T.C. Summary Opinion 2010-116
UNITED STATES TAX COURT
SHARON K. BELL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1420-10S. Filed August 17, 2010.
Sharon K. Bell, pro se.
John W. Strate and Timothy Froehle (specially recognized),
for respondent.
ARMEN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463.1 Pursuant to section 7463(b),
the decision to be entered is not reviewable by any other court,
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect when the petition was filed,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
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and this opinion shall not be treated as precedent for any other
case.
This matter is before the Court on respondent’s Motion To
Dismiss For Lack Of Jurisdiction, filed February 25, 2010.
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. 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 Oregon.
On October 7, 2009, respondent sent petitioner a notice of
deficiency. The notice of deficiency, which was sent to
petitioner by certified mail addressed to her at her last known
address, determined deficiencies in income taxes for 2006 and
2007 of $8,895 and $2,806, respectively, and accuracy-related
penalties under section 6662(a) for those 2 years of $1,779 and
$561.20, respectively. Petitioner received a copy of the notice
of deficiency on November 16, 2009.2
2
The record does not disclose whether petitioner received
the original notice of deficiency or, if not, what may have
happened to it. The record does disclose that on Nov. 13, 2009,
petitioner requested a copy of the notice of deficiency and that
on Nov. 16, 2009, a copy was faxed to her by respondent’s
Taxpayer Advocate Service.
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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 deficiency.” Also
included on the first page of the notice of deficiency was the
following statement: “Last Day to File a Petition With the
United States Tax Court: JAN 05, 2010”.3
On Tuesday, January 19, 2010, petitioner filed a petition
seeking a redetermination of the deficiencies and penalties
determined by respondent in the October 7, 2009 notice of
deficiency. The petition, which is dated “12/26/09”, arrived at
the Court by regular mail in an envelope bearing no postmark
date. Affixed to the envelope was a “stamp” printed by
petitioner on her personal computer using software furnished by
3
In addition, in fulfilling petitioner’s request for a
copy of the notice of deficiency, respondent’s Taxpayer Advocate
Service advised petitioner as follows:
In accordance with your request on NOV 13 2009, a
copy of the notice of deficiency, mailed to you by
certified mail on OCT 07 2009, is enclosed.
You are advised that there is no provision in the
law for the suspension of the 90-day period provided
for in the notice for petitioning the United States Tax
Court. The notice enclosed indicated the 90-day period
will expire on JAN 05 2010.
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stamps.com.4 This “stamp” reflects the “stamps.com” logo,
“$1.39” of “US Postage First-Class”, and a 5-digit number that
corresponds to petitioner’s ZIP Code. The “stamp” also includes
two strings of alphanumeric characters whose meaning is not
disclosed in the record. As previously mentioned, the “stamp”
bears no postmark and was not postmarked (or canceled) by the
U.S. Postal Service, nor does a Postal Service postmark appear
anywhere on the envelope itself.
As indicated, respondent filed a Motion To Dismiss For Lack
Of Jurisdiction on February 25, 2010. Petitioner filed a Notice
Of Objection on March 24, 2010.5 Respondent followed with a
Response on May 25, 2010. Thereafter, a hearing on respondent’s
motion was held in Fresno, California, on June 14, 2010, with
both parties appearing and presenting argument in support of
their respective positions.6
4
According to its Web site, stamps.com is “a revolutionary
software-based service that allows you to calculate and print
official USPS postage right from your PC.” http://stamps.com.
5
Petitioner mailed her Notice Of Objection again using a
“stamp” printed with her personal computer and stamps.com
software. Significantly, this “stamp” bears a “stamps.com”
postmark date of “MAR 19 2010”.
6
The hearing was held in Fresno, California, consistent
with petitioner’s Request For Place Of Trial. Upon inquiry by
the Court at calendar call, petitioner stated that she requested
Fresno, which is 700 miles from her home in Oregon, rather than
Portland, which is 50 miles from her home, because of parking
issues in Portland.
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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. 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). 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 is
deemed to be timely filed. 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).
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It is clear in the present case that respondent mailed the
notice of deficiency to petitioner on October 7, 2009. 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 by the
Commissioner of Postal Service Form 3877). The 90th day after
the date of mailing was Tuesday, January 5, 2010. However, the
petition was not received and filed by the Court until Tuesday,
January 19, 2010. Thus, the petition was not timely filed, and
respondent’s motion must be granted unless the petition is deemed
to have been timely filed by virtue of having been timely mailed.
