Pearson v. Comm'r

• Decision Date: 29 November 2017
• Docket Number: 149 T.C. No. 20,Docket No. 11084-15.
• Parties: LINCOLN C. PEARSON AND VICTORIA K. PEARSON, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
• Court: United States Tax Court

LINCOLN C. PEARSON AND VICTORIA K. PEARSON, Petitioners
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

149 T.C. No. 20
Docket No. 11084-15.

UNITED STATES TAX COURT

November 29, 2017

Under I.R.C. sec. 6213(a), the last day for Ps to petition the Court was Apr. 22, 2015. The Court received their petition via certified mail on Apr. 29, 2015. The envelope containing the petition was properly addressed and had been deposited at a U.S. post office with sufficient postage prepaid through Stamps.com, a USPS-approved commercial vendor. Affixed to the envelope containing the petition was a Stamps.com postage label bearing the date Apr. 21, 2015, the date on which the postage was paid and the label printed. The envelope did not bear a USPS postmark. The USPS entered the envelope into its tracking system for certified mail on Apr. 23, 2015.

1. Held: The date shown on the Stamps.com postage label was a "postmark[] not made by the United States Postal Service" within the meaning of I.R.C. sec. 7502(b).

2. Held, further, data retrieved from the USPS tracking system for certified mail is not "a postmark made by the U.S. Postal Service"

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within the meaning of sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs.

3. Held, further, Ps' petition was timely mailed under subdiv. (iii)(B)(1) or (2) of sec. 301.7502-1(c)(1), Proced. & Admin. Regs., and was timely filed under I.R.C. sec. 7502(b).

4. Held, further, the Court has jurisdiction over Ps' case. Tilden v. Commissioner, 846 F.3d 882 (7th Cir. 2017), rev'g and remanding T.C. Memo. 2015-188, followed.

Paul W. Jones, for petitioners.

Skyler K. Bradbury, David W. Sorensen, and Robert A. Varra, for respondent.

OPINION

LAUBER, Judge: This case presents a jurisdictional question identical to that presented by Tilden v. Commissioner, T.C. Memo. 2015-188, rev'd and remanded, 846 F.3d 882 (7th Cir. 2017). On May 29, 2015, the Internal Revenue Service (IRS or respondent) filed a motion to dismiss this case for lack of jurisdiction. We held that motion in abeyance pending resolution of the taxpayer's appeal of our decision in Tilden, in which we had granted a similar motion by the Commissioner. After the U.S. Court of Appeals for the Seventh Circuit handed down

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its opinion in Tilden, and pursuant to its mandate, we vacated our earlier decision in that case on March 13, 2017, and denied the Commissioner's motion to dismiss.

The instant case would be appealable, absent stipulation to the contrary, to the U.S. Court of Appeals for the Eighth Circuit. See sec. 7482(b)(1)(A). Respondent, however, no longer objects to our assumption of jurisdiction. On March 15, 2017, the parties filed a joint status report stating: "Since the facts of the present case substantially match the facts at issue in Tilden, the parties anticipate that the Court will deny respondent's motion to dismiss for lack of jurisdiction."

The parties have correctly anticipated what we will do. We agree in all respects with the Seventh Circuit's analysis and will accordingly deny respondent's motion to dismiss.

Background

The following facts are derived from the parties' pleadings, motion papers, and the exhibits and declaration attached thereto. These facts are stated solely for the purpose of disposing of the motion and not as findings of fact in this case. See Rule 1(b); Fed. R. Civ. P. 52(a); Cook v. Commissioner, 115 T.C. 15, 16 (2000), aff'd, 269 F.3d 854 (7th Cir. 2001).

On January 22, 2015, the IRS sent petitioners, by certified mail to their last known address, a notice of deficiency for tax years 2010, 2011, and 2012. Peti-

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tioners resided in Arkansas at that time and at the time of filing their petition. The notice determined for the years at issue deficiencies aggregating in excess of $80,000 and accuracy-related penalties under section 6662(a) computed as 20% of those amounts.¹

Section 6213(a) provides, in the case of a notice addressed to a taxpayer within the United States, that the taxpayer may petition this Court "[w]ithin 90 days * * * after the notice of deficiency * * * is mailed." For petitioners, this 90-day period expired on April 22, 2015. That day was not a Saturday, Sunday, or legal holiday in the District of Columbia. See sec. 6213(a).

