King v. Commissioner , 207 F. App'x 681 ( 2006 )

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 18, 2006*
Decided December 1, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 05-4571
GEORGE KING, Appeal from the United States Tax
Petitioner-Appellant, Court.
v. No. 9307-02
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
ORDER
George King filed a petition challenging an Internal Revenue Service notice
of income tax deficiency. See 26 U.S.C. § 6213(a). The Tax Court determined that
the petition was untimely, and accordingly dismissed it for lack of jurisdiction.
King appeals, see 26 U.S.C. § 7482, and we affirm.
On February 15, 2002, the I.R.S. mailed King a deficiency notice which
triggered a 90-day period for King to file a petition in the Tax Court challenging the
*
After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record.
See Fed. R. App. P. 34(a)(2).
No. 05-4571 Page 2
notice. See 26 U.S.C. § 6213(a). King mailed a petition—the precise date of the
mailing, as we will see, is in dispute—which arrived at the Tax Court on May 28,
2002. The Tax Court proceeded to resolve the case on the merits, and determined
that King owed taxes for the years 1987, 1988, 1989, and 1990. King moved to
vacate the decision, contending that the Tax Court had ignored some of his filings.
In the course of reviewing his motion, the Tax Court determined for the first time
that King’s petition was filed outside the 90-day jurisdictional period because the
envelope containing the petition bore a United States Postal Service (“U.S.P.S.”)
postmark indicating that it was mailed on May 18, 2002—two days after the filing
deadline. The Tax Court noted that although the envelope also bore a postmark
from a private meter bearing King’s filing deadline of May 16, 2002, this postmark
was not controlling. According to I.R.S. regulations, where a petition bears both
private and U.S.P.S. postmarks, the U.S.P.S. postmark trumps the private meter
postmark. See 26 C.F.R. § 301.7502-1(c)(1)(iii)(B)(3); Petrulis v. Comm’r, 938 F.2d
78, 80-81 (7th Cir. 1991). The Tax Court therefore dismissed the petition for lack of
jurisdiction.
King argues that we must reverse the Tax Court’s decision because it was too
late in the proceedings for the Tax Court to find it had no jurisdiction. But it is
never too late for the Tax Court to review its jurisdiction over a case; in fact, the
Tax Court is under a continuing obligation to do so. See Correia v. Comm’r, 58 F.3d
468, 469 (9th Cir. 1995); Treaty Pines Inv. P’ship v. Comm’r, 967 F.2d 206, 210 (5th
Cir. 1992); Raymond v. Comm’r, 119 T.C. 191, 193 (2002).
King also urges that the decision be reversed because the Tax Court clearly
erred in finding that the U.S.P.S. postmark legibly bears the date May 18, 2002.
See JPMorgan Chase & Co. v. Comm’r, 458 F.3d 564, 569 (7th Cir. 2006) (stating
that this court reviews Tax Court’s factual determinations and applications of law
to facts for clear error). But clear error exists only where this court, after reviewing
the evidence, is “left with the definite and firm conviction that a mistake has been
committed.” Id.; Pinkston v. Madry, 440 F.3d 879, 888 (7th Cir. 2006). After
carefully reviewing both the original envelope in which King mailed his petition and
the magnified copy of the envelope that the Tax Court appended to its decision, we
cannot conclude that the Tax Court clearly erred in determining that the U.S.P.S.
postmark bears the date May 18, 2002. Although the postmark is faint and
partially obscured, the “May 18” imprint is readable. Reasonable minds might
disagree over the interpretation of the imprint, but such a disagreement is
insufficient to amount to clear error. See In re: KMart Corp., 381 F.3d 709, 714 (7th
Cir. 2004), cert. denied, 543 U.S. 1056 (2005). Even were the postmark illegible,
King would have the burden of proving that the postmark was made on May 16th,
see 26 C.F.R. § 301.7502-1(c)(1)(iii)(A), and he has not done so.
No. 05-4571 Page 3
King also argues that the Tax Court denied him due process by not
considering all of his arguments during the proceedings. But because the Tax Court
lacked jurisdiction to consider King’s case, we do not reach his due process
argument.
AFFIRMED.