                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         July 1, 2008
                      UNITED STATES COURT OF APPEALS
                                                                    Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                       Clerk of Court



    LOUIS P. MITCHELL,

                Petitioner-Appellant,                     No. 07-9002
                                                      (T.C. No. 19258-04L)
    v.                                                (Petition for Review)

    COMMISSIONER OF INTERNAL
    REVENUE,

                Respondent-Appellee.


                                        ORDER *


Before BRISCOE, PORFILIO, and BALDOCK, Circuit Judges.



         Petitioner Louis P. Mitchell, appearing pro se, petitions for review of the

Tax Court’s November 6, 2006, memorandum opinion explaining its reasons for

granting summary judgment in favor of the Commissioner. Because Mr. Mitchell

is pro se, we have construed his pleadings liberally. See Haines v. Kerner,

404 U.S. 519, 520-21 (1972) (per curiam). Having determined that we lack

jurisdiction over the petition for review, we dismiss it.



*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
                                          I.

      In October 2004, Mr. Mitchell filed a petition in the Tax Court seeking

review of a notice of levy pertaining to his tax liability for tax year 2000. The

Commissioner moved for summary judgment. The Tax Court issued a

memorandum opinion in favor of the Commissioner on November 6, 2006.

R., Doc. 30. Mr. Mitchell presented a motion to the court captioned “Motion for

Reconsideration of November 6, 2006, Memorandum Opinion.” R., Doc. 32. The

motion is dated December 6, 2006, but the Tax Court did not file it until

December 13. While Mr. Mitchell’s motion for reconsideration was presumably

in the mail, the Tax Court entered a summary order and decision granting

summary judgment to the Commissioner on December 8, 2006, which made its

November 6 memorandum opinion final. Id., Doc. 31. The Tax Court stamped

Mr. Mitchell’s motion for reconsideration “DENIED” on December 15, 2006. See

id., Doc. 32. Mr. Mitchell later mailed a notice of appeal from the Tax Court’s

November 6, 2006, memorandum opinion. Id., Doc. 33. The envelope was

postmarked March 10, 2007. Id.

                                          II.

      “The timely filing of a notice of appeal from the Tax Court is mandatory

and jurisdictional.” Twenty Mile Joint Venture, PND, Ltd. v. Comm’r, 200 F.3d

1268, 1274 (10th Cir. 1999). Under 26 U.S.C. § 7483, Mr. Mitchell had ninety

days after the entry of the Tax Court’s December 8, 2006, order and decision to

                                         -2-
file his notice of appeal. See also Fed. R. App. P. 13(a)(1). When a document is

mailed to the Tax Court, the postmark on the envelope is “deemed to be the date

of delivery[.]” 26 U.S.C. § 7502(a)(1); see also Umbach v. Comm’r, 357 F.3d

1108, 1111 (10th Cir. 2003). Ninety days from the Tax Court’s December 8,

2006, order and decision was March 8, 2007. Mr. Mitchell’s March 10, 2007,

notice of appeal was therefore untimely as to the Tax Court’s December 8, 2006,

order and decision and the underlying November 6, 2006, memorandum opinion,

and it does not confer jurisdiction over the November 6, 2006, memorandum

opinion on this court.

      Although Mr. Mitchell’s notice of appeal would have been timely to appeal

the Tax Court’s December 15, 2006, order denying reconsideration, it is otherwise

defective to confer jurisdiction on this court over that order. The contents of a

notice of appeal are governed by Fed. R. App. P. 3(c), which applies to tax

appeals under Fed. R. App. P. 13(c). Mr. Mitchell’s notice of appeal did not

designate the Tax Court’s December 15, 2006, order denying reconsideration, as

required by Rule 3(c)(1)(B), and the notice of appeal therefore does not confer

jurisdiction on this court over that order.

                                          III.

      We have also considered whether Mr. Mitchell’s December 13, 2006,

motion for reconsideration can properly be construed in a manner that would




                                          -3-
provide jurisdiction over his petition for review, but we have concluded that it

cannot.

