                        T.C. Memo. 2015-188



                  UNITED STATES TAX COURT



            ROBERT H. TILDEN, Petitioner v.
    COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 11089-15.                         Filed September 22, 2015.



       P’s petition for redetermination was delivered to the Court by
the U.S. Postal Service (USPS) 98 days after R mailed the notice of
deficiency. The envelope containing the petition bore a mailing label
generated by P that included a “postmark” by Stamps.com of the 90th
day. The envelope also bore a certified mail sticker with a tracking
number. Although the envelope did not bear a USPS postmark, USPS
Tracking data for the envelope, which data provides information
regarding the flow of mailpieces through the mail system from arrival
through delivery, reflected an arrival date of the 92d day and a
delivery date of the 98th day.

     R filed a motion to dismiss for lack of jurisdiction on the
ground that the petition was not timely filed.

      Held: The Stamps.com “postmark” is disregarded in favor of
USPS Tracking data. Boultbee v. Commissioner, T.C. Memo. 2011-
11; sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs.
                                        -2-

[*2]         Held, further, the petition was not timely mailed and was
       therefore not timely filed. R’s motion will be granted.


       Paul W. Jones, for petitioner.

       Skyler K. Bradbury, for respondent.



                           MEMORANDUM OPINION


       ARMEN, Special Trial Judge: This action is one for redetermination of

deficiencies and accuracy-related penalties for 2005 and 2010 through 2012.1 See

secs. 6213(a), 6662(a), 6665(a); Rules 20(a), 34(a)(1).2

       Presently pending before the Court is respondent’s Motion To Dismiss For

Lack Of Jurisdiction, filed June 8, 2015. In his motion respondent moves to

dismiss this case “upon the ground that the petition was not filed within the time

prescribed by sections 6213(a) or 7502”. On June 30, 2015, petitioner filed a

Response to respondent’s motion. In his Response petitioner objects to the

granting of respondent’s motion, arguing that a Stamps.com “postmark” is


       1
       The sum of the deficiency and penalty placed in dispute does not exceed
$50,000 for any of the four calendar years in issue. See I.R.C. sec. 7443A(b)(3).
       2
        Unless otherwise indicated, all section references are to the Internal
Revenue Code of 1986, as amended, and all Rule references are to the Tax Court
Rules of Practice and Procedure.
                                         -3-

[*3] “evidence of a timely filed petition pursuant to Reg. §301.7502-1.” The

parties further elaborated on their respective positions, with respondent filing a

Reply to petitioner’s Response and petitioner filing a Response to respondent’s

Reply.

      At the time that the petition was filed, petitioner resided in the State of

Wisconsin.

                                     Background

      On January 21, 2015, respondent sent by certified mail duplicate notices of

deficiency to petitioner.3 At least one, if not both, of the notices was received by

petitioner.

      The 90th day after the mailing of the notices of deficiency was April 21,

2015, which was a Tuesday and not a legal holiday in the District of Columbia.

      Petitioner sought to challenge respondent’s deficiency and penalty

determinations by appealing to this Court. See sec. 6213(a). The “Petition For

Redetermination Of Deficiency (Regular Tax Court Case)” was received by the


      3
        Except as to the four-digit extension to the five-digit ZIP Code, one of the
two addresses is the same as petitioner’s current mailing address as alleged by him
in paragraph 1 of his petition filed April 29, 2015.
       Also, a copy of only one of the notices of deficiency is in the record, and it is
dated January 21, 2015 (and not January 22, 2015, as alleged by respondent in the
motion that is now before the Court).
                                        -4-

[*4] Court in the late morning of Wednesday, April 29, 2015, and filed shortly

before noon of that day. The petition was sent via the U.S. Postal Service (USPS)

by first-class mail. The envelope containing the petition bears a mailing label

generated by a clerical employee in the office of petitioner’s counsel, which label

includes a “postmark” by “Stamps.com” of April 21, 2015.4 The envelope also

bears a certified mail sticker with a 20-digit tracking number.5 The envelope does

not bear a USPS postmark.

