T.C. Memo. 2011-258
UNITED STATES TAX COURT
WILLIAM J. QUARTERMAN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22007-10. Filed November 1, 2011.
P mailed his petition using the registered airmail
service of a foreign country on Sept. 27, 2010, the
145th day after the mailing of a notice of deficiency
to an address in the foreign country where P resides.
The envelope in which the petition was mailed to the
Court, which did not bear a postmark made by the U.S.
Postal Service, entered the domestic mail service of
the United States no later than Oct. 4, 2010, the last
day of the filing period. The petition was received by
the Court early the next morning.
Held: The petition was timely filed, and the
Court has jurisdiction to hear P’s case.
William J. Quarterman, pro se.
Anne M. Craig, for respondent.
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MEMORANDUM OPINION
ARMEN, Special Trial Judge: By Order Of Dismissal For Lack
Of Jurisdiction entered June 24, 2011, the Court dismissed this
case on the ground that the petition was not timely filed. The
case is now before us on petitioner’s motion filed July 19, 2011,
to vacate the order of dismissal.
At the time that the petition was filed, petitioner resided
in the Federal Republic of Germany.
Background
By notice dated May 4, 2010, respondent determined
deficiencies in, and accuracy-related penalties on, petitioner’s
Federal income taxes as follows:
Sec. 6662(a)
Year Deficiency Penalty
2006 $4,626.00 $ 925.20
2007 5,105.00 1,021.00
2008 6,700.00 1,340.00
The notice of deficiency was addressed to petitioner in
Wiernsheim, Germany. The first page of the notice states as
follows: “Last Date to File a Petition With the United States
Tax Court: Oct 01, 2010”. That date, which was a Friday, was the
150th day after May 4, 2010, the date of the notice.
The notice of deficiency was sent to petitioner by
registered mail. Although the notice was dated May 4, 2010, it
was not mailed until the following day, May 5, 2010. The 150th
day after May 5, 2010, was October 2, 2010, which was a Saturday.
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Petitioner received the notice of deficiency at the address
to which it was sent. Thereafter, petitioner mailed a petition
to this Court seeking a redetermination of the deficiencies and
penalties determined by respondent in the notice. The petition,
which was delivered to the Court by the U.S. Postal Service, was
received by the Court’s intake section at 8:04 a.m. on Tuesday,
October 5, 2010, and filed that day.
The envelope in which the petition was mailed (hereinafter,
the envelope) indicates that it originated in Germany and was
sent by Deutsche Post registered airmail. The envelope bears a
clearly legible Deutsche Post postmark date of September 27,
2010. The Deutsche Post registered mail sticker on the front of
the envelope includes a bar code, a mobile tag, and a 13-
character alphanumeric identifier (hereinafter, the tracking
number). The envelope does not bear a U.S. Postal Service
postmark.
In the petition, petitioner expressly references the May 4,
2010 notice of deficiency, and he attached a complete copy of the
notice to his petition as an exhibit.
On November 8, 2010, respondent filed a motion to dismiss
for lack of jurisdiction on the ground that the petition was not
filed within the time prescribed by law; thereafter respondent
supplemented his motion and provided a U.S. Postal Service Form
3877, certified mail list, demonstrating the mailing of the
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notice of deficiency on May 5, 2010. The Court then directed
petitioner to respond to respondent’s motion. However, no
objection or other response was received. Accordingly, on June
24, 2011, the Court entered an Order Of Dismissal For Lack Of
Jurisdiction, granting respondent’s motion, as supplemented, and
dismissing the case for lack of a timely-filed petition.
On July 19, 2011, petitioner filed his motion to vacate the
Court’s order of dismissal. Petitioner attached to his motion a
copy of a reply dated November 29, 2010, objecting to the
granting of respondent’s motion to dismiss that petitioner had
mailed to the Court from Germany on November 29, 2010.
(Unfortunately, as previously stated, petitioner’s reply was
never received by the Court.)
