                  T.C. Memo. 2011-11



                UNITED STATES TAX COURT



          JOHN ARTHUR BOULTBEE, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 13856-10.             Filed January 11, 2011.



     P mailed his petition using the registered mail
service of a foreign country on the 145th day after the
mailing of a notice of deficiency to him at an address
in the foreign country. Official records of the U.S.
Postal Service demonstrate that the envelope in which
the petition was mailed entered the domestic mail
service of the United States on the 147th day. The
petition was received and filed by the Court on the
153rd day.
     Held: The petition was timely filed, and the
Court has jurisdiction to hear P’s case.



John Arthur Boultbee, pro se.

Lawrence C. Letkewicz and Tracy M. Hogan, for respondent.
                                 - 2 -

                         MEMORANDUM OPINION


       ARMEN, Special Trial Judge:   This case is before the Court

on that part of the Court’s Order dated August 16, 2010,

directing the parties to show cause why the Court should not

dismiss this case for lack of jurisdiction on the ground that the

petition was not timely filed.

       At the time that the petition was filed, petitioner resided

in Victoria, British Columbia, Canada.

                             Background

       On January 15, 2010, respondent sent by registered mail a

notice of deficiency to petitioner in Victoria, British Columbia,

Canada.    In the notice respondent determined deficiencies and

additions to tax in petitioner’s Federal income taxes for the

taxable years 2000 and 2001 as follows:

                                 Additions to Tax
Year     Deficiency   Sec. 6651(a)(1)   Sec. 6651(a)(2)    Sec. 6654

2000      $686,535     $154,470.38        $171,633.75     $36,925.11
2001       140,049       31,511.03          35,012.25       5,596.91

       The first page of the notice of deficiency states as

follows:    “Last Date to File a Petition With the United States

Tax Court: June 14, 2010”.    That date was the 150th day after the

mailing date of the notice of deficiency.

       Petitioner mailed a petition to this Court seeking a

redetermination of the deficiencies and additions to tax

determined by respondent in the notice of deficiency.     The
                               - 3 -

petition, which was delivered to the Court by the U.S. Postal

Service, was received and filed on Thursday, June 17, 2010.      The

envelope containing the petition indicates that it originated in

Canada and was sent by Canada Post registered air mail.    The

envelope bears a clearly legible Canada Post postmark date of

June 9, 2010.   The Canada Post “Registered Air Mail” sticker on

the front of the envelope includes a bar code and a 13-character

alphanumeric identifier (the unique identifier).   The envelope

does not bear a U.S. Postal Service postmark.

     In his petition, petitioner expressly references the January

15, 2010 notice of deficiency, and he attached a copy of that

notice to his petition as an exhibit.

     In an Order dated August 16, 2010, the Court directed the

parties to show cause in writing why this case should not be

dismissed for lack of jurisdiction on the ground that the

petition was not timely filed pursuant to section 7502.1

Petitioner filed a Response on September 1, 2010, pointing out

that the petition was received by the Court on June 17, 2010,

just 3 days after the June 14, 2010 “last day to file” date.

Petitioner implies in his Response that because the petition was

mailed from Victoria, British Columbia, Canada, on June 9, 2010,

and was received and filed by the Court on June 17, 2010, the


     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.
                               - 4 -

petition must have been in the U.S. Postal Service system at some

point on or before June 14, 2010.

     Respondent filed a Response to the Court’s August 16, 2010

Order on September 8, 2010, arguing that “The envelope containing

the Petition was not deposited in the mail in the United States

on or before the June 14, 2010 due date, and it was not received

by this Court until June 17, 2010.     The Petition in this case was

therefore not timely filed.”   Respondent attached to his Response

a U.S. Postal Service Form 3877 demonstrating that the notice of

deficiency was sent by registered mail to petitioner in Canada on

January 15, 2010.

