Curtiss T. Williams v. Commissioner

T.C. Memo. 2019-66
UNITED STATES TAX COURT
CURTISS T. WILLIAMS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 573-15. Filed June 5, 2019.
Paul W. Jones, for petitioner.
Skyler K. Bradbury and David W. Sorensen, for respondent.
MEMORANDUM OPINION
LAUBER, Judge: Currently before the Court is a motion by the Internal
Revenue Service (IRS or respondent) to dismiss this case for lack of jurisdiction
on the ground that the petition was not filed within the time prescribed by section
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[*2] 6213(a).1 Petitioner contends that the petition was timely mailed and so
should be deemed timely filed pursuant to section 7502. Finding that petitioner
has not carried his burden of proving that the petition was timely mailed, we will
grant respondent’s motion.
Background
The following facts are derived from the parties’ pleadings, motion papers,
and the exhibits and declarations attached thereto. Petitioner resided in Florida
when his petition was filed.
On September 4, 2014, the IRS sent petitioner, by certified mail to his last
known address, a notice of deficiency for tax years 2010, 2011, and 2012. Peti-
tioner’s attorney prepared a petition seeking redetermination of the deficiencies.
His attorney was affiliated with a law firm in Salt Lake City, Utah, and requested
Salt Lake City as the place of trial. The petition bears the attorney’s signature and
is dated November 29, 2014.
A petition seeking redetermination of the deficiencies at issue was due to be
filed in this Court within 90 days, i.e., by December 3, 2014. See sec. 6213(a).
The Court received the petition on January 8, 2015, 36 days after the due date.
1
All statutory references are to the Internal Revenue Code in effect for the
years at issue, and all Rule references are to the Tax Court Rules of Practice and
Procedure unless otherwise indicated.
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[*3] 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 have been
delivered by the U.S. Postal Service (USPS). However, the envelope bears no dis-
cernable postmark and has no other markings affixed by the USPS.
Petitioner has supplied a declaration under penalty of perjury from his attor-
ney, who states that he recalls preparing this petition because his daughter was
scheduled to have surgery on December 3, 2014, the petition’s due date. He re-
calls that he “had a full day of appointments and was not able to prepare the peti-
tion until the evening before the surgery.” (This recollection seems inconsistent
with the date next to his signature on the petition, which is November 29, not De-
cember 2.) He states that he drafted the petition at home, affixed “postage stamps
from his home,” and deposited the petition in a mailbox “outside of the United
States Post Office at 3350 S. 2940 E., Salt Lake City, UT 84109 late in the even-
ing of December 2, 2014.” He speculates that “the delivery of the petition was de-
layed in the postal system.” According to USPS delivery standards, an item sent
from this ZIP Code in Salt Lake City would normally arrive in Washington, D.C.,
within seven days.2
2
We take judicial notice of USPS standards under Rule 201 of the Federal
Rules of Evidence, applicable to this Court pursuant to section 7453 and Rule
(continued...)
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[*4] 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). “Jurisdic-
tion must be shown affirmatively, and petitioner, as the party invoking our juris-
diction * * * , bears the burden of proving that we have 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). To meet this burden, “petitioner must establish affirma-
tively all facts giving rise to our jurisdiction.” David Dung Le, M.D., Inc., 114
T.C. 270.
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 petitioner, this 90-
2
(...continued)
143(a). See Jordan v. Commissioner, T.C. Memo. 2019-15, at *3 n.2. According
to the USPS, standard mail sent from Salt Lake City to Washington, D.C., should
arrive in seven days. See USPS Service Standards Map, https://ribbs.usps.gov/
modernservicestandards/ssmaps/find_map.cfm (last visited May 14, 2019).
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[*5] day period expired on December 3, 2014, 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 be-
fore 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 peti-
tion 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 December 3, 2014.
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 case law 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. Com-
missioner, 68 T.C. 354, 356 (1977). The burden is on the party who invokes sec-
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[*6] tion 7502 to present “convincing evidence” of timely mailing. Mason, 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, 68 T.C. 357. We also look to evi-
dence regarding the normal delivery time from the place of origin to our Court in
Washington, D.C. See ibid.; Selter v. Commissioner, T.C. Memo. 2000-316, 80
T.C.M. 491, 493-494; Robinson v. Commissioner, T.C. Memo. 2000-146,
79 T.C.M. 1956, 1957. We may examine the envelope to see whether any
markings indicate that the letter had been “misplaced, missent, or inadvertently
lost or damaged.” Robinson, 79 T.C.M. at 1957 (noting the testimony of a
post office employee that, in the event of misdelivery or damage, “there should be
some marking on * * * [the envelope] ‘to let you know exactly what has happened
to that letter’”).