      Although petitioner is a resident of the State of Wisconsin, the office of

petitioner’s counsel is located in Salt Lake City, Utah. A clerical employee in the

office of petitioner’s counsel mailed the envelope containing the petition at a post

office in Salt Lake City.


      4
        Stamps.com Inc. is a publicly traded company (NASDAQ: STMP) that is
headquartered in El Segundo, California, and that provides Internet-based postage
services. The company’s online postage service provides a user the ability to buy
and print USPS-approved postage directly from the user’s computer. See
http://www.stamps.com/company-info/. “Simply log-in to Stamps.com, print your
postage then drop your letters and packages into any mailbox, hand them to your
postal carrier or schedule a USPS pick-up right through the software.” See
http://www.stamps.com/postage-online/post-office/.
      5
        It would appear that the certified mail sticker was applied to the envelope
by the same clerical employee in the office of petitioner’s counsel. Regardless, PS
Form 3800, Certified Mail Receipt, was not postmarked by a USPS employee.
Rather, a clerical employee in the office of petitioner’s counsel handwrote the date
“4/21/15” in the portion of the “receipt” where a USPS employee would otherwise
have postmarked it.
                                         -5-

[*5] The USPS web site (www.USPS.com) provides information regarding the

flow of mailpieces through the mail system from arrival through delivery. Such

information is made possible through tracking numbers that are assigned to

individual mailpieces. As stated above, the envelope containing the petition in the

instant case bears a 20-digit tracking number. Plugging that number into the

tracking tool at the USPS web site (USPS Tracking, or formerly USPS Track &

Confirm) yields tracking information regarding the mailpiece in question. Thus,

the first entry reflects an arrival date and time of April 23, 2015, at 2:48 p.m. at a

USPS facility in Salt Lake City, Utah 84199, and the last entry reflects a delivery

date and time of April 29, 2015, at 11:02 a.m. at Washington, D.C. 20217. The

latter ZIP Code, 20217, is the Court’s dedicated ZIP Code.

      As previously stated, respondent filed his Motion To Dismiss For Lack Of

Jurisdiction on June 8, 2015. In his motion, respondent relies on USPS tracking

information in arguing that the petition was not timely filed with the Court.

Petitioner objects to the granting of the motion, and in his Response filed June 30,

2015, he argues that the envelope containing the petition “bears a postmark date

within the time for filing”. In support of that argument, petitioner cites section

301.7502-1(c)(1)(iii)(B), Proced. & Admin. Regs., for the proposition that a

postmark “which, although not made by the U.S. Postal Service still complies with
                                         -6-

[*6] the timely mailing/timely filing rules of I.R.C. §7502.” In his Reply filed July

21, 2015, respondent challenges petitioner’s reliance on the regulation, and in his

Response filed August 3, 2015, petitioner defends it.

                                     Discussion

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

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

Commissioner, 85 T.C. 527, 529 (1985). The Court’s jurisdiction to redetermine a

deficiency in income tax depends on the 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 the United States) to file a petition with this Court for

redetermination of the contested deficiency. Sec. 6213(a). By virtue of section

7502, a petition that is timely mailed may be deemed to be timely filed.

      In the instant case there is no issue regarding the validity of the duplicate

notices of deficiency, and the parties agree that whether the Court has, or lacks,

jurisdiction turns on whether the petition was timely filed. The parties also agree
                                        -7-

[*7] that the 90-day, and not the 150-day, filing window applies because neither

notice was addressed to a person outside the United States.

      It is clear that respondent sent the notices of deficiency to petitioner by

certified mail on January 21, 2015, as demonstrated by the USPS Form 3877, Firm

Mailing Book For Accountable Mail, that was attached as an exhibit to

respondent’s motion to dismiss. See Magazine v. Commissioner, 89 T.C. 321, 327

n.8 (1987) (holding that USPS Form 3877 represents direct evidence of the date of

mailing of the notice of deficiency); see also Clough v. Commissioner, 119 T.C.