     In the preamble of an Order dated September 13, 2010, the

Court stated, inter alia:

     The Canada Post tracking service indicates that the
     registered mail envelope containing the petition left
     Canada on June 10, 2010. * * * The USPS Track and
     Confirm service indicates that the registered mail
     envelope containing the petition arrived at the USPS
     International Service Center in Los Angeles,
     California, on June 11, 2010. * * *

The September 13, 2010 Order then directed respondent to file a

supplemental response to the Court’s Order dated August 16, 2010,

addressing the registered mail tracking data furnished by Canada

Post and the U.S. Postal Service.2     Such registered mail tracking

data includes the following:



     2
         Copies of such tracking data were attached to the Court’s
Order.
                                  - 5 -

Canada Post:

     Tracking Number:   The unique identifier

     Track Status:
        Product Type: Registered Mail USA
        Date          Time   Description
        6/17/2010     11:34  Item successfully delivered

     Track History:
        Date            Time      Description
        6/9/2010        13:08     Item accepted at the Post Office
                                  Victoria
         6/10/2010      13:51     International item has left Canada
         6/17/2010      11:34     Item successfully delivered


U.S. Postal Service:

     Label/Receipt Number:      The unique identifier

     Service(s): Registered Mail
     Status: Delivered

     Detailed Results:
          - Foreign International Dispatch, June 10, 2010, 1:51
            p.m., Vancouver, Canada
          - Inbound International Arrival, June 11, 2010, 10:21
            a.m., ISC Los Angeles, CA (USPS)
          - Arrival at Unit, June 17, 2010, 10:24 a.m.,
            Washington, D.C. 20022
          - Delivered, June 17, 2010, 11:34 a.m., Washington,
            D.C. 20217[3]

     In response to the Court’s Order dated September 13, 2010,

respondent filed a Supplemental Response on September 28, 2010.

In his response respondent states, inter alia:

     Under I.R.C. § 7502, a Petition will generally be
     considered timely filed if it is timely mailed.
     However, it is not enough that the envelope containing
     the Petition was deposited with the United States
     Postal Service in a timely fashion. The envelope must


     3
         “20217” is the ZIP Code unique to the Court.
                               - 6 -

     also bear a United States postmark date which is on or
     before the date of filing. I.R.C. § 7502(a)(2)(A).
     The timely mailing rule of section 7502 does not apply
     in the case of foreign postmarks. Sarrell v.
     Commissioner, 117 T.C. 122, 126 (2001).

     In support of his position, respondent asserts that the

envelope containing the petition bears a Canada Post postmark and

no U.S. Postal Service postmark.   Respondent further asserts that

the U.S. Postal Service is not required to affix a U.S. postmark

to mail received from a foreign country; therefore, according to

respondent, no U.S. postmark has been omitted and the Court may

not consider extrinsic evidence regarding the mailing of the

envelope.

     This matter was called for hearing at the Court’s trial

session in Seattle, Washington, on October 4, 2010.     Counsel for

respondent appeared and was heard.     In contrast, there was no

appearance by or on behalf of petitioner.

                             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

issuance of a valid notice of deficiency and the timely filing of

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

27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).
                               - 7 -

     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 the notice of

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

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

     There is no dispute in this case that respondent mailed the

notice of deficiency on January 15, 2010, to petitioner in

Victoria, British Columbia, Canada, where petitioner resides.

Because the notice of deficiency was addressed to a person outside

of the United States, the 150-day filing period applies.     The

150th day after January 15, 2010, was Monday, June 14, 2010, which

date was not a legal holiday in the District of Columbia.     See

secs. 6213(a), 7503; Rule 25(b).     However, as previously stated,

the petition was not received and filed by the Court until

Thursday, June 17, 2010.

     By virtue of section 7502(a), a petition that is timely

mailed is, in certain circumstances, deemed to be timely filed.

Specifically, section 7502(a)(1) provides that “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”.   Thus, the U.S. postmark date appearing on the envelope

containing the petition must be timely; that is, the postmark date
                                - 8 -

must fall within the applicable 90-day or 150-day period.

Although timely mailing is generally determined by the U.S.

postmark date, see sec. 7502(a); sec. 301.7502-1(c)(1), Proced. &

Admin. Regs., extrinsic evidence is admissible if a U.S. postmark

date is either illegible or missing, see Mason v. Commissioner, 68

T.C. 354 (1977); Sylvan v. Commissioner, 65 T.C. 548 (1975).