The aforementioned reply includes a naked allegation that
the tracking number appearing on the envelope “was traced to New
York on 29 September 2010.” This allegation prompted the Court
to issue an Order dated July 26, 2011, that directed petitioner
to supplement his motion to vacate and provide supporting
documentation.
On August 30, 2011, petitioner filed a Supplement to his
motion to vacate, attaching as an exhibit a personal letter dated
August 9, 2011, addressed to him from a representative of
Deutsche Post. The letter references a telephone conversation
with petitioner’s wife and goes on to state that the envelope was
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dispatched from the international mail center in Frankfurt1 on
September 28, 2010, and received by the U.S. Postal Service in
New York on September 29, 2010.
On September 19, 2011, respondent filed an Objection to
petitioner’s motion, as supplemented. Respondent objects on
grounds of hearsay to that part of the August 9, 2011 Deutsche
Post letter regarding receipt by the U.S. Postal Service of the
envelope in New York on September 29, 2010. Respondent also
cites Boultbee v. Commissioner, T.C. Memo. 2011-11, a case
involving a petition sent to the Court by registered airmail that
originated in Canada. There we treated U.S. Postal Service Track
& Confirm data as “tantamount to, and/or the functional
equivalent of, a U.S. Postal Service postmark.”2 Respondent
distinguishes Boultbee on the ground that Track & Confirm data
from the U.S. Postal Service in the instant case does not
demonstrate when the envelope entered the domestic mail service
of the United States.3
1
Presumably, Frankfurt am Main and not Frankfurt an der
Oder.
2
Respondent notes in his Objection that he “disagrees with
the Court’s holding in Boultbee to the extent the Court in that
case did not require the United States Postal Service postmark to
be on the cover in which the petition was mailed.”
3
The online U.S. Postal Service Track & Confirm feature is
available at http://www.usps.com/. Although that feature is
responsive to the Deutsche Post tracking number, no relevant
information is provided.
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Discussion
The Tax Court is a court of limited jurisdiction, see sec.
7442, and we may exercise our jurisdiction only to the extent
authorized by Congress.4 Naftel v. Commissioner, 85 T.C. 527, 529
(1985). This Court’s jurisdiction to redetermine a deficiency
depends on the issuance of a valid notice of deficiency and the
timely filing of a 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 in this
Court for a redetermination of the deficiency. Sec. 6213(a).
Although the notice of deficiency is dated May 4, 2010,
respondent readily admits (and the evidence clearly demonstrates)
that the notice was not mailed until the following day, i.e., May
5, 2010. Because the notice was addressed to a person outside of
the United States, the 150-day filing period applies. See sec.
6213(a). The 150th day after May 5, 2010, was October 2, 2010.
Because this date was a Saturday, the time to file was extended to
4
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended; all Rule
references are to the Tax Court Rules of Practice and Procedure.
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Monday, October 4, 2010, which was not a legal holiday in the
District of Columbia.5 See sec. 7503; Rule 25(b). However, as
previously stated, the petition was not received by the Court
until Tuesday, October 5, 2010, at 8:04 a.m.
By virtue of section 7502(a), a petition that is timely
mailed is, in certain circumstances, deemed to be timely filed.
Specifically, section 7502(a)(1) provides that “the date of the
United States postmark stamped on the cover in which such * * *
document * * * is mailed shall be deemed to be the date of
delivery”. Thus, the U.S. postmark date appearing on the envelope
containing a petition must be timely; that is, the postmark date
must fall within the applicable 90-day or 150-day period.
Although timely mailing is generally determined by the U.S. Postal
Service postmark date, see sec. 7502(a); sec. 301.7502-1(c)(1),
Proced. & Admin. Regs., extrinsic evidence is admissible if a U.S.