183, 187-188 (2002) (overruling various challenges by a taxpayer to the

introduction into evidence of a certified mail list--the equivalent of a USPS Form

3877--by the Commissioner). The 90th day after the date of mailing was Tuesday,

April 21, 2015, which was not a legal holiday in the District of Columbia. See

sec. 7503. However, the petition was not received and filed by the Court until

Wednesday, April 29, 2015, the 98th day after the date that the notices were

mailed. Thus, the petition was not timely filed and respondent’s motion must be

granted unless the petition is deemed to have been timely filed by virtue of having

been timely mailed.
                                         -8-

[*8] A. Petitioner’s Position

      Petitioner argues that the petition was timely mailed and therefore timely

filed. In that regard petitioner argues that the Stamps.com “postmark” appearing

on the mailing label affixed to the envelope in which the petition was mailed

constitutes a “postmark” that is governed by section 301.7502-1(c)(1)(iii)(B)(1),

Proced. & Admin. Regs. That section provides as follows:

              (B) Postmark made by other than U.S. Postal Service.--(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 mailing the payment.

B. Respondent’s Position

      Respondent counters by arguing that “the Stamps.com shipping label used

by petitioner in this case includes only the date of the purchase [and] does not

indicate the place or date of sending or receipt.” In addition, respondent argues

that the governing regulation is not the one relied on by petitioner but rather is
                                        -9-

[*9] section 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs., which provides

as follows:

             (B) Postmark made by other than U.S. Postal Service.--* * *
                    *       *       *       *       *       *      *
                    (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.

In respondent’s view, petitioner has failed to satisfy the three requirements of

section 301.7502-1(c)(1)(iii)(B)(2)(i) through (iii), Proced. & Admin. Regs. See,

e.g., Ernest v. Commissioner, T.C. Memo. 2002-23.

C. Analysis

      In the Court’s view, the jurisdictional issue for decision is controlled not by

section 301.7502-1(c)(1)(iii)(B)(1), Proced. & Admin. Regs., as argued by

petitioner, nor by section 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs., as
                                        - 10 -

[*10] argued by respondent, but rather by section 301.7502-1(c)(1)(iii)(B)(3),

Proced. & Admin. Regs. The latter section provides as follows:

             (3) U.S. and non-U.S. postmarks.--If the envelope has a
      postmark made by the U.S. Postal Service in addition to a postmark
      not so made, the postmark that was not made by the U.S. Postal
      Service is disregarded, and whether the envelope was mailed in
      accordance with this paragraph (c)(1)(iii)(B) will be determined
      solely by applying the rule of paragraph (c)(1)(iii)(A) of this section.

The “rule of paragraph (c)(1)(iii)(A) of this section” appears in section 301.7502-

1(c)(1)(iii)(A), Proced. & Admin. Regs., and, as immediately relevant, provides

that the USPS postmark is conclusive in determining whether the document was

timely mailed.6 See Sanchez v. Commissioner, T.C. Memo. 2014-223 (holding

mark from Stamps.com disregarded in favor of USPS postmark).

      Admittedly, in the instant case no postmark made by the USPS appears on

the envelope in which the petition was mailed to the Court. However, USPS

Tracking (formerly USPS Track & Confirm) reflects that the envelope entered the

U.S. mail system on April 23, 2015. In Boultbee v. Commissioner, T.C. Memo.

2011-11, 2011 WL 94744, at *5, the Court expressly decided that USPS Track &


      6
        “If the postmark does not bear a date on or before the last date, or the last
day of the period, prescribed for filing the document or making the payment, the
document or payment is considered not to be timely filed or paid, regardless of
when the document or payment is deposited in the mail.” Sec. 301.7502-
1(c)(1)(iii)(A), Proced. & Admin. Regs. (emphasis added).
                                       - 11 -

[*11] Confirm data, which represents “official records of the U.S. Postal Service”,

can serve as the functional equivalent of, or be tantamount to, a USPS postmark.

