T.C. Memo. 2010-220
UNITED STATES TAX COURT
MICHAEL W. AND LINDA M. VAN BRUNT, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26859-09. Filed October 7, 2010.
Michael B. Nelson and David M. Fogel, for petitioners.
Kimberly A. Kazda, for respondent.
MEMORANDUM OPINION
VASQUEZ, 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 section 6213(a) or section 7502.1
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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Background
At the time the petition was filed, petitioners resided in
California.
On May 12, 2009, respondent mailed a notice of deficiency to
petitioners for tax years 2005, 2006, and 2007. Petitioners
filed the petition on November 12, 2009, 184 days after the
notice of deficiency was mailed. On February 18, 2010,
respondent filed a motion to dismiss for lack of jurisdiction
because the petition was not filed or postmarked within the 90-
day period after the notice of deficiency was mailed. See secs.
6213(a), 7502. Petitioners argue that they timely mailed the
petition on August 10, 2009, but the Court received it late
because the U.S. Postal Service (USPS) severely damaged the
envelope in which the petition was mailed, rendering it
undeliverable. On November 3, 2009, nearly 3 months after the
envelope was mailed, it was returned to petitioners’ attorney,
who then promptly mailed a new copy of the petition to the Court.
A hearing on this matter was held on May 10, 2010, in San
Francisco, California.
At the hearing petitioners submitted two affidavits to
support their arguments. One was an affidavit from petitioners’
attorney, Michael Nelson (Mr. Nelson), and the other was an
affidavit of Mukesh Patel (Mr. Patel), the coowner of the United
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Parcel Service, Inc. (UPS) store in San Ramon, California, from
which Mr. Nelson mailed the petition.
According to Mr. Nelson’s affidavit, which we find credible,
on the morning of August 10, 2009, he took the envelope
containing the petition to the UPS store, affixed a properly
addressed certified mailing label to the envelope,2 and paid
$5.88 in cash for proper postage.3 He then left the envelope
with a UPS employee with the understanding that it would be
postmarked the same day. Mr. Nelson recorded this transaction in
the contemporaneously updated postage log that he maintains for
all client mailings.4 Mr. Patel’s affidavit, which we also find
credible, states that Mr. Nelson delivered the envelope to the
UPS store on August 10, 2009, and that the USPS picked up the
envelope the same day.
On November 3, 2009, the USPS returned the envelope to Mr.
Nelson in severely damaged condition. The mailing label that had
been attached to the envelope had been torn off during processing
2
According to Mr. Nelson’s affidavit, he addressed the
envelope to: Office of the Clerk of the Court, United States Tax
Court, 400 Second Street, N.W., Washington, DC 20217.
3
Petitioners’ attorney was unable to find the certified
mail receipt.
4
Mr. Nelson tracks the following data in his postage log:
(1) Date of mailing; (2) client; (3) description of the item
mailed; (4) method of postage; and (5) shipping cost. According
to the entry dated Aug. 10, 2009, Mr. Nelson mailed the petition
in this case via certified mail and paid $5.88 for postage.
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by the USPS. The right half of the envelope, where the postmark
typically appears, had been completely torn off. Mr. Nelson’s
return address label, however, which was affixed to the upper
lefthand portion of the envelope, was not damaged. The portion
of the envelope that was returned to Mr. Nelson was stamped with
the following notation: “RETURNED FOR BETTER ADDRESS”. What
remained of the envelope and its contents was encased in a clear
plastic wrap with a red sticker that states: “WE’RE SORRY THAT
YOUR ARTICLE WAS DAMAGED DURING PROCESSING.” The petition, which
is dated August 9, 2009, was nearly torn in half.
In a letter dated November 4, 2009, Tracy Liu (Ms. Liu), a
USPS employee, apologized for the damage caused during processing
and explained that the envelope was returned to Mr. Nelson for a
“better address”.
On November 6, 2009, Mr. Nelson mailed a new copy of the
petition along with the original damaged envelope and its
contents to the Court. As stated above, the petition was filed
on November 12, 2009, 184 days after the notice of deficiency was
mailed.
Discussion
The Tax Court is a court of limited jurisdiction, and we may
exercise our jurisdiction only to the extent authorized by
Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). This
Court’s jurisdiction to redetermine a deficiency depends on the
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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 of the United States) from the date that the notice of
deficiency is mailed 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 to prove the date of mailing if a postmark date is
illegible or destroyed, see Mason v. Commissioner, 68 T.C. 354,
355-356 (1977); Sylvan v. Commissioner, 65 T.C. 548 (1975);
Maddox v. Commissioner, T.C. Memo. 2009-241. The burden is on
the taxpayer to produce sufficient credible evidence that the
petition was timely mailed. See Mason v. Commissioner, supra at
356; Maddox v. Commissioner, supra; Perry Segura & Associates,
Inc. v. Commissioner, T.C. Memo. 1975-80; see also sec. 301.7502-
1(c)(1)(iii)(A), Proced. & Admin. Regs. (“If the postmark on the
envelope is made by the U.S. Postal Service but is not legible,
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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.”). In determining whether the “timely mailing is timely
filing” rule applies, we look to the date the original envelope
was mailed. See Price v. Commissioner, 76 T.C. 389, 391 (1981);
Estate of Cranor v. Commissioner, T.C. Memo. 2001-27 (“section
7502(a) does not require that the qualifying envelope (i.e., the
envelope which was timely mailed, properly addressed, and bore
the proper postage) be the envelope in which the petition is
received; nor does section 7502(a) bar application of the ‘timely
mailing is timely filing’ rule if a petition contained in a
properly addressed envelope (that otherwise meets the above
requirements) is returned to, and remailed by, the taxpayer.”).
The evidence establishes that Mr. Nelson delivered the
envelope containing the petition to the UPS store on the morning
of August 10, 2009, for pickup by the USPS later that day. Mr.
Patel confirmed that Mr. Nelson left the envelope at the UPS
store in the morning and the USPS picked it up later in the day
on August 10, 2009. Mr. Nelson’s postage log, which we find
credible, also provides contemporaneously recorded details (e.g.,
date of mailing, method of postage, cost) establishing that Mr.
Nelson mailed the petition on August 10, 2009. Finally, we note
that the original petition was dated August 9, 2009, exactly 1
day before the deadline for timely filing.
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In light of all the evidence in the record, we find that
petitioners have established that the envelope was postmarked on
August 10, 2009, thus timely filed. Consequently, respondent’s
motion will be denied.
To reflect the foregoing,
An order will be issued
denying respondent’s motion
to dismiss for lack of
jurisdiction.