                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 30 2019
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

STEVEN T. WALTNER and SARAH V.                  No.   16-72754
WALTNER,
                                                Tax Ct. No. 8726-11L
                Petitioners-Appellants,

 v.                                             MEMORANDUM*

COMMISSIONER OF INTERNAL
REVENUE,

                Respondent-Appellee.

                           Appeal from a Decision of the
                             United States Tax Court

                          Submitted January 8, 2019**
                     Submission Withdrawn January 15, 2019
                          Resubmitted April 29, 2019
                              Pasadena, California

Before: GRABER and WATFORD, Circuit Judges, and ZOUHARY,*** District
Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Timely filing of a notice of appeal is “mandatory and jurisdictional.”

Melendres v. Maricopa Cty., 815 F.3d 645, 649 (9th Cir. 2016) (citation omitted).

Taxpayers Steven and Sarah Waltner attempt to appeal a Tax Court decision, but

that court did not receive their notice of appeal until long after the filing deadline.

See 26 U.S.C. § 7483. The Waltners claim they mailed an earlier notice before the

deadline, but that notice was never delivered.

      To support their claim of the earlier mailing, the Waltners offer two pieces of

evidence: (1) Sarah Waltner’s declaration that, a few days before the deadline, she

gave the notice of appeal to a private mail-services center to be mailed to the Tax

Court; and (2) an affidavit from the owner of the mail-services center stating that he

mailed the notice via United States first-class mail as instructed. Our jurisdiction

depends on whether this evidence proves the notice was timely filed.

      The law in this circuit has changed with respect to how a taxpayer can prove

timely filing of an undelivered tax document, such as a notice of appeal to the Tax

Court. Previously, under the common-law mailbox rule, a taxpayer could prove

timely filing by testimonial or circumstantial evidence. See Anderson v. United

States, 966 F.2d 487, 491 (9th Cir. 1992). But a 2011 Treasury regulation replaced

that rule and limited the types of evidence that can prove timely filing. See Baldwin

v. United States, No. 17-55115, 2019 WL 1605669, at *3–4 (9th Cir. 2019). That

regulation provides:


                                          2                                    16-72754
      Other than direct proof of actual delivery, proof of proper use of
      registered or certified mail, and proof of proper use of a duly designated
      [private delivery service] . . . , are the exclusive means to establish prima
      facie evidence of delivery of a document to the agency, officer, or office
      with which the document is required to be filed. No other evidence of
      a postmark or of mailing will be prima facie evidence of delivery or
      raise a presumption that the document was delivered.

26 C.F.R. § 301.7502-1(e)(2)(i) (emphases added). Under that regulation, when the

government claims that a tax document never arrived at the office where it should

have been filed, the only allowable types of evidence to prove timely filing are: (1)

direct proof of actual delivery, (2) proof of proper use of registered or certified mail,

or (3) proof of proper use of a duly designated private delivery service. As this Court

held in Baldwin, 2019 WL 1605669, at *5, the regulation is valid under Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

      Here, the Waltners offer no allowable evidence to prove timely filing. They

do not claim to have used registered or certified mail or a duly designated private

delivery service. The regulation, therefore, bars consideration of the Waltners’

evidence.

      With no evidence of timely filing, we hold that the notice of appeal is

untimely. This appeal is dismissed for lack of jurisdiction.

      DISMISSED.




                                           3                                      16-72754
