UNITED STATES TAX COURT

T.C. Memo. 2005-272

UNITED STATES TAX COURT

JOHN L. BOBBS, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6465-04.

Filed November 28, 2005.

John L. Bobbs, pro se.

Igor S. Drabkin, for respondent.

MEMORANDUM OPINION

MARVEL, Judge:

This matter is before the Court on

respondent’s motion to dismiss for lack of jurisdiction on the

ground that the petition was not filed within the time prescribed

by sections 6213(a)1 and 7502.

1

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect at the time the petition was

(continued...)

- 2 Background

Petitioner resided in Inglewood, California, when the

petition in this case was filed.

Petitioner claimed a charitable contribution deduction of

$14,800 on his 2001 income tax return.2

Following an

examination, respondent issued an examination report in which he

proposed to disallow $14,345 of petitioner’s reported

contributions.

On November 4, 2003, respondent issued a revised

examination report in which he proposed to disallow only $10,545

of petitioner’s reported contributions.3

The letter accompanying

1

(...continued)

filed, and all Rule references are to the Tax Court Rules of

Practice and Procedure.

2

Petitioner claimed deductions for the following charitable

contributions:

Donee organization

Amount of contribution

Administrator of Peace and

Brotherhood Ministries (APB

Ministries)

True Vine Baptist Church

Marantha Community Church

Miscellaneous

Total

$10,500

3,800

455

45

14,800

3

Respondent originally only allowed a deduction for the $455

paid to Marantha Community Church. Respondent received an

itemized list of contributions made to True Vine Baptist Church,

however, and he allowed the $3,800 deduction in the revised

examination report. Respondent disallowed the $10,500

contribution to APB Ministries because APB Ministries did not

respond to a request by respondent for additional documentation

regarding petitioner’s alleged contribution. Respondent also

disallowed the remaining $45 miscellaneous contribution(s) not

(continued...)

- 3 the revised examination report informed petitioner that he had 15

days from November 4, 2003, the date of the letter, to request a

conference with the Appeals Office.

The letter also informed

petitioner that respondent would issue a notice of deficiency if

petitioner did not request a conference within the 15-day period.

Petitioner did not submit a timely request for an Appeals

conference.

Consequently, on January 6, 2004, respondent issued

a notice of deficiency (notice) to petitioner for 2001.

The

notice was addressed to 814 North Market Street, Apartment 5,

Inglewood, CA 90302-5931.4

On February 20, 2004, petitioner mailed Form 12203, Request

for Appeals Review (Request), to respondent.

On a date that does

not appear in the record, respondent forwarded petitioner’s