     Respondent contends that the U.S. Postal Service is not

required to affix a postmark to mail received from a foreign

country; therefore, in respondent’s view, no postmark has been

omitted and the Court may not consider extrinsic evidence

regarding a postmark.   However, neither the U.S. Postal Service

Domestic Mail Manual, nor its International Mail Manual, nor its

Postal Operations Manual prohibits a postmark from being placed on

inbound foreign mail.   In Elec. Automation Sys., Inc. v.

Commissioner, T.C. Memo. 1976-270, the petition was mailed from

Canada and it bore both a Canadian postmark and a U.S. postmark,

thereby demonstrating that a U.S. postmark may be placed on mail

received from a foreign country.

     The provisions of section 7502 generally contemplate that the

envelope is deposited with the domestic mail service of the U.S.

Postal Service.4   Sec. 7502(a)(2)(B); cf. sec. 7502(f).    A


      4
         Sec. 7502(b) provides that sec. 7502 “shall apply in the
 case of postmarks not made by the United States Postal Service
 only if and to the extent provided by regulations”. The
 regulations provide at sec. 301.7502-1(c)(1)(ii), Proced. &
                                                    (continued...)
                               - 9 -

document is deposited in the mail in the United States when it is

deposited with the domestic mail service of the U.S. Postal

Service.   Sec. 301.7502-1(c)(1)(ii), Proced. & Admin. Regs.

Section 752.13 of the U.S. Postal Service International Mail

Manual, Issue 37, June 7, 2010, states with regard to foreign

registered mail: “All mail registered by the country of origin

must be handled in the domestic First-Class Mail mailstream from

the exchange office to the office of delivery.”    Thus, once the

foreign registered mail arrives at the exchange office, such mail

is considered to have been deposited with the domestic mail

service of the U.S. Postal Service for eventual delivery to its

destination address.

     Petitioner mailed his petition from Victoria, British

Columbia, Canada, using the registered mail service of Canada Post

on June 9, 2010, the 145th day after the notice of deficiency was

sent to petitioner in Victoria.   A Canada Post postmark of June 9,

2010, is stamped on the front of the envelope.    The Canada Post

system, which allows for tracking of documents using a unique

identifier on the sticker affixed to the envelope, indicates that




     4
     (...continued)
 Admin. Regs., that “Section 7502 does not apply to any document
 * * * that is deposited with the mail service of any other
 country.”
                               - 10 -

the envelope in which the petition was mailed left Canada at 1:51

p.m. on June 10, 2010.5

     Although no U.S. Postal Service postmark is stamped on the

envelope, the U.S. Postal Service Track and Confirm service allows

for tracking of inbound registered mail using the same unique

identifier used for the Canada Post registered mail.6    The U.S.

Postal Service Track and Confirm service indicates that the

envelope in which the petition was mailed was received by the U.S.

Postal Service International Service Center in Los Angeles,

California, at 10:21 a.m. on June 11, 2010.    The envelope was then

dispatched to Washington, D.C., where it was received on June 17,

2010, at 10:24 a.m., and then delivered to the Court that same day

at 11:34 a.m.

     In Cespedes v. Commissioner, 33 T.C. 214 (1959), the

taxpayers mailed a petition from Cuba on the 151st day, but the

150th day was a Sunday.   See sec. 7503.   The envelope in which the

petition was delivered to the Court did not bear a U.S. postmark

nor, as the facts make clear, did the envelope even enter the

domestic mail system of the United States in a timely fashion.

The Court held that the petition was not timely filed.



      5
         The online Canada Post tracking feature is available at
 http://www.canadapost.ca/cpo/mc/default.jsf.

      6
         The online U.S. Postal Service Track and Confirm feature
 is available at http://www.usps.com/.
                              - 11 -

     In Donehey v. Commissioner, T.C. Memo. 1996-376, the petition

was mailed from the United Kingdom on the last day of the filing

period and was received by the Court thereafter.   The envelope

containing the petition did not bear a U.S. postmark and, as the

facts make clear, the envelope did not even enter the domestic

mail system of the United States in a timely fashion.    The Court

held that the petition was not timely filed.

