                         T.C. Memo. 2010-220



                       UNITED STATES TAX COURT



         MICHAEL W. AND LINDA M. VAN BRUNT, Petitioners v.
            COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 26859-09.              Filed October 7, 2010.



     Michael B. Nelson and David M. Fogel, for petitioners.

     Kimberly A. Kazda, for respondent.



                         MEMORANDUM OPINION


     VASQUEZ, Judge:    This matter is before the Court on

respondent’s motion to dismiss for lack of jurisdiction on the

ground that the petition was not filed within the time prescribed

by section 6213(a) or section 7502.1



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                               - 2 -

                             Background

     At the time the petition was filed, petitioners resided in

California.

     On May 12, 2009, respondent mailed a notice of deficiency to

petitioners for tax years 2005, 2006, and 2007.   Petitioners

filed the petition on November 12, 2009, 184 days after the

notice of deficiency was mailed.   On February 18, 2010,

respondent filed a motion to dismiss for lack of jurisdiction

because the petition was not filed or postmarked within the 90-

day period after the notice of deficiency was mailed.   See secs.

6213(a), 7502.   Petitioners argue that they timely mailed the

petition on August 10, 2009, but the Court received it late

because the U.S. Postal Service (USPS) severely damaged the

envelope in which the petition was mailed, rendering it

undeliverable.   On November 3, 2009, nearly 3 months after the

envelope was mailed, it was returned to petitioners’ attorney,

who then promptly mailed a new copy of the petition to the Court.

A hearing on this matter was held on May 10, 2010, in San

Francisco, California.

     At the hearing petitioners submitted two affidavits to

support their arguments.   One was an affidavit from petitioners’

attorney, Michael Nelson (Mr. Nelson), and the other was an

affidavit of Mukesh Patel (Mr. Patel), the coowner of the United
                                - 3 -

Parcel Service, Inc. (UPS) store in San Ramon, California, from

which Mr. Nelson mailed the petition.

     According to Mr. Nelson’s affidavit, which we find credible,

on the morning of August 10, 2009, he took the envelope

containing the petition to the UPS store, affixed a properly

addressed certified mailing label to the envelope,2 and paid

$5.88 in cash for proper postage.3      He then left the envelope

with a UPS employee with the understanding that it would be

postmarked the same day.    Mr. Nelson recorded this transaction in

the contemporaneously updated postage log that he maintains for

all client mailings.4    Mr. Patel’s affidavit, which we also find

credible, states that Mr. Nelson delivered the envelope to the

UPS store on August 10, 2009, and that the USPS picked up the

envelope the same day.

     On November 3, 2009, the USPS returned the envelope to Mr.

Nelson in severely damaged condition.      The mailing label that had

been attached to the envelope had been torn off during processing


     2
        According to Mr. Nelson’s affidavit, he addressed the
envelope to: Office of the Clerk of the Court, United States Tax
Court, 400 Second Street, N.W., Washington, DC 20217.
     3
        Petitioners’ attorney was unable to find the certified
mail receipt.
     4
        Mr. Nelson tracks the following data in his postage log:
(1) Date of mailing; (2) client; (3) description of the item
mailed; (4) method of postage; and (5) shipping cost. According
to the entry dated Aug. 10, 2009, Mr. Nelson mailed the petition
in this case via certified mail and paid $5.88 for postage.
                                - 4 -

by the USPS.   The right half of the envelope, where the postmark

typically appears, had been completely torn off.    Mr. Nelson’s

return address label, however, which was affixed to the upper

lefthand portion of the envelope, was not damaged.    The portion

of the envelope that was returned to Mr. Nelson was stamped with

the following notation:   “RETURNED FOR BETTER ADDRESS”.   What

remained of the envelope and its contents was encased in a clear

plastic wrap with a red sticker that states:   “WE’RE SORRY THAT

YOUR ARTICLE WAS DAMAGED DURING PROCESSING.”   The petition, which

is dated August 9, 2009, was nearly torn in half.