      If the motion for reconsideration were construed as a notice of appeal, it

would be timely to appeal the Tax Court’s November 6, 2006, memorandum

opinion. And Mr. Mitchell’s identification of the Ninth Circuit as the court to

which he might appeal, see R., Doc. 32, at 1 ¶ 3, is merely a technical violation of

Rule 3(c)(1)(C) that would not be fatal to our jurisdiction. See United States v.

Garcia, 459 F.3d 1059, 1062 n.1 (10th Cir. 2006).

      But Mr. Mitchell’s motion for reconsideration does not satisfy “[t]he

purpose of Rule 3(c)’s requirements . . . to provide all parties and the court with

sufficient notice of a litigant’s intent to seek appellate review.” Berrey v. Asarco

Inc., 439 F.3d 636, 642 (10th Cir. 2006) (citing Smith v. Barry, 502 U.S. 244, 248

(1992)). “We must ‘construe Rule 3 liberally when determining whether it has

been complied with.’” United States v. Smith, 182 F.3d 733, 735 (10th Cir. 1999)

(quoting Smith v. Barry, 502 U.S. at 248). Nevertheless, Mr. Mitchell’s motion

for reconsideration clearly sought relief solely from the Tax Court. It did not

evidence any intent to seek immediate appellate review, and it therefore cannot be

the functional equivalent of a notice of appeal. Cf. Smith v. Barry, 502 U.S.

at 248-49 (holding that appellate brief may substitute as notice of appeal if it

provides notice required by Rule 3(c)); Fleming v. Evans, 481 F.3d 1249, 1253-54

(10th Cir. 2007) (construing combined motion for leave to proceed on appeal

                                          -4-
without prepayment of costs or fees and application for certificate of appealability

and pro se docketing statement as functional equivalent of notice of appeal

because documents, together, provided notice required by Rule 3(c)); United

States v. Smith, 182 F.3d at 735-36 (construing “Motion For Out of Time Notice

of Appeal” as notice of appeal because it provided notice required by Rule 3(c));

Hatfield v. Bd. of County Comm’rs, 52 F.3d 858, 860-62 & n.3 (10th Cir. 1995)

(construing combined “Motion for Reconsideration of Order Granting Summary

Judgment or in the Alternative a Notice of Appeal” as notice of appeal because it

provided notice required by Rule 3(c); there was “no importance in the fact that

plaintiff phrased his notice of appeal as an alternative to the motion” for

reconsideration).

      Mr. Mitchell’s December 13, 2006, motion for reconsideration was also

untimely under the Tax Court Rules, see Tax Ct. R. 161, and it would be equally

untimely under the Tax Court Rules if we construed it as a motion to vacate or

revise the Tax Court’s decision, see Tax Ct. R. 162. Although Mr. Mitchell avers

that he mailed the motion for reconsideration on December 6, 2006, nothing in the

record proves the date of mailing under 26 U.S.C. § 7502, and his

“uncorroborated self-serving testimony of mailing” is insufficient. See Sorrentino

v. IRS, 383 F.3d 1187, 1194 (10th Cir. 2004). As a result, the motion for

reconsideration cannot be given tolling effect under Fed. R. App. P. 13(a)(2),

which provides that “a timely motion to vacate or revise the Tax Court’s

                                          -5-
decision” tolls the time for appeal. Furthermore, this court has never given

tolling effect in a tax appeal to a motion for reconsideration, which is not

mentioned in Rule 13. The Ninth Circuit has done so, but the motion to which it

gave tolling effect was timely filed. See Nordvik v. Comm’r, 67 F.3d 1489,

1493-94 (9th Cir. 1995). Mr. Mitchell’s motion for reconsideration was untimely,

and he therefore cannot rely on the Ninth Circuit’s decision.

      The petition for review is DISMISSED for lack of jurisdiction.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




                                          -6-