The Court received the petition on Wednesday, April 29, 2015, and filed it that same day. The petition was sent to the Court via certified mail delivery provided by the U.S. Postal Service (USPS). The envelope in which the petition was mailed bore a 20-digit USPS certified mail tracking number. The envelope did not have a USPS postmark, but it did have a "postmark" from Stamps.com, an online postage services provider.² Stamps.com enables ordinary consumers to "enjoy the

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convenience of a traditional postage meter." Tilden v. Commissioner, 846 F.3d at 885.

Petitioners have supplied a declaration under penalty of perjury from Katelynn Marshall, an administrative assistant at the law firm representing them. She avers that on April 21, 2015, she created through Stamps.com a postage label with official U.S. postage of $7.82 (the cost of ordinary postage plus the supplement for certified delivery). That label shows the Court's correct address, the certified mail tracking number referenced above, and the date "04/21/2015," reflecting the date on which the label was created.

Ms. Marshall further avers that she affixed this label to an envelope containing the petition and sealed that envelope. According to her declaration, she personally carried the sealed envelope later that day to the U.S. Post Office at 2350 Arbor Lane, Salt Lake City, Utah 84117, and deposited it in the U.S. mail.

Ms. Marshall attached to her declaration a USPS "certified mail receipt" bearing the tracking number referenced above. Written by hand on that receipt are

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petitioners' names, the words "United States Tax Court" (in the block captioned "Send To"), and the date "4/21/15" (in the block captioned "Postmark Here"). Ms. Marshall avers that she made these notations when she mailed the envelope.

The USPS maintains an online tracking system that enables customers to track the progress of certified mail. The earliest entry in that system for the item bearing the certified mail number referenced above shows its arrival at a Salt Lake City USPS facility, with ZIP Code 84199, at 5:39 p.m. on April 23, 2015. (That is a different USPS facility from the one at which Ms. Marshall mailed the petition; the latter has ZIP Code 84117.) Subsequent entries in the USPS tracking system show that the item left the USPS facility with ZIP Code 84199 at 6:57 p.m. on April 23, 2015, and was delivered to this Court at 11:02 a.m. on April 29, 2015. As noted previously, the Court filed the petition an hour later that day.

The Court requested supplemental briefing from the parties on respondent's motion to dismiss. In a filing dated August 21, 2015, respondent represented that he had contacted a USPS specialist regarding the timing questions presented by this case. That specialist advised respondent's counsel of her determination that it was "highly unlikely the mail piece entered P&DC [the Salt Lake Processing and Distribution Center] on 4/21 and sat for two days before processing." However, on the basis of USPS "logistical data and the time stamp of processing for this cer-

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tified mail piece," the USPS specialist advised respondent's counsel that "it is the belief of our Salt Lake P&DC Operations Support office that the mail piece in question was most likely deposited and collected between 4:30 pm and 6:10 pm on 4/22." Respondent attached to his supplemental response the complete email exchange between the USPS specialist and respondent's counsel.

As noted earlier, the last day for filing the petition in this case was April 22, 2015. On the basis of the information set forth above, respondent concluded that the petition was "most likely deposited * * * with the USPS on April 22, 2015, which is within the time prescribed by sections 6213(a) or 7502." Respondent accordingly joined petitioner in urging "that the Court deny respondent's motion to dismiss for lack of jurisdiction."

Discussion

I. The Court's Deficiency Jurisdiction

The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See sec. 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016); Moosally v. Commissioner, 142 T.C. 183, 195-196 (2014). In determining whether we have jurisdiction over a given matter, this Court and the Courts of Appeals have given our jurisdictional provisions a broad, practical construction rather than a narrow, technical one. Bongam

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v. Commissioner, 146 T.C. 52, 55 (2016); Lewy v. Commissioner, 68 T.C. 779, 781 (1977). When a statutory provision is capable of two interpretations, "we are inclined to adopt a construction which will permit us to retain jurisdiction without doing violence to the statutory language." Traxler v. Commissioner, 61 T.C. 97, 100 (1973).

The Court's jurisdiction in a deficiency case 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). The Code authorizes the Commissioner, after determining a deficiency, to send a notice of deficiency by certified or registered mail to the taxpayer at his last known address. Sec. 6212(a) and (b). The taxpayer then has 90 days (150 days if the notice was mailed to a foreign address) to file a petition with this Court for redetermination of the deficiency. Sec. 6213(a). This 90-day filing deadline is jurisdictional. See Andrews v. Commissioner, 563 F.2d 365, 366 (8th Cir. 1977) ("The law is clear that the Tax Court does not have jurisdiction over an untimely petition."); Tilden, 846 F.3d at 886-887 (collecting cases); Guralnik, 146 T.C. at 238 ("In cases too numerous to mention, dating back to 1924, we have held that the...