Crook v. CIR ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 27, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
__________________________ Clerk of Court
KEVIN D. CROOK,
Petitioner - Appellant,
v. No. 04-9015
(U.S. Tax Court)
COMMISSIONER OF INTERNAL (No. 6260-04)
REVENUE SERVICE,
Respondent - Appellee.
____________________________
ORDER AND JUDGMENT *
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Kevin D. Crook petitioned the United States Tax Court for redetermination
*
This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
of deficiencies in income taxes asserted by the Commissioner of Internal Revenue
(the Commissioner) for the year 2000. The court found Crook’s petition had not
been timely filed and dismissed the case for lack of jurisdiction. Exercising
jurisdiction under 26 U.S.C. § 7482(a)(1), we affirm.
I. Background
On August 28, 2003, the Commissioner sent Crook a notice of deficiency
for the 2000 tax year by certified mail. 1 On April 6, 2004, the court received a
letter from Crook, dated March 31, 2004, in which Crook inquired as to the status
of his petition for redetermination. The envelope containing the letter bore a
postmark of April 1, 2004.
The tax court filed the letter as a petition for redetermination of the
deficiency. The Commissioner moved to dismiss the case for lack of jurisdiction
because the petition was not timely filed. In response, Crook asserted he placed a
petition in the prison mail system on November 12, 2003, and thus had timely
filed.
The tax court granted the Commissioner’s motion. The court found the
Commissioner had mailed the notice of deficiency on August 28, 2003, but
The notice was mailed to Crook’s last known address in Phoenix, Arizona.
1
Crook was incarcerated in New Mexico at the time the notice was mailed. He concedes
he received the notice “[s]ome time in late September.” (Appellant’s Brief at 6.) Crook
remained incarcerated during all times relevant to this matter.
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Crook’s petition was not filed until April 6, 2004, well beyond the ninety-day
period prescribed in 26 U.S.C. § 6213(a). In response to Crook’s assertion he had
timely mailed a petition, the court stated:
A search of the Court’s records has been conducted; however, we
were unable to locate any correspondence from petitioner prior to the
petition that was filed in this case on April 6, 2004. Moreover,
petitioner has not offered any proof, such as a receipt for certified
mail, showing that he mailed a petition to the Court during the period
in question.
(R. Doc. 13 at 2.)
The court found Crook’s petition had not been filed within the statutory
time period, and dismissed the case for lack of jurisdiction. Crook timely filed a
notice of appeal from the tax court’s order of dismissal.
II. Discussion
“Findings of fact made by the United States Tax Court are reviewed by a
clearly erroneous standard.” Estate of Holl v. Comm’r, 967 F.2d 1437, 1438 (10th
Cir. 1992). If on appeal the court is asked to reconsider a question of law, the
applicable standard is a de novo review.” Id. The question of whether the tax
court correctly dismissed Crook’s petition for lack of jurisdiction is a mixed
question of law and fact.
The timely filing of a petition for redetermination of a deficiency is
jurisdictional. Section 6213(a) of the Internal Revenue Code requires the
taxpayer to file a petition “[w]ithin 90 days . . . after the notice of deficiency . . .
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is mailed . . . .” 26 U.S.C. § 6213(a). “The Tax Court shall have no jurisdiction .
. . unless a timely petition for a redetermination of the deficiency has been filed . .
. .” Id. The tax court cannot extend the time for filing. T AX C T . R. 25(c).
Failure to file within the prescribed period requires the petition be dismissed for
lack of jurisdiction. Armstrong v. Comm’r, 15 F.3d 970, 973 n.2 (10th Cir. 1994);
Foster v. Comm’r, 445 F.2d 799, 800 (10th Cir. 1971).
As a general rule, a petition is considered filed when it is received by the
tax court. Sylvan v. Comm’r, 65 T.C. 548, 550 (1975). However, Crook argues
he is entitled to the benefit of the prison mailbox rule, pursuant to which
timeliness would be determined by the date upon which he gave his petition to the
prison authorities for mailing to the court (November 12, 2003), even though the
petition was never received by the tax court.
