissioner, 101 T.C.
61, 68 (1993); Castaldo v. Commissioner, 63 T.C. 285, 287 (1974).
10
We received petitioner’s Request 97 days after respondent
mailed the notice of deficiency.
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ascertain whether the mailing was postmarked within the
applicable 90-day period.
If the postmark is made by the U.S. Postal Service and is
illegible, the person who is required to file the document bears
the burden of proving the date the postmark was made. Sec.
301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs. If the postmark
is made other than by the U.S. Postal Service and the document is
delivered to the Court untimely, then the postmark must bear a
legible date on or before the last day of the filing period, and
the document must have been received at or before the time when
the same class of mail would ordinarily be received if postmarked
from the same point of origin on the last day of the period
prescribed for filing. Sec. 301.7502-1(c)(1)(iii)(B)(1), Proced.
& Admin. Regs. If a mailing bears both a U.S. Postal Service
postmark and a postmark made other than by the U.S. Postal
Service, the postmark that is not a U.S. Postal Service postmark
is disregarded in applying the regulations regarding timely
mailing and filing. Sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. &
Admin. Regs.11
11
Sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs.,
provides as follows:
(3) U.S. and non-U.S. postmarks.--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
(continued...)
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In this case, the envelope in which respondent mailed
petitioner’s Request to the Court bears both a postage meter
postmark and a U.S. Postal Service postmark. Consequently, we
may assume that we are required by sec. 301.7502-
1(c)(1)(iii)(B)(3), Proced. & Admin. Regs., to apply the rule of
sec. 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.12
Section 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.,
provides, in pertinent part, as follows:
(iii) Postmark.--(A) U.S. Postal Service
postmark.--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, or the last day of the
period, prescribed for filing the document or making
the payment. If the postmark does not bear a date on
or before the last date, or the last day of the period,
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,
or the last day of the period, prescribed for filing
the document or making the payment. * * * If the
postmark on the envelope is made by the U.S. Postal
11
(...continued)
this paragraph (c)(1)(iii)(B) will be determined solely
by applying the rule of paragraph (c)(1)(iii)(A) of
this section.
12
Even if we proceeded on the alternative assumption that a
private postmark, when accompanied by an illegible U.S. postmark,
is not disregarded, we would reach the same result, for
petitioner has offered no proof of the date on which the Internal
Revenue Service actually deposited the Request in the mail, much
less proof of the cause of a delay in transmission of the mail if
there were a timely deposit. See sec. 301.7502-1(c)(1)(iii)
(B)(2), Proced. & Admin. Regs.
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Service but is not legible, the person who is required
to file the document or make the payment has the burden
of proving the date that the postmark was made.
[Emphasis supplied.]
As the person who is required to file a timely petition,
petitioner had the burden of proving the date on which the U.S.
Postal Service postmark was made. Petitioner failed to do so.
Petitioner simply argues that the forwarding of the Request by
respondent to the Court caused the filing to be untimely and that
his case should not be dismissed because of respondent’s failure
to act promptly.
It is unfortunate that respondent did not exercise greater
care and diligence to insure that petitioner’s Request was
delivered timely to this Court. However, it is petitioner’s
responsibility to file his petition properly; respondent has no
burden to forward a misaddressed petition to the Court. Axe v.
Commissioner, 58 T.C. 256, 259 (1972). We cannot expand our
jurisdiction beyond the 90-day prescribed period, “whatever the
equities of a particular case may be and regardless of the cause
for * * * [the petition] not being filed within the required
period.” Id.
Because petitioner has not proven the date on which the
illegible U.S. Postal Service postmark was made and because his
petition was not delivered or deemed delivered to the Court
within 90 days of the date of the notice of deficiency, we hold
that we do not have jurisdiction under sections 6213(a) and 7502.
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Consequently, we shall grant respondent’s motion to dismiss for
lack of jurisdiction. We note, however, that despite our holding
here, petitioner will still be able to have his day in court by
paying the deficiency and bringing a suit for refund in the
appropriate Federal court.
An appropriate order of dismissal
for lack of jurisdiction will be
entered.