Postal Service postmark date is either illegible or missing, see
Mason v. Commissioner, 68 T.C. 354 (1977); Sylvan v. Commissioner,
65 T.C. 548 (1975).
The provisions of section 7502 generally contemplate that an
envelope is deposited with the domestic mail service of the U.S.
5
The statement in the notice of deficiency that Oct. 1,
2010, was the last day to file a petition was obviously based on
the assumption that the notice would be mailed on May 4, 2010.
Because the notice was not mailed on that day, the statement is
inaccurate and of no consequence.
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Postal Service.6 Sec. 7502(a)(2)(B); cf. sec. 7502(f) regarding
private delivery services, such as DHL, FedEx, and UPS. A
document is deposited in the mail in the U.S. when it is deposited
with the domestic mail service of the United States Postal
Service. Sec. 301.7502-1(c)(1)(ii), Proced. & Admin. Regs. With
regard to foreign registered mail, section 752.13 of the U.S.
Postal Service International Mail Manual states as follows: “All
mail registered by the country of origin must be handled in the
domestic First-Class Mail mailstream from the exchange office to
the office of delivery.” Thus, once foreign registered mail
arrives at the exchange office in the United States, such mail is
considered to have been deposited with the domestic mail service
of the U.S. Postal Service for eventual delivery to its
destination address in the United States.
Petitioner mailed his petition from Germany using the
registered airmail service of Deutsche Post on September 27, 2010,
the 145th day after the notice of deficiency was mailed to him. A
Deutsche Post postmark of September 27, 2010, appears on the front
of the envelope. No U.S. Postal Service postmark is stamped on
6
Sec. 7502(b) provides that sec. 7502 “shall apply in the
case of postmarks not made by the United States Postal Service
only if and to the extent provided by regulations”. The
regulations provide at sec. 301.7502-1(c)(1)(ii), Proced. &
Admin. Regs., that “Section 7502 does not apply to any document
* * * that is deposited with the mail service of any other
country.” In other words, foreign postmarks, even those of a
sovereign postal service, are not controlling.
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the envelope, nor does the U.S. Postal Service Track & Confirm
feature reveal when the envelope was received by the Postal
Service exchange office in the United States. However, in view of
the fact that the envelope was clocked in by the Court’s Intake
Section at 8:04 a.m. on Tuesday, October 5, 2010, it follows
perforce (and not by conjecture or through evidence aliunde) that
the petition must have been deposited with the domestic mail
service of the U.S. Postal Service no later than Monday, October
4, 2010.7 See Sylvan v. Commissioner, supra at 551 (“It is
impossible for an item to arrive via mail early in the morning on
the same day it is mailed”); cf. Lundy v. Commissioner, T.C. Memo.
1997-14.8
7
See Boultbee v. Commissioner, T.C. Memo. 2011-11,
distinguishing cases in which the petitions, all mailed from
foreign countries, did not enter the domestic mail service of the
U.S. before the expiration of the 150-day filing period.
8
Lundy involved a notice of deficiency that lacked a date
sufficient to advise the taxpayer of the 90-day filing deadline.
As relevant to the instant case, we stated as follows:
The notice of deficiency was delivered by the U.S.
Postal Service to petitioner on Saturday, March 30,
1996. Given that the date of delivery is known, it
follows that the notice of deficiency must have been
mailed at least one day prior to its delivery to, and
receipt by, petitioner. When petitioner received the
notice of deficiency on March 30, 1996 (delivered by
the U.S. Postal Service) it would have been
unreasonable for him to assume a mailing date later
than March 29, 1996, the date prior to delivery. * * *
[Emphasis added.]
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In sum, given the absence of a U.S. Postal Service postmark,
and in view of the fact that the record demonstrates that the
envelope was deposited with the domestic mail service of this
country’s postal service no later than the last day of the
relevant filing period, we hold that the petition is deemed to
have been timely filed and that we therefore have jurisdiction to
proceed with this case.
To give effect to the foregoing,
An order will be issued
granting petitioner’s motion to
vacate, as supplemented.