In Houston v. Lack, the Supreme Court ruled that a prison inmate’s notice
of appeal in a habeas corpus case was deemed filed at the time he delivered it to
prison authorities for forwarding to the court. 487 U.S. 266, 270, 276 (1988).
The prison mailbox rule was subsequently extended and codified in Rules 4(c)(1)
and 25(a)(2)(C) of the Federal Rules of Appellate Procedure. While Rule 4
governs the filing of a notice of appeal by an inmate, Rule 25 applies to “a paper
filed by an inmate confined in an institution.” F ED . R. A PP . P. 25(a)(2)(C).
Despite the broad scope of Rule 25, both rules apply only to the courts of appeals,
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F ED . R. A PP . P. 1(a)(1), not the United States Tax Court.
We acknowledge the prison mailbox rule has been extended to apply to the
filing of many civil matters by prison inmates, including pleadings in district
court. Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (applying rule to
filing of objections to magistrate’s report); see also Fernandez v. Artuz, 402 F.3d
111, 113 n.2 (2d Cir.) (citing cases applying rule to various pleadings), cert.
denied sub nom, 126 S.Ct. 79 (2005); Miller v. Benson, 51 F.3d 166, 169 n.2 (8th
Cir. 1995) (same); Garvey v. Vaughn, 993 F.2d 776, 781 n.13 (11th Cir. 1993)
(same). However, the prison mailbox rule does not apply when there is “a
specific statutory or regulatory regime” governing the filing at issue. Longenette
v. Krusing, 322 F.3d 758, 763 (3d Cir. 2003).
In this case, both a statute and a rule govern filing in the United States Tax
Court. Rule 22 governs the filing of documents with the tax court. The final
sentence of that rule sets forth the tax court’s equivalent of the mailbox rule: “For
the circumstances under which timely mailed papers will be treated as having
been timely filed, see [26 U.S.C. § 7502].” T AX C T . R. 22.
Section 7502(a)(1) of the Internal Revenue Code deems the date of the
postmark to be the date of delivery. 2 26 U.S.C. § 7502(a)(1); see 26 C.F.R.
2
26 U.S.C. § 7502(a) provides in pertinent part:
(a) General rule. —
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301.7502-1(a). The petition must have been mailed, postage prepaid, within the
statutory period, and must have been received by the entity to which it was
mailed. 26 U.S.C. § 7502(a)(1); 26 C.F.R. 301.7502-1(c). “This ‘mailbox rule,’
both by its terms and as revealed in the legislative history, applies only in cases
where the document is actually received . . . after the statutory period.” Miller v.
United States, 784 F.2d 728, 730 (6th Cir. 1986).
Section 7502(c)(1) provides a second method of proving delivery, by using
registered mail. If a document is sent by registered mail, the registration shall be
(1) Date of delivery.-- If any . . . document required to be filed . . . within a
prescribed period or on or before a prescribed date under authority of any
provision of the internal revenue laws is, after such period or such date,
delivered by United States mail to the agency, officer, or office with which
such . . . document is required to be filed . . ., 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 . . . .
(2) Mailing requirements.-- This subsection shall apply only if--
(A) the postmark date falls within the prescribed period or on or before the
prescribed date--
(I) for the filing . . . of the . . . document, or
(ii) for making the payment . . ., and
(B) the . . . document . . . was, within the time prescribed in subparagraph
(A), deposited in the mail in the United States in an envelope or other
appropriate wrapper, postage prepaid, properly addressed to the agency,
officer, or office with which the . . . document is required to be filed . . . .
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prima facie evidence that the document was delivered to the office to which it
was addressed, and the postmark shall be deemed the date of delivery. 26 U.S.C.
§ 7502(c)(1). 3 This second method of proof is necessary in those situations in
which the document is not actually received by the entity to which it is addressed.
The courts disagree as to the evidence required or permitted to prove timely
mailing under § 7502. Sorrentino v. I.R.S., 383 F.3d 1187, 1191 (10th Cir. 2004)
(Baldock, J.), cert. denied, 126 S.Ct. 334 (2005). Some circuits hold that actual
delivery of an envelope with a legible postmark, or a receipt for registered or
certified mail, constitute the only satisfactory forms of proof, and no extrinsic
evidence of mailing can be considered. See Washton v. United States, 13 F.3d 49,
50 (2d Cir. 1993); Carroll v. Comm’r, 71 F.3d 1228, 1232-33 (6th Cir. 1995).