See also sec. 7502(f) (regarding the treatment of private delivery services and the

use of corporate records electronically written to a database as a postmark). After

all, both USPS Tracking data and the more traditional postmark are products of the

USPS, and nothing would suggest that the former is not as reliable and accurate as

the latter when it comes to determining the time of mailing. See id. As we stated

in Boultbee v. Commissioner, 2011 WL 94744, at *5, “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.” See also Abeles v.

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

reflect technological advancements).

      Petitioner argues that USPS Tracking data does not accurately reflect either

where or when the envelope first entered the USPS mailstream. But this is no

different from the argument made in other cases that the USPS failed to promptly

place a traditional postmark on an envelope containing a petition either because

the postmarking was performed at a postal facility other than the one where the

envelope was placed into the mailstream or because the USPS was dilatory in

postmarking the envelope. E.g., Drake v. Commissioner, 554 F.2d 736 (5th Cir.
                                        - 12 -

[*12] 1977) (holding that a petition mailed on the 90th day from a post office in

Galveston, Texas, but postmarked in Houston on the following day, which

“regional” postmarking led to the delay in postmarking, was nevertheless

untimely, thereby justifying the dismissal of the case), aff’g an unpublished order

of this Court; Sanchez v. Commissioner, T.C. Memo. 2014-223 (holding that a

postmark made by the USPS in Salt Lake City, Utah, was definitive

notwithstanding the fact that the petition was mailed from Bountiful, Utah, some

10 miles distant).

      As section 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs., makes clear,

“the sender who relies upon the applicability of section 7502 assumes the risk that

the postmark will bear a date on or before the last date, or the last day of the

period, prescribed for filing the document”. The regulation goes on to advise that

such risk may be avoided by using registered mail or by using certified mail and

having the sender’s receipt postmarked by the postal employee to whom the

document is presented. Similarly, section 301.7502-1(c)(2), Proced. & Admin.

Regs., advises that “the risk that the document or payment will not be postmarked

on the day that it is deposited in the mail may be eliminated by the use of

registered or certified mail.” See Brown v. Commissioner, T.C. Memo. 1982-165

(holding that in the case of certified mail, such risk may be eliminated only if the
                                        - 13 -

[*13] sender’s receipt is postmarked by a USPS employee). Such risk may also be

avoided through the judicious use of a designated delivery service. See sec.

7502(f)(2)(C); sec. 301.7502-1(c)(3), Proced. & Admin. Regs.; Notice 2004-83,

2004-2 C.B. 1030.7

      In the instant case, the “sender’s receipt for certified mail” was not

postmarked by a USPS employee but rather was handwritten by an employee of

petitioner’s counsel. Therefore, sending the petition by certified mail afforded

petitioner no guarantee of a timely postmark, and he assumed the risk that the

postmark would bear a date on or before the last day of the 90-day period

prescribed for filing the petition. Unfortunately for petitioner, the Stamps.com

“postmark” upon which he relies is superseded by USPS Tracking data, which

tracking data serves as a postmark, see Boultbee v. Commissioner, T.C. Memo.

2011-11, and is therefore conclusive in determining whether the petition was

timely mailed, see sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs. In

the instant case, USPS Tracking data demonstrates that the petition was not timely

mailed.


      7
        The substance of Notice 2004-83, 2004-2 C.B. 1030, now appears in
Notice 2015-38, 2015-21 I.R.B. 984, which was effective May 6, 2015, after the
petition in the instant case was filed.
                                           - 14 -

[*14]                                 Conclusion

        The petition in this case was neither filed nor mailed within the requisite 90-

day period. Accordingly, the Court is constrained to grant respondent’s motion to

dismiss. However, it bears mention that although petitioner cannot pursue his case

in this Court, he is not without a judicial remedy. Specifically, petitioner may pay

the tax, file a claim for refund with the Internal Revenue Service, and, if his claim

is denied, sue for a refund in the appropriate Federal District Court or the U.S.

Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5

(1970); see also Weber v. Commissioner, 138 T.C. 348, 366-367 (2012).

        To give effect to the foregoing,



                                                    An order granting respondent’s

                                           motion and dismissing this case for lack

                                           of jurisdiction will be entered.
