                        T.C. Memo. 2017-44



                  UNITED STATES TAX COURT



              DALE GRIMM, Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 4649-16L.                        Filed March 16, 2017.



       R mailed P a notice of determination sustaining a proposed
collection action. P prepared a petition, applied postage using a
private postage meter, and mailed the petition to the Court. The
Court did not receive the petition within 30 days of the date of the
notice of determination. Further, the petition was received by the
Court later than a document “would ordinarily be received if it were
postmarked at the same point of origin by the U.S. Postal Service on
the * * * last day of the period, prescribed for filing the * * *
[petition].” R moved to dismiss the case for lack of jurisdiction.

      Held: P’s petition does not satisfy the requirements of sec.
301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs., and we must
dismiss this case for lack jurisdiction.
                                        -2-

[*2] Dale Grimm, pro se.

      Evan K. Like, for respondent.



                           MEMORANDUM OPINION


      WHERRY, Judge: This case was filed in response to a Notice of

Determination Concerning Collection Action(s) Under Section 6320 and/or 6330

(notice of determination).1 Respondent moves that this case be dismissed on the

ground that the petition was not filed within the time prescribed by section

6330(d) or section 7502. As explained below, we will grant respondent’s motion.

                                    Background

      A hearing on respondent’s motion was held in Columbus, Ohio, on

September 16, 2016. Before the hearing the parties filed a stipulation of facts.

The stipulation of facts and the attached exhibits are incorporated by this

reference. At the time the petition was filed, petitioner resided in Ohio.

      Petitioner timely filed a Federal income tax return for the taxable year 2012,

reporting total income of $3,438, self-employment tax of $422, and total tax of


      1
      Unless otherwise indicated, all section references are to the Internal
Revenue Code of 1986, as amended, and in effect at all relevant times. All
monetary amounts are rounded to the nearest dollar.
                                        -3-

[*3] $422. Petitioner claimed an earned income tax credit of $475 and a tax

refund of $53.

      Respondent determined that petitioner had not claimed a deduction of $242

for self-employment tax. Respondent also determined that petitioner had

overstated the amount of earned income tax credit that he was entitled to by $232.

Pursuant to section 6213(b)(1), respondent adjusted the amounts of the self-

employment tax deduction and the earned income tax credit on petitioner’s return

accordingly. As a result of the adjustments, respondent determined that petitioner

was not entitled to the claimed refund of $53 but instead had an outstanding

income tax liability of $179. Respondent also determined that petitioner was

liable for a failure-to-pay timely addition to tax under section 6651(a)(2).

      On September 28, 2015, respondent issued petitioner a Notice of Intent to

Levy and Notice of Your Right to a Hearing. On October 9, 2015, petitioner

submitted a Form 12153, Request for a Collection Due Process or Equivalent

Hearing. Petitioner’s case was assigned to a settlement officer (SO) at the Internal

Revenue Service Office of Appeals (Appeals Office). On November 19, 2015, the

SO mailed petitioner a letter scheduling a telephone collection due process (CDP)

hearing for December 22, 2015.
                                           -4-

[*4] Petitioner called the SO at the scheduled time and informed her that he was

recording the call. Because petitioner had not provided advance notice of his

intent to record the call, the SO asked petitioner to stop recording or she would

need to terminate the call pursuant to Internal Revenue Service policy. Petitioner

declined to stop recording, and the SO ended the call. See sec. 7521(a)(1)

(requiring taxpayer to provide notice to IRS before making audio recording). That

same day the SO mailed a letter offering a CDP conference by mail and asked

petitioner to provide any information he wanted her to consider within 14 days.

On December 29, 2015, petitioner mailed a letter in response asking for

clarification of the mathematical changes respondent had made to his return and

asserting that he had the right to record all phone calls with respondent’s

employees.

        On January 11, 2016, respondent mailed petitioner a notice of determination

sustaining the proposed levy. In response petitioner completed a petition for his

taxable year 2012 and mailed it to the Court; the envelope containing the petition

bears a private postal meter stamp date of February 2, 2016.2 A letter mailed from

petitioner’s address in New Carlisle, Ohio, would generally be delivered to


        2
            The petition itself was apparently completed and signed on January 17,
2016.
                                        -5-

[*5] Washington, D.C., within about three or four days. The petition was received

and filed by the Court on February 26, 2016, which was 46 days after the mailing

of the notice of determination.

      Petitioner runs a small local newspaper. In the course of his business he

sends many items through the mail and uses a private postage meter to apply the

appropriate postage. After postage is applied, outgoing mail is ordinarily placed

in a tray for the U.S. Postal Service and is usually picked up within one business

day. Occasionally, petitioner may have personally delivered outgoing mail to his

local post office. No evidence was presented to the Court indicating that there was

a delay in the ordinary transmission of the mail from New Carlisle, Ohio, to

Washington, D.C., during January or February 2016.

                                     Discussion

      The Tax Court is a court of limited jurisdiction, and we may exercise our

jurisdiction only to the extent authorized by Congress. Sec. 7442; Naftel v.

Commissioner, 85 T.C. 527, 529 (1985). When the Appeals Office issues a notice

of determination to a taxpayer following an administrative hearing, section

6330(d)(1) provides that the taxpayer has 30 days following the issuance of the

notice to file a petition for review with the Tax Court. Weber v. Commissioner,

122 T.C. 258, 261-262 (2004). If the taxpayer fails to file a timely petition, then
                                        -6-

[*6] the Court will (and must) dismiss the action for lack of jurisdiction. Id.

Petitioner, as the party invoking the Court’s jurisdiction, bears the burden of

demonstrating that it exists. See, e.g., Dees v. Commissioner, 148 T.C. __ (Feb. 2,

2017).

