Michael J. Seely & Nancy B. Seely v. Commissioner , 2020 T.C. Memo. 6 ( 2020 )

T.C. Memo. 2020-6
UNITED STATES TAX COURT
MICHAEL J. SEELY AND NANCY B. SEELY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15349-17. Filed January 13, 2020.
Scott G. Boyce, for petitioners.
Patsy A. Clarke and Melissa D. Lang, for respondent.
MEMORANDUM OPINION
VASQUEZ, Judge: This matter is before us on respondent’s motion to
dismiss for lack of jurisdiction on the ground that the petition was not filed within
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[*2] the time prescribed by section 6213(a) or section 7502.1 As explained below,
we will deny respondent’s motion.
Background
The following facts are derived from the parties’ pleadings, motion papers,
and attached exhibits and declarations. Petitioners resided in the State of
Washington when their petition was filed.
On March 28, 2017, respondent mailed petitioners, by certified mail to their
last known address, a notice of deficiency for tax years 2013, 2014, and 2015.
The notice of deficiency advised petitioners that they had 90 days from the date of
the notice to file a petition in the Tax Court for a redetermination of the
deficiency. The notice of deficiency also stated that the last day to petition the
Tax Court was June 26, 2017.
Petitioners’ attorney, Scott Boyce, prepared a petition seeking a
redetermination of the deficiencies and mailed it to the Tax Court. The Court
received the petition on July 17, 2017, 111 days after the mailing of the notice of
deficiency. The envelope in which the petition was mailed was properly addressed
to the Tax Court. The envelope bears U.S. postage stamps and thus appears to
1
All section references are to the Internal Revenue Code in effect at all
relevant times, and all Rule references are to the Tax Court Rules of Practice and
Procedure unless otherwise indicated.
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[*3] have been delivered by the U.S. Postal Service (USPS). However, the
envelope bears no discernable postmark and has no other markings affixed by the
USPS.
On September 8, 2017, respondent filed a motion to dismiss for lack of
jurisdiction on the ground that the petition was not timely filed. Petitioners
objected to this motion and argued that their petition was timely filed because their
attorney mailed the petition to the Tax Court on June 22, 2017, before the due
date. In support of their objection petitioners’ attorney supplied a declaration (Mr.
Boyce’s declaration) under penalty of perjury in which he states that “on June 22,
2017 * * * [he] deposited into the [USPS] collection receptacle located at 690
Gage Blvd, Richland, Washington 99352, the tax court petition of Michael and
Nancy Seely”. The Court held a hearing on respondent’s motion in Spokane,
Washington.
Discussion
This Court is a court of limited jurisdiction and may exercise jurisdiction
only to the extent expressly authorized by Congress. Naftel v. Commissioner, 85
T.C. 527, 529 (1985); Breman v. Commissioner, 66 T.C. 61, 66 (1976).
“Jurisdiction must be shown affirmatively, and * * * [the taxpayer], as the party
invoking our jurisdiction * * * , bears the burden of proving that we have
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[*4] jurisdiction over * * * [the] case.” David Dung Le, M.D., Inc. v.
Commissioner, 114 T.C. 268, 270 (2000), aff’d, 22 F. App’x 837 (9th Cir. 2001);
see Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler’s Peachtree
Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
Section 6213(a) provides, in the case of a notice addressed to a taxpayer
within the United States, that the taxpayer must petition this Court “[w]ithin 90
days * * * after the notice of deficiency * * * is mailed”. For petitioners, this
90-day period expired on June 26, 2017, which was not a Saturday, Sunday, or
legal holiday in the District of Columbia. See sec. 6213(a).
Section 7502(a) provides a “timely mailed, timely filed” rule. A document
delivered by U.S. mail is timely mailed if “the postmark date falls * * * on or
before the prescribed date” and the document is mailed, on or before that date, in
an envelope with “postage prepaid, properly addressed” to the recipient. Id.
para. (2). If those conditions are met, “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”. Id. para. (1). The parties agree that the
envelope in which the petition was mailed was properly addressed to the Tax
Court and that the postmark is missing. They disagree as to whether the envelope
was deposited in the U.S. mail on or before June 26, 2017.
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[*5] The regulations prescribe distinct rules for USPS and non-USPS postmarks,
sec. 301.7502-1(c)(1)(iii), Proced. & Admin. Regs., but they supply no rules to
govern the situation where the envelope has no postmark whatsoever. When a
postmark is missing, our caselaw instructs us to deem the postmark illegible and
permit the introduction of extrinsic evidence to ascertain the mailing date. See
Sylvan v. Commissioner, 65 T.C. 548, 553-555 (1975); see also Mason v.
Commissioner, 68 T.C. 354, 356 (1977). The burden is on the party who invokes
section 7502 to present “convincing evidence” of timely mailing. Mason v.
Commissioner, 68 T.C. 356-357; see sec. 301.7502-1(c)(1)(iii)(A), Proced. &
Admin. Regs. (providing that, if a USPS postmark “is not legible, the person * * *
[invoking section 7502] has the burden of proving the date that the postmark was
made”).
When confronted with illegible or missing postmarks, we have considered
various types of extrinsic evidence, including testimony from the person claiming
to have mailed the envelope. See Mason v. Commissioner, 68 T.C. 357. We
also look to evidence regarding the normal delivery time from the place of origin
to our Court in Washington, D.C. See id.; Selter v. Commissioner, T.C. Memo.