Other courts allow extrinsic evidence to demonstrate a document has been mailed,
3
Section 7502(c)(1), Registered Mail, provides:
For purposes of this section, if any return, claim, statement, or other
document, or payment, is sent by United States registered mail—
(A) such registration shall be prima facie evidence that the return, claim,
statement, or other document was delivered to the agency, officer, or office
to which addressed; and
(B) the date of registration shall be deemed the postmark date.
Subsection (c)(2) permits the Secretary to promulgate regulations setting forth the
extent to which the registered mail provisions of subsection (c)(1) apply to certified mail
and electronic filing. 26 U.S.C. § 7202(c)(2).
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usually direct proof of the postmark. See Estate of Wood v. Comm’r, 909 F.2d
1155, 1159-61 (8th Cir. 1990); Anderson v. United States, 966 F.2d 487, 489-91
(9th Cir. 1992). Under this view, the taxpayer is held “to a strict standard of
proof before invoking a presumption of receipt.” Sorrentino, 383 F.3d at 1191.
We have not yet decided whether § 7502 provides the exclusive method by
which timely mailing can be proven. Sorrentino, 383 F.3d at 1193; id. at 1196(Hartz, J., concurring); id. at 1197 (Seymour, J., dissenting). Although our decision
in Sorrentino is equivocal at best, we did hold that a taxpayer must comply with the
statutory requirements of § 7502 in order to benefit from the mailing-as-delivery
rule. Sorrentino, 383 F.3d at 1194; id. at 1197 (Hartz, J., concurring).
Assuming we apply the more lenient standard, the taxpayer still bears the
burden of proving compliance with the rule. Id. at 1194. “Self-serving declarations
of mailing, without more, are insufficient to invoke the presumption [of delivery].”
Id. at 1191. Despite the disagreement between the circuits as to the type of proof
which may be admitted to prove the date of mailing, no court has relied solely on
the uncorroborated testimony of the taxpayer. 4 As the Fourth Circuit noted, a
4
Washton, 13 F.3d at 50 (taxpayers’ own statements insufficient to prove timely
mailing); Spencer Med. Assoc. v. Comm’r, 155 F.3d 268, 272 (4th Cir. 1998); Carroll, 71
F.3d at 1229 (evidence of certified or registered mail necessary to prove compliance with
§ 7502); Estate of Wood, 909 F.2d at 1161 (taxpayer must provide proof of postmark, not
just proof of mailing); Anderson, 966 F.2d at 491 (testimony of taxpayer, coupled with
corroborating testimony of friend as to mailing, sufficient to comply with common law
presumption of delivery).
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taxpayer’s “reference to the dates [he] listed on [his] motions hardly constitutes
direct proof sufficient to deem the documents filed on those dates.” Spencer Med.
Assoc., 155 F.3d at 272.
Here, the only evidence as to the mailing of Crook’s petition—indeed, the
only evidence as to the petition’s existence at all—is Crook’s own uncorroborated
assertion in his letter of March 31, 2004, his response to the motion to dismiss, and
his brief filed with this court. In these filings he claims he submitted his petition to
prison authorities on November 12, 2003. Crook has neither provided evidence
relating to an actual postmark date, nor has he asserted that he used registered mail.
He also made no attempt, through requests for discovery or other legal processes, to
require the prison to produce mail logs which presumably would provide “tangible
evidence . . . [to] independently corroborate the date of mailing.” Shipley v.
Comm’r, 572 F.2d 212, 214 (9th Cir. 1977).
The strict application of § 7502 can lead to seemingly harsh results. Miller,
784 F.2d at 731 n.4; Rich v. Comm’r, 250 F.2d 170, 175 (5th Cir. 1957). This
harshness is ameliorated in this case because Crook had the opportunity to provide
additional proof to the tax court, as noted above, but failed to do so.
Crook has presented no evidence of timely mailing as required by § 7502.
His petition was not filed with the ninety-day period set forth by statute.
AFFIRMED.
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Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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