On March 5, 2020, the Tax Court issued a Memorandum Opinion in the case of Thomas v. Commissioner (T.C. Memo. 2020-33). The single issue presented in Thomas v. Commissioner was whether the petitioners timely filed their petition within the time prescribed by IRC § 6213(a) or IRC § 7502, which in turn depended on whether a private postmark bearing a previous date to the USPS postmark was controlling.
Background to Thomas v. Commissioner
In November 2017, the IRS mailed petitioners, by certified mail to their last known address, a statutory notice of deficiency (SNOD) for tax year 2015. The SNOD, dated December 2017, advised petitioners that they had 90 days from the date of the notice to file a petition in the Tax Court for a redetermination of the deficiency. The notice of deficiency also stated that the last day to petition the Tax Court was March 5, 2018.
On March 5, 2018, in anticipation of the mailing of the petition, petitioner-wife stamped an envelope using a private postage meter from her employer’s office. After petitioner-husband finished preparing the petition, he placed it in the stamped envelope. Thereafter, on either March 5th or 6th, petitioner-husband took the petition to a USPS office, where he deposited the petition into a USPS mailbox.
The Court received the petition 98 days after the date of the notice of deficiency. The envelope, however, bears two postmarks. The first postmark is a private postage mark dated March 5th. The second postmark was made by the USPS office and is dated March 6th.
Timeliness is Next to Godliness (for Tax Court Jurisdiction)
The Tax Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent expressly authorized by Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985); Breman v. Commissioner, 66 T.C. 61, 66 (1976). Jurisdiction must be proven affirmatively by the petitioner. David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff’d, 22 F. App’x 837 (9th Cir. 2001); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler’s Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). For jurisdiction to be vested in the Tax Court for redetermination of a deficiency, a valid notice of deficiency must be issued to the taxpayer, and the taxpayer must timely file its petition. See Tax Court Rules 13(a) and 13(c); Rochelle v. Commissioner, 116 T.C. 356, 358 (2001), aff’d, 293 F.3d 740 (5th Cir. 2002).
For petitioners the 90-day period to file their petition under IRC § 6213(a) expired on March 5th (not a Saturday, Sunday, or legal holiday in the District of Columbia). See IRC § 6213(a). A timely mailed petition is a timely filed petition. IRC § 7502(a). A document is timely mailed if the postmark date falls on or before the due date, with postage prepaid, and with the proper address of the recipient. IRC § 7502(a)(2).
In the case of postmarks not made by the USPS, Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(1) imposes two requirements that must be met for the rule to apply. First, the postmark must show a legible date on or before the last day of the prescribed period, Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(1)(i), and second, the item must have been received within the same amount of time as it would have had it been postmarked at the same point of origin by the USPS on the last day of the prescribed period. Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(1)(ii). If the envelope bears a USPS postmark and a non-USPS postmark, the postmark that was not made by the U.S. Postal Service is disregarded, and the date of the USPS postmark controls. Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(3); see Malekzad v. Commissioner, 76 T.C. 963, 966-967 (1981).
Extrinsic evidence may be admissible where 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). In the instant case the USPS postmark is neither illegible nor missing, and, therefore, no extrinsic evidence may be considered. Seely v. Commissioner, T.C. Memo. 2020-6.
Bright Line Rules
Where the envelope containing the petition bears a legible USPS postmark, the postmark must bear a date on or before the last date prescribed for filing for it to be considered timely filed. See Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(1). If the envelope has a postmark made by the U.S. Postal Service in addition to a non-USPS postmark, the non-USPS postmark is disregarded. See Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(3).Add to favorites