2000-316, 2000 Tax Ct. Memo LEXIS 373, at *11; Robinson v. Commissioner,
T.C. Memo. 2000-146, 2000 Tax Ct. Memo LEXIS 176, at *5. We may examine
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[*6] the envelope to see whether any markings indicate that the letter had been
“misplaced, missent, or inadvertently lost or damaged”. Robinson v.
Commissioner, 2000 Tax Ct. Memo LEXIS 176, at *3 (noting the testimony of a
post office employee that, in the event of misdelivery or damage, “there should be
some sort of marking on * * * [the envelope] ‘to let you know exactly what has
happened to that letter’”).
The envelope that contained the petition in this case is not damaged and has
no marking of any kind suggesting that it was misdirected or misplaced. The
envelope, however, does not bear any postmark. Therefore, the issue turns on
whether petitioners have presented convincing evidence establishing that they
timely mailed their petition. We allowed both parties to present extrinsic evidence
to establish the petition’s mailing date.2 See Sylvan v. Commissioner, 65 T.C.
at 553-555.
2
In Baldwin v. United States, 921 F.3d 836 (9th Cir. 2019), the U.S. Court
of Appeals for the Ninth Circuit, to which an appeal would appear to lie absent a
stipulation to the contrary, see sec. 7482(b)(1)(A), held that sec. 301.7502 (e)(2),
Proced. & Admin. Regs., precluded the introduction of extrinsic evidence where
the IRS did not receive the tax return and the taxpayers sought to rely on the
common law mailbox rule to establish that their return was presumptively
delivered to the IRS, shortly after they mailed it. However, this case is
distinguishable because the Court received the petition on July 17, 2017, and the
parties do not dispute the actual delivery of the petition. Accordingly, the parties
are not precluded from introducing extrinsic evidence to establish timely filing.
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[*7] At the hearing respondent alleged that it takes 8 to 15 business days3 for the
USPS to deliver a piece of mail to a Government agency located in Washington,
D.C., from any location in the United States. Petitioners do not dispute this
contention, and we deem it conceded. If the petition was mailed on June 26, 2017,
the last day to file a petition, then the petition’s delivery date would have fallen
within the 15-day window. In a sworn declaration Mr. Boyce declared that he
deposited the petition in the U.S. mail several days earlier, on June 22, 2017.
Respondent argues that if the petition had in fact been mailed on June 22, 2017,
then it would have been delivered to the Tax Court no later than July 14, 2017,
which was a Friday. The petition, however, arrived on Monday, July 17, 2017.
Because the petition arrived at the Court later than it should have (16 business
days after the alleged mailing date rather than 15), respondent contends that Mr.
Boyce’s declaration is not convincing evidence. We disagree.
3
Respondent stated that according to the USPS, it can take three to five
business days for a piece of mail dropped into a collection box to reach
Washington, D.C., from any location in the United States. Once sorted, mail is
transported to a New Jersey location for irradiation, which takes an additional 5 to
10 days, and then returned to Washington, D.C., to be delivered. On the basis of
this information it can be inferred that a petition can take as little as 8 business
days and up to 15 business days to arrive at the Tax Court after being mailed.
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[*8] First, we note that the petition arrived at the Court only one business day
late. We also note that the Fourth of July4 holiday fell between the date of the
alleged mailing and the delivery date. In prior cases holiday conditions at the post
office (e.g., holiday closures, unusually large volumes of mail, or inefficiencies
attributable to temporary staff) have been found to be a possible explanation for
short delays in delivery. Rotenberry v. Commissioner, 847 F.2d 229 (5th Cir.
1988) (finding that holiday conditions could explain a three-day delay in ordinary
delivery time for a letter mailed on December 23); see also Mason v.
Commissioner, 68 T.C. 357 (noting the testimony of a post office employee
that, because of the Bicentennial celebrations being conducted in Washington,
D.C., over the Fourth of July weekend, “it is possible that mail going * * * [to
Washington, D.C.] at about that time could have been delayed”). We are thus
unpersuaded by respondent’s argument that Mr. Boyce’s declaration is not reliable
because the petition’s alleged mailing date does not square with its actual delivery
date.
4
We take judicial notice that the Fourth of July was a national holiday in
2017, under Fed. R. Evid. 201, applicable to this Court pursuant to sec. 7453 and
Rule 143(a). A fact may be judicially noticed if it “(1) is generally known within
the trial court’s territorial jurisdiction; or (2) can be accurately and readily
determined from sources whose accuracy cannot reasonably be questioned.” Fed.
R. Evid. 201(b). The Court may take judicial notice on its own and at any stage of
the proceeding. Id. subdivs. (c)(1), (d).
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[*9] On the basis of Mr. Boyce’s sworn declaration and of our judicial notice of
the Fourth of July holiday, we find that it is more likely than not that the petition
was mailed on June 22, 2017. Accordingly, respondent’s motion to dismiss for
lack of jurisdiction will be denied.
We have considered all other arguments made by the parties, and to the
extent not discussed above, find those arguments to be irrelevant, moot, or without
merit.
To reflect the foregoing,
An appropriate order will be issued.