As previously mentioned, the envelope in which the petition
was mailed to the Court did not bear any postmark, and both
parties have proceeded on the basis that extrinsic evidence
regarding the date of mailing is therefore admissible. Under the
circumstances of this case, we are content to follow the parties’
approach, although we do not purport to establish a general rule
applicable in all cases involving mailpieces bearing “stamps.com”
postage.
Petitioner’s Position
Petitioner’s position is succinctly set forth in her Notice
Of Objection:
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My original petition was filled out by me on December
25, 2009. It was mailed December 26, 2009.
At the hearing, petitioner was less certain that she mailed
the petition on December 26, but she was emphatic that she did so
shortly after Christmas.7 Petitioner offered only her testimony
to support her position.
Respondent’s Position
Respondent relies on Michael J. Fanning, a United States
Postal Service executive whose duties include management of the
mail irradiation program for U.S. Government mail in ZIP Codes
including that of the Tax Court in Washington, D.C. According to
Mr. Fanning, “First-Class Mail that is mailed from an origin
point in Salem, Oregon 97302 to a destination point in
Washington, D.C. has a three-day service standard”, meaning that
a mailpiece should be delivered on the third calendar day after
it is deposited with the Postal Service. However, mail that is
addressed to the Tax Court in Washington, D.C., is subjected to
an irradiation process (instituted following the anthrax attacks
in October 2001) that serves to add 3 additional calendar days to
the service standard.
7
Petitioner also did not explain why she dated the
petition “12/26/2009” if it was “filled out” on Christmas.
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Analysis
Because petitioner is the party invoking the Court’s
jurisdiction, she bears the burden of proving that the petition
was timely filed. See Maddox v. Commissioner, T.C. Memo. 2009-
241.
Petitioner relies exclusively on her testimony. However,
testimony that is not supported by documentary evidence or
otherwise need not be accepted as gospel. See Tokarski v.
Commissioner, 87 T.C. 74, 77 (1986). Here we decline to accept
petitioner’s unsupported testimony at face value based on the
totality of the record, which includes (inter alia) the
following:
(1) Petitioner’s failure to offer any record of the use of
her “stamps.com” account. In this regard, according to its Web
site,
Stamps.com automatically keeps a detailed record of the
postage you print. This makes it easy for you to
review your postage spending or to print a report for
your files.
Of course, the date that postage is printed is not
necessarily the date of mailing. This obvious truth was
recognized by petitioner at trial: “Well, * * * I can print it
but I can’t always get to a post office to get it mailed on that
date.” But the date that postage is printed would at least
constitute some evidence of the date of mailing.
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(2) The fact that the “stamp” affixed to the envelope
containing the petition bore no postmark, whereas the “stamp”
affixed to the envelope containing the Notice Of Objection did
bear a “stamps.com” postmark. This distinction suggests that
postmarking may be at the sender’s option.8
(3) Giving credence to the “stamps.com” postmark on the
envelope containing petitioner’s Notice of Objection, the elapsed
time between the mailing of that document on March 19, 2010, and
its receipt by the Court on March 24, 2010, is within the service
standard of the Postal Service as described by Mr. Fanning. This
provides a concrete example supporting his statement regarding
the 6-day service standard applicable to the instant case.
Conclusion
Because petitioner has failed to prove the date on which her
petition was mailed and further because her petition was not
delivered or deemed delivered to the Court within 90 days of the
date of mailing of the notice of deficiency, we hold that we lack
jurisdiction under sections 6213(a) and 7502; accordingly, we are
obliged to grant respondent’s motion to dismiss.9 Despite our
8
We should not be understood to imply that a “stamps.com”
postmark is entitled to the same dignity as a postmark made by
the United States Postal Service.
9
Petitioner could have avoided this outcome by going to a
U.S. Post Office and sending her petition by registered or
certified mail. As to registered mail, the date of registration
is treated as the postmark date; as to certified mail, the sender
can obtain a postmarked receipt that is evidence of timely
(continued...)
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holding, we observe that petitioner will still be able to have
her day in court by paying the determined amounts, filing a claim
for refund, and then (if the claim is denied or not acted on for
6 months) bringing a suit for refund in the appropriate Federal
court. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5
(1970).
To give effect to the foregoing,
An order granting
respondent’s motion and
dismissing this case for
lack of jurisdiction will
be entered.
9
(...continued)
mailing and hence timely filing. See sec. 7502(c); sec.
301.7502-1(c)(2), Proced. & Admin. Regs.