     In a letter dated November 4, 2009, Tracy Liu (Ms. Liu), a

USPS employee, apologized for the damage caused during processing

and explained that the envelope was returned to Mr. Nelson for a

“better address”.

     On November 6, 2009, Mr. Nelson mailed a new copy of the

petition along with the original damaged envelope and its

contents to the Court.    As stated above, the petition was filed

on November 12, 2009, 184 days after the notice of deficiency was

mailed.

                             Discussion

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

exercise our jurisdiction only to the extent authorized by

Congress.   Naftel v. Commissioner, 85 T.C. 527, 529 (1985).      This

Court’s jurisdiction to redetermine a deficiency depends on the
                                - 5 -

issuance of a valid notice of deficiency and a timely filed

petition.   Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

     Section 6212(a) expressly authorizes the Commissioner, after

determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail.   The taxpayer, in turn,

has 90 days (or 150 days if the notice is addressed to a person

outside of the United States) from the date that the notice of

deficiency is mailed to file a petition with this Court for a

redetermination of the contested deficiency.   Sec. 6213(a).

     By virtue of section 7502, a petition that is timely mailed

is deemed to be timely filed.   Although timely mailing is

generally determined by the postmark date, see sec. 7502(a); sec.

301.7502-1(c)(1), Proced. & Admin. Regs., extrinsic evidence is

admissible to prove the date of mailing if a postmark date is

illegible or destroyed, see Mason v. Commissioner, 68 T.C. 354,

355-356 (1977); Sylvan v. Commissioner, 65 T.C. 548 (1975);

Maddox v. Commissioner, T.C. Memo. 2009-241.   The burden is on

the taxpayer to produce sufficient credible evidence that the

petition was timely mailed.   See Mason v. Commissioner, supra at

356; Maddox v. Commissioner, supra; Perry Segura & Associates,

Inc. v. Commissioner, T.C. Memo. 1975-80; see also sec. 301.7502-

1(c)(1)(iii)(A), Proced. & Admin. Regs. (“If the postmark on the

envelope is made by the U.S. Postal Service but is not legible,
                               - 6 -

the person who is required to file the document or make the

payment has the burden of proving the date that the postmark was

made.”).   In determining whether the “timely mailing is timely

filing” rule applies, we look to the date the original envelope

was mailed.   See Price v. Commissioner, 76 T.C. 389, 391 (1981);

Estate of Cranor v. Commissioner, T.C. Memo. 2001-27 (“section

7502(a) does not require that the qualifying envelope (i.e., the

envelope which was timely mailed, properly addressed, and bore

the proper postage) be the envelope in which the petition is

received; nor does section 7502(a) bar application of the ‘timely

mailing is timely filing’ rule if a petition contained in a

properly addressed envelope (that otherwise meets the above

requirements) is returned to, and remailed by, the taxpayer.”).

     The evidence establishes that Mr. Nelson delivered the

envelope containing the petition to the UPS store on the morning

of August 10, 2009, for pickup by the USPS later that day.    Mr.

Patel confirmed that Mr. Nelson left the envelope at the UPS

store in the morning and the USPS picked it up later in the day

on August 10, 2009.   Mr. Nelson’s postage log, which we find

credible, also provides contemporaneously recorded details (e.g.,

date of mailing, method of postage, cost) establishing that Mr.

Nelson mailed the petition on August 10, 2009.   Finally, we note

that the original petition was dated August 9, 2009, exactly 1

day before the deadline for timely filing.
                                 - 7 -

     In light of all the evidence in the record, we find that

petitioners have established that the envelope was postmarked on

August 10, 2009, thus timely filed.       Consequently, respondent’s

motion will be denied.

     To reflect the foregoing,


                                         An order will be issued

                             denying respondent’s motion

                             to dismiss for lack of

                             jurisdiction.