In some cases we have considered evidence regarding holiday conditions at
the post office as a possible explanation for a delayed delivery. Such conditions
might include holiday closures, unusually large volumes of mail, or inefficiencies
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[*7] attributable to temporary staff. Generally speaking, we have found such
evidence persuasive in explaining relatively short delays only. Compare
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), with Robinson, 79 T.C.M. at 1958 (declining to
find an 11-day delay explained by holiday conditions around Memorial Day), and
Chang v. Commissioner, T.C. Memo. 1998-298, 76 T.C.M. 290, 292
(declining to find a delay of 6 to 10 days explained by holiday conditions for a
petition that arrived in mid-November.)
Petitioner’s attorney states that he deposited the envelope containing the
petition in the U.S. mail on December 2, 2014, in Salt Lake City. According to the
USPS website, an item sent from Salt Lake City would normally arrive in Wash-
ington, D.C., within seven days. See supra note 2. On two prior occasions, courts
have had the opportunity to consider the ordinary delivery time for a letter sent
from Salt Lake City to the Tax Court. See Tilden v. Commissioner, 846 F.3d 882,
887 (7th Cir. 2017), rev’g and remanding T.C. Memo. 2015-188; Pearson v. Com-
missioner, 149 T.C. 424, 431-432 (2017). In each case, the court found that it or-
dinarily takes no more than eight days for mail to reach the Tax Court from Utah.
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[*8] Assuming that the envelope containing the petition was deposited in a mail-
box late in the evening on December 2, 2014, and picked up by the USPS in Salt
Lake City the next day, we would expect that it would arrive at the Court on or
before December 11, 2014, which was a Thursday. The petition arrived almost a
month later than expected, on January 8, 2015. The envelope is not damaged and
has no marking of any kind suggesting that it was misdirected or misplaced.
As evidence of timely mailing petitioner relies on his attorney’s recollection
that he prepared the petition at home on the evening of December 2, 2014, and
deposited it in a mailbox later that night. This recollection does not square with
the date his attorney placed on the petition, which was November 29, 2014. Peti-
tioner’s attorney suggests no explanation for the delay in delivery other than that
“the period from Thanksgiving to New Year’s Eve is the U.S. Post office’s busiest
time of the year.” We find this explanation unpersuasive. As of December 2 the
Thanksgiving holiday was over and the Christmas holiday was three weeks away.
Given this timeframe, holiday conditions at the post office cannot explain a 28-day
delay in delivery. Cf. Rotenberry v. Commissioner, 847 F.2d 229 (finding that
holiday conditions could explain a three-day delay for a letter mailed on December
23).
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[*9] In sum, petitioner has failed to present “convincing evidence establishing
that he mailed his petition timely.” Mason, 68 T.C. 357. The regulations warn
taxpayers and their advisers that “the sender who relies upon the applicability of
section 7502 assumes the risk that the postmark will bear a date on or before the
last date * * * prescribed for filing.” Sec. 301.7502-1(c)(1)(iii)(A), Proced. &
Admin. Regs. To avoid this risk, the regulations advise the use of certified mail.
Ibid. Had petitioner’s attorney used certified mail, he would have a receipt post-
marked by the employee to whom he presented the envelope, and that postmark
would be treated as the postmark date of the document. Id. subpara. (2). As it is,
petitioner has no persuasive evidence of timely mailing, and he has therefore
failed to meet his burden to “establish affirmatively all facts giving rise to our
jurisdiction.” See David Dung Le, M.D., Inc., 114 T.C. 270.3
To reflect the foregoing,
An order will be entered dismissing
this case for lack of jurisdiction.
3
Although petitioner cannot pursue his case in this Court, he is not without a
judicial remedy. He may pay the tax, file a claim for refund with the IRS, and (if
his claim is denied) sue for a refund in the appropriate U.S. District Court or the
U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138,
142 n.5 (1970).