                                                                          FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                    February 12, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                TENTH CIRCUIT



 VAL GIBSON,

               Petitioner-Appellant,                     No. 07-9008
          v.                                      (United States Tax Court)
 COMMISSIONER OF INTERNAL                            (CIR No. 23060-05)
 REVENUE,

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges. **


      Val Gibson petitioned the United States Tax Court for redetermination of

deficiencies in income taxes asserted by the Commissioner of Internal Revenue

for the 1999, 2001, and 2002 tax years. The court concluded that Gibson’s

petition had not been timely filed, dismissed the case for lack of jurisdiction, and

denied Gibson’s motion to vacate the dismissal order.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      Exercising jurisdiction under 26 U.S.C. § 7482(a), we AFFIRM.

                                 I. Background

      On August 31, 2005, the Commissioner issued Gibson a notice of

deficiency for the 1999, 2001, and 2002 tax years. Pursuant to 26 U.S.C.

§§ 6213(a) and (c), a taxpayer must file a petition for redetermination of the

asserted deficiencies within 90 days of the issuance of the notice. The 90th day

after August 31, 2005, was November 29, 2005.

      On November 29, 2005, Gibson visited a United Parcel Service mail

packing store in Las Vegas, Nevada, and paid to have his petition for

redetermination mailed, via certified mail, to the United States Tax Court. A UPS

employee date-stamped a certified mail sender’s receipt (PS Form 3800) and gave

it to Gibson, along with a sales receipt for the transaction. The date-stamp on the

certified mail sender’s receipt is November 29, 2005, and the sales receipt is

dated November 29, 2005, at 1:01 PM.

      For reasons that are unclear, the UPS store apparently waited until the next

day and placed a postage meter stamp dated November 30, 2005, on the envelope,

and deposited the envelope with the United States Postal Service. The Tax Court

received the petition on December 5, 2005. The Commissioner moved to dismiss

the petition on the grounds that it was untimely filed because the envelope was




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postmarked November 30, 2005. 1 The Tax Court granted the motion and Gibson

appeals the decision.

                                  II. Discussion

      Whether the Tax Court correctly dismissed a petition for lack of

jurisdiction is a mixed question of law and fact. The Tax Court’s factual findings

are reviewed for clear error, and its legal conclusions are reviewed de novo.

Anderson v. Comm’r, 62 F.3d 1266, 1270 (10th Cir. 1995).

      A. Statutory requirements for timely filing

      The Tax Court is a court of limited jurisdiction, and its power depends

upon express statutory authority. See Commissioner v. McCoy, 484 U.S. 3, 7

(1987). If a taxpayer fails to file a petition within the 90-day period, the Tax

Court lacks jurisdiction to redetermine the deficiency, and the petition must be

dismissed for lack of jurisdiction. See Armstrong v. Comm’r, 15 F.3d 970, 973

n.2 (10th Cir. 1994); Foster v. Comm’r, 445 F.2d 799, 800 (10th Cir. 1971). The

90-day statutory period “cannot be extended by the Court.” Tax Ct. R. 25(c).

      As a general rule, a petition mailed by a taxpayer is considered filed when

it is received by the Tax Court. Crook v. Comm’r, 173 F. App’x 653, 655 (10th

Cir. Mar. 27, 2006); Sylvan v. Comm’r, 65 T.C. 548, 550 (1975). In this case, the

Tax Court received the petition after the ninety–day period expired.


      1
        The Commissioner did allow Gibson the opportunity for audit
reconsideration notwithstanding its decision to deny the untimely filed petition.

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      Several exceptions to this rule are provided by statute. See 26 U.S.C.

§ 7502. Under the first exception, “the date of the United States postmark

stamped on the cover in which such [petition] is mailed shall be deemed to be the

date of delivery.” Id. § 7502(a)(1). The date stamped on Gibson’s envelope was

November 30, 2005. Because the deadline to file the petition was November 29,

this exception does not apply.

      Gibson nonetheless contends that his petition is timely under a separate

exception described in § 7502(c)(1). Under this provision, if any petition “is sent

by United States registered mail . . . such registration shall be prima facie

evidence that the [petition] was delivered to the agency . . . and . . . the date of

registration shall be deemed the postmark date.” Id. Gibson argues that pursuant

to § 7502(c)(1), the stamped certified mail sender’s receipt, dated November 29,

2005, should be treated as prima facie evidence that he timely mailed his petition.

      Section 7502(c)(2), however, authorizes the United States Treasury

Department to “provide by regulations the extent to which the provisions of

paragraph (1) with respect to prima facie evidence of delivery and the postmark

date shall apply to certified mail.” These regulations are described in 26 C.F.R.