       Because the petition was received by the Court more than 30 days after the

notice of determination was issued, petitioner relies on section 7502 to establish

that his petition was timely. If section 7502 applies, a document that is timely

mailed is treated as timely filed. In order for section 7502 to apply, the document

must be mailed in accordance with certain requirements set forth in the statute and

the regulations. See sec. 7502(a)(2) and (b); sec. 301.7502-1(c), Proced. &

Admin. Regs. For example, the document must be mailed in a properly addressed

envelope with sufficient prepaid postage. See sec. 301.7502-1(c)(1), Proced. &

Admin. Regs. There are additional rules regarding the postmark on the envelope.

Id. subdiv. (iii).

       A document with a U.S. Postal Service postmark generally will be

considered filed on the date of the postmark. Id. subdiv. (iii)(A). However, the

postmark on the petition’s envelope was made by petitioner’s private postage

meter. Section 301.7502-1(c)(1)(iii)(B), Proced. & Admin. Regs., sets forth the

following rules for a postmark made other than by the U.S. Postal Service:
                                         -7-

[*7]         (1) In general.--If the postmark on the envelope is made other than by
       the U.S. Postal Service--

              (i) The postmark so made must bear a legible date on or before the
       last date, or the last day of the period, prescribed for filing the document or
       making the payment; and

              (ii) The document or payment must be received by the agency,
       officer, or office with which it is required to be filed not later than the time
       when a document or payment contained in an envelope that is properly
       addressed, mailed, and sent by the same class of mail would ordinarily be
       received if it were postmarked at the same point of origin by the U.S. Postal
       Service on the last date, or the last day of the period, prescribed for filing
       the document or making the payment.

             (2) Document or payment received late.--If a document or payment
       described in paragraph (c)(1)(iii)(B)(1) is received after the time when a
       document or payment so mailed and so postmarked by the U.S. Postal
       Service would ordinarily be received, the document or payment is treated as
       having been received at the time when a document or payment so mailed
       and so postmarked would ordinarily be received if the person who is
       required to file the document or make the payment establishes--

              (i) That it was actually deposited in the U.S. mail before the last
       collection of mail from the place of deposit that was postmarked (except for
       the metered mail) by the U.S. Postal Service on or before the last date, or the
       last day of the period, prescribed for filing the document or making the
       payment;

              (ii) That the delay in receiving the document or payment was due to a
       delay in the transmission of the U.S. mail; and

             (iii) The cause of the delay.
                                         -8-

[*8] The petition was received by the Court on February 26, 2016, which is 24

days after petitioner alleges that it was mailed and at least 10 days after a

document “would ordinarily be received if it were postmarked at the same point of

origin by the U.S. Postal Service on * * * the last day of the period, prescribed for

filing the document”. See sec. 301.7502-1(c)(1)(iii)(B)(1)(ii), Proced. & Admin.

Regs. The parties agree that the ordinary delivery time for a properly addressed

envelope sent from New Carlisle, Ohio, to Washington, D.C., is three to four days.

Accordingly, the petition was not received by the Court within the ordinary

delivery time for mail sent from New Carlisle, Ohio, to Washington, D.C.

Therefore, under section 301.7502-1(c)(1)(iii)(B), Proced. & Admin. Regs.,

quoted above, the petition will not be deemed filed on the postmark date, February

2, 2016, unless petitioner establishes: (1) that the petition was actually deposited

in the mail before the last collection of the mail on February 10, 2016, the last day

for filing the petition; (2) that the delay in receiving the petition was due to a delay

in the transmission of the mail; and (3) the cause of the delay. See id.; see also

Gomez v. Commissioner, T.C. Memo. 1996-561, 72 T.C.M. (CCH) 1602 (1996);

Little v. Commissioner, T.C. Memo. 1995-491, 70 T.C.M. (CCH) 991 (1995).

      At a hearing on respondent’s motion petitioner offered his own testimony as

evidence to establish that the petition should be treated as timely filed. Petitioner
                                          -9-

[*9] testified that his usual business practice is to place items in the mail

immediately after applying postage with his meter. A U.S. Postal Service letter

carrier then picks up the items from a designated tray later that day or perhaps the

next.

        Petitioner sends a lot of mail, mostly invoices, in the course of his business,

and he candidly testified that he could not recall the specific circumstances

surrounding the mailing of the Tax Court petition. However, he testified that any

envelope that was stamped with postage would be placed in the mail more or less

immediately; his business needs to promptly collect on invoices to remain

competitive. We note that even if the petition remained in petitioner’s office for a

week after being stamped, he could still have established that it satisfied the first

requirement of section 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs.

        However, other than expressing a general view that the service provided by

the U.S. Postal Service has declined over the years, petitioner could not point to

any evidence that might establish that a delay in the Court’s receipt of the petition

was due to a delay in transmission of the mail or the cause of such a delay.

Accordingly, the petition does not satisfy the requirements of subdivision (ii) or

(iii) of section 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs.
                                        - 10 -

[*10] The petition arrived at the Court more than 30 days after the notice of

determination was issued and later than a timely mailed petition would be

expected to arrive. The petition does not bear a U.S. Postal Service postmark, and

petitioner is unable to establish that the Court’s untimely receipt of the petition

was due to a delay in the transmission of the mail and the source of that delay.

Accordingly section 7502 does not apply to the petition. See sec.

301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs. Without a timely filed

petition the Court lacks jurisdiction to review respondent’s determination. See

Weber v. Commissioner, 122 T.C. at 261-262.

      To reflect the foregoing,


                                                  An appropriate order will be

                                           entered granting respondent’s motion to

                                           dismiss for lack of jurisdiction.