     In Sarrell v. Commissioner, 117 T.C. 122 (2001), a collection

case involving a 30-day filing period, see sec. 6330(d), the

taxpayer mailed the petition on the 30th day from Israel.   In

Sarrell v. Commissioner, supra at 126 (citing Pekar v.

Commissioner, 113 T.C. 158, 168 (1999)), the Court stated that “it

is well settled that the timely mailing/timely filing rule of

section 7502(a) does not apply to foreign postmarks.”7   There was

no U.S. postmark on the envelope containing the petition and, as

the facts make clear, the envelope did not even enter the domestic

mail system of the United States in a timely fashion.    The Court

held that the petition was not timely filed.




      7
         Pekar v. Commissioner, 113 T.C. 158 (1999), deals in part
 with the timely mailing/timely filing of a Federal income tax
 return in an envelope bearing a foreign postmark. As relevant,
 the Court held that “foreign postmarks do not effectively cause
 the filing date of a document to be the postmark date.” Id. at
 168. In contrast, the Internal Revenue Service has ruled that a
 Federal income tax return with a timely foreign postmark is to be
 accepted as timely filed. Rev. Rul. 2002-23, 2002-1 C.B. 811.
                                 - 12 -

        The present case differs from Cespedes, Donehey, and Sarrell

in that the petition in this case was mailed by registered mail

from a foreign country well before the last day of the filing

period; the petition entered the domestic mail service of the

United States before such last day; and such date of entry is

demonstrated by the official records of the U.S. Postal Service.

     In addition, petitioner mailed the petition using registered

mail, albeit from Canada Post.    Registered mail originating in the

United States has long been promoted as the taxpayer’s saving

grace in terms of ensuring timely filing.    See, e.g., Madison v.

Commissioner, 28 T.C. 1301, 1302-1303 (1957); see also sec.

301.7502-1(c)(2), Proced. & Admin. Regs.    The use of Canada Post

registered mail resulted in the petition being tracked from its

point of origin in Victoria, British Columbia, Canada, to its

delivery to the Court in Washington, D.C., by the official

tracking services of both Canada Post and the U.S. Postal Service.

As previously stated, the official Track History of Canada Post

demonstrates that the envelope in question left Vancouver, Canada,

at 1:51 p.m. on June 10, 2010, and the official Track and Confirm

service of the U.S. Postal Service shows that the envelope arrived

at the U.S. Postal Service International Service Center in Los

Angeles, California, and was processed at 10:21 a.m. on June 11,

2010.
                                - 13 -

     The U.S. Postal Service Track and Confirm service provides

reliable data from a neutral third-party source that is not

susceptible to manipulation by the parties.     Indeed, the

Commissioner has relied upon the U.S. Postal Service Track and

Confirm service.    See, e.g., Sebastian v. Commissioner, T.C. Memo.

2007-138 (demonstrating that an incorrect ZIP Code did not delay

attempted delivery of a notice of determination).     In addition,

respondent has at no time suggested that the U.S. Postal Service

Track and Confirm data is less reliable or accurate than a

postmark in identifying the point in time that an envelope enters

the domestic mail service of the United States.

     In sum, the U.S. Postal Service Track and Confirm service

clearly and unequivocally demonstrates that the petition in the

instant case entered the domestic mail service of the United

States on June 11, 2010.   In the context of the present case, we

regard the U.S. Postal Service Track and Confirm data as

tantamount to, and/or the functional equivalent of, a U.S. Postal

Service postmark.   See sec. 7502(f) (regarding the treatment of

private delivery services and the use of corporate records

electronically written to a database); cf. Abeles v. Commissioner,

91 T.C. 1019, 1034-1035 (1988) (regarding adapting the law to

reflect technological advancements).     Accordingly, we hold that

the petition in this case was timely filed and that we do have

jurisdiction to hear petitioner’s case.
                         - 14 -

To give effect to the foregoing,


                                   An order will be issued

                              discharging the show cause

                              portion of the Court’s Order

                              dated August 16, 2010.