§ 301.7502-1(c). In particular, “[i]f the document or payment is sent by U.S.

certified mail and the sender’s receipt is postmarked by the postal employee to

whom the document or payment is presented, the date of the U.S. postmark on the

receipt is treated as the postmark date of the document or payment.” Id.

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§ 301.7502-1(c)(2) (emphasis added). This regulation does not permit someone

other than a postal employee to place the postmark on the receipt. Congress and

the Treasury Department intended § 7502(c)(1) to be a narrow exception because

“[t]he scheme of the statute and implementing regulations is designed to avoid

testimony as to [the] date of mailing in favor of tangible evidence in the form of

an official government notation.” Shipley v. Comm’r, 572 F.2d 212, 214 (9th Cir.

1977). This exception therefore does not apply to Gibson’s petition because his

receipt was postmarked by a UPS employee, not a postal employee.

      Finally, 26 U.S.C. § 7502(f) permits the mark of certain private delivery

services to be treated the same as a United States postmark. The Internal

Revenue Service designated the following UPS services to be treated in such a

manner: UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS

2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.

IRS Notice 2004-83, 2004-2 C.B. 1030. This exception does not apply to

Gibson’s petition, however, because he did not use any of these designated

services. Instead, he mailed the petition via certified mail.

      Accordingly, Gibson is not entitled to any of the statutory exceptions

provided by Congress.

      2. Common law mailbox rule

      Gibson also argues his petition was timely filed pursuant to the common

law mailbox rule. Under the mailbox rule, “proof of mailing of a properly

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addressed communication bearing proper postage creates a rebuttable presumption

the communication was received.” Sorrentino v. IRS, 383 F.3d 1187, 1188 (10th

Cir. 2004).

        In Sorrentino, the IRS required the petitioners to file their 1994 income tax

return by August 15, 1998. The taxpayers alleged that they timely mailed their

1994 return to the IRS via regular United States postal mail in March 1998, in

plenty of time for it to be delivered by August 15. The IRS, however, insisted it

had no record of receiving the taxpayers return until October 1998. The IRS

disallowed the taxpayers’ refund claim, and the taxpayers sued the IRS. Id. at

1188.

        The IRS moved for summary judgment, arguing the taxpayers’ claim was

time-barred. In response to the summary judgment motion, Mr. Sorrentino

produced an affidavit stating that he mailed the return in March 1998. The tax

return also included a signature date of March 1. Id. at 1189. Over the IRS’s

objection, the district court applied the common law mailbox rule and denied the

IRS’s motion. Id. at 1188–89. The court subsequently granted the taxpayers’

summary judgment motion on the merits.

        On appeal, the IRS argued that the district court erred in denying the IRS’s

summary judgment motion because 26 U.S.C. § 7502 completely displaced the

common law mailbox rule. We held otherwise. A majority of the panel

concluded the mailbox rule survived the enactment of § 7502. See Sorrentino,

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383 F.3d at 1194. The panel disagreed, however, about what evidence the

taxpayer must produce at the summary judgment stage to trigger the mailbox

rule’s presumption of delivery. See id. at 1195.

      Thus, under Sorrentino, even if Gibson produced sufficient evidence to

trigger the mailbox rule, Gibson’s petition would still be untimely. The mailbox

rule merely creates a rebuttable presumption that the letter “reached its

destination at the regular time.” Sorrentino, 383 F.3d at 1189 (quoting Rosenthal

v. Walker, 111 U.S. 185 (1884)). Unlike in Sorrentino, Gibson and the

Commissioner agree that the Tax Court received Gibson’s petition on December

5, 2005. This concession, therefore, rebuts any presumption that the documents

arrived at the Tax Court on an earlier date. 2

      For these reasons, we conclude the Tax Court properly dismissed Gibson’s

petition because it was untimely. Parenthetically, although we affirm the

dismissal of Gibson’s petition, we note he is not without a remedy. He may still

pay the deficiency determined against him and file a claim for refund with the

IRS. If the IRS denies his claim or fails to act on it within six months, he may

seek relief in the appropriate district court or the United States Court of Federal



      2
        Even if Gibson had not made this concession, a court applying the
mailbox rule would still conclude that his petition was untimely. Under the rule,
we would not presume the mail to be delivered the same day it was received from
the sender. Because Gibson gave the letter to UPS on November 29, a court
would not presume the Tax Court received the letter the same day.

                                           -7-
Claims. See 26 U.S.C. §§ 6511(a), 6532(a)(1), 7422(a); 28 U.S.C. §§ 1346(a)(1),

1491(a)(1); Armstrong, 15 F.3d at 974 n.2.

                                III. Conclusion

      Accordingly, we AFFIRM the district court’s order dismissing Gibson’s

petition.

                               Entered for the Court,


                               Timothy M. Tymkovich
                               United States Circuit Judge




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