                  T.C. Summary Opinion 2010-116



                     UNITED STATES TAX COURT



                  SHARON K. BELL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1420-10S.               Filed August 17, 2010.



     Sharon K. Bell, pro se.

     John W. Strate and Timothy Froehle (specially recognized),

for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463.1   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,



     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect when the petition was filed,
and all Rule references are to the Tax Court Rules of Practice
and Procedure.
                                - 2 -

and this opinion shall not be treated as precedent for any other

case.

     This matter is before the Court on respondent’s Motion To

Dismiss For Lack Of Jurisdiction, filed February 25, 2010.

Respondent moves to dismiss this case on the ground that the

petition was not filed within the time prescribed by section

6213(a) or section 7502.   For reasons discussed hereinafter, we

shall grant respondent’s motion.

                             Background

     At the time that the petition was filed, petitioner resided

in the State of Oregon.

     On October 7, 2009, respondent sent petitioner a notice of

deficiency.   The notice of deficiency, which was sent to

petitioner by certified mail addressed to her at her last known

address, determined deficiencies in income taxes for 2006 and

2007 of $8,895 and $2,806, respectively, and accuracy-related

penalties under section 6662(a) for those 2 years of $1,779 and

$561.20, respectively.    Petitioner received a copy of the notice

of deficiency on November 16, 2009.2



     2
        The record does not disclose whether petitioner received
the original notice of deficiency or, if not, what may have
happened to it. The record does disclose that on Nov. 13, 2009,
petitioner requested a copy of the notice of deficiency and that
on Nov. 16, 2009, a copy was faxed to her by respondent’s
Taxpayer Advocate Service.
                                - 3 -

     The first page of the notice of deficiency included the

following statement:    “If you want to contest this determination

in court before making any payment, you have 90 days from the

date of this letter * * * to file a petition with the United

States Tax Court for a redetermination of the deficiency.”      Also

included on the first page of the notice of deficiency was the

following statement:    “Last Day to File a Petition With the

United States Tax Court:    JAN 05, 2010”.3

     On Tuesday, January 19, 2010, petitioner filed a petition

seeking a redetermination of the deficiencies and penalties

determined by respondent in the October 7, 2009 notice of

deficiency.    The petition, which is dated “12/26/09”, arrived at

the Court by regular mail in an envelope bearing no postmark

date.    Affixed to the envelope was a “stamp” printed by

petitioner on her personal computer using software furnished by




     3
        In addition, in fulfilling petitioner’s request for a
copy of the notice of deficiency, respondent’s Taxpayer Advocate
Service advised petitioner as follows:

          In accordance with your request on NOV 13 2009, a
     copy of the notice of deficiency, mailed to you by
     certified mail on OCT 07 2009, is enclosed.

          You are advised that there is no provision in the
     law for the suspension of the 90-day period provided
     for in the notice for petitioning the United States Tax
     Court. The notice enclosed indicated the 90-day period
     will expire on JAN 05 2010.
                                - 4 -

stamps.com.4   This “stamp” reflects the “stamps.com” logo,

“$1.39” of “US Postage First-Class”, and a 5-digit number that

corresponds to petitioner’s ZIP Code.    The “stamp” also includes

two strings of alphanumeric characters whose meaning is not

disclosed in the record.    As previously mentioned, the “stamp”

bears no postmark and was not postmarked (or canceled) by the

U.S. Postal Service, nor does a Postal Service postmark appear

anywhere on the envelope itself.

     As indicated, respondent filed a Motion To Dismiss For Lack

Of Jurisdiction on February 25, 2010.    Petitioner filed a Notice

Of Objection on March 24, 2010.5   Respondent followed with a

Response on May 25, 2010.    Thereafter, a hearing on respondent’s

motion was held in Fresno, California, on June 14, 2010, with

both parties appearing and presenting argument in support of

their respective positions.6



     4
        According to its Web site, stamps.com is “a revolutionary
software-based service that allows you to calculate and print
official USPS postage right from your PC.” http://stamps.com.
     5
        Petitioner mailed her Notice Of Objection again using a
“stamp” printed with her personal computer and stamps.com
software. Significantly, this “stamp” bears a “stamps.com”
postmark date of “MAR 19 2010”.
     6
        The hearing was held in Fresno, California, consistent
with petitioner’s Request For Place Of Trial. Upon inquiry by
the Court at calendar call, petitioner stated that she requested
Fresno, which is 700 miles from her home in Oregon, rather than
Portland, which is 50 miles from her home, because of parking
issues in Portland.
                               - 5 -

                             Discussion

General Principles

     This 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.   It is sufficient for jurisdictional purposes if

the Commissioner mails the notice of deficiency to the taxpayer

at the taxpayer’s last known address.     Sec. 6212(b); Frieling v.

Commissioner, 81 T.C. 42, 52 (1983).      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

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

if a postmark date is either illegible or missing, see Mason v.

Commissioner, 68 T.C. 354 (1977); Sylvan v. Commissioner, 65 T.C.

548 (1975).
                               - 6 -

     It is clear in the present case that respondent mailed the

notice of deficiency to petitioner on October 7, 2009.   See

Magazine v. Commissioner, 89 T.C. 321, 327 n.8 (1987) (holding

that Postal Service 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 by the

Commissioner of Postal Service Form 3877).   The 90th day after

the date of mailing was Tuesday, January 5, 2010.   However, the

petition was not received and filed by the Court until Tuesday,

January 19, 2010.   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.

     As previously mentioned, the envelope in which the petition

was mailed to the Court did not bear any postmark, and both

parties have proceeded on the basis that extrinsic evidence

regarding the date of mailing is therefore admissible.   Under the

circumstances of this case, we are content to follow the parties’

approach, although we do not purport to establish a general rule

applicable in all cases involving mailpieces bearing “stamps.com”

postage.

Petitioner’s Position

     Petitioner’s position is succinctly set forth in her Notice

Of Objection:
                               - 7 -

     My original petition was filled out by me on December
     25, 2009. It was mailed December 26, 2009.

     At the hearing, petitioner was less certain that she mailed

the petition on December 26, but she was emphatic that she did so

shortly after Christmas.7   Petitioner offered only her testimony

to support her position.

Respondent’s Position

     Respondent relies on Michael J. Fanning, a United States

Postal Service executive whose duties include management of the

mail irradiation program for U.S. Government mail in ZIP Codes

including that of the Tax Court in Washington, D.C.   According to

Mr. Fanning, “First-Class Mail that is mailed from an origin

point in Salem, Oregon 97302 to a destination point in

Washington, D.C. has a three-day service standard”, meaning that

a mailpiece should be delivered on the third calendar day after

it is deposited with the Postal Service.   However, mail that is

addressed to the Tax Court in Washington, D.C., is subjected to

an irradiation process (instituted following the anthrax attacks

in October 2001) that serves to add 3 additional calendar days to

the service standard.




     7
        Petitioner also did not explain why she dated the
petition “12/26/2009” if it was “filled out” on Christmas.
                                - 8 -

Analysis

       Because petitioner is the party invoking the Court’s

jurisdiction, she bears the burden of proving that the petition

was timely filed.    See Maddox v. Commissioner, T.C. Memo. 2009-

241.

       Petitioner relies exclusively on her testimony.   However,

testimony that is not supported by documentary evidence or

otherwise need not be accepted as gospel.     See Tokarski v.

Commissioner, 87 T.C. 74, 77 (1986).      Here we decline to accept

petitioner’s unsupported testimony at face value based on the

totality of the record, which includes (inter alia) the

following:

       (1) Petitioner’s failure to offer any record of the use of

her “stamps.com” account.    In this regard, according to its Web

site,

       Stamps.com automatically keeps a detailed record of the
       postage you print. This makes it easy for you to
       review your postage spending or to print a report for
       your files.

       Of course, the date that postage is printed is not

necessarily the date of mailing.    This obvious truth was

recognized by petitioner at trial:      “Well, * * * I can print it

but I can’t always get to a post office to get it mailed on that

date.”    But the date that postage is printed would at least

constitute some evidence of the date of mailing.
                                - 9 -

     (2) The fact that the “stamp” affixed to the envelope

containing the petition bore no postmark, whereas the “stamp”

affixed to the envelope containing the Notice Of Objection did

bear a “stamps.com” postmark.   This distinction suggests that

postmarking may be at the sender’s option.8

     (3) Giving credence to the “stamps.com” postmark on the

envelope containing petitioner’s Notice of Objection, the elapsed

time between the mailing of that document on March 19, 2010, and

its receipt by the Court on March 24, 2010, is within the service

standard of the Postal Service as described by Mr. Fanning.       This

provides a concrete example supporting his statement regarding

the 6-day service standard applicable to the instant case.

Conclusion

     Because petitioner has failed to prove the date on which her

petition was mailed and further because her petition was not

delivered or deemed delivered to the Court within 90 days of the

date of mailing of the notice of deficiency, we hold that we lack

jurisdiction under sections 6213(a) and 7502; accordingly, we are

obliged to grant respondent’s motion to dismiss.9   Despite our


     8
        We should not be understood to imply that a “stamps.com”
postmark is entitled to the same dignity as a postmark made by
the United States Postal Service.
     9
        Petitioner could have avoided this outcome by going to a
U.S. Post Office and sending her petition by registered or
certified mail. As to registered mail, the date of registration
is treated as the postmark date; as to certified mail, the sender
can obtain a postmarked receipt that is evidence of timely
                                                   (continued...)
                               - 10 -

holding, we observe that petitioner will still be able to have

her day in court by paying the determined amounts, filing a claim

for refund, and then (if the claim is denied or not acted on for

6 months) bringing a suit for refund in the appropriate Federal

court.    See McCormick v. Commissioner, 55 T.C. 138, 142 n.5

(1970).

     To give effect to the foregoing,


                                          An order granting

                                     respondent’s motion and

                                     dismissing this case for

                                     lack of jurisdiction will

                                     be entered.




     9
     (...continued)
mailing and hence timely filing. See sec. 7502(c); sec.
301.7502-1(c)(2), Proced. & Admin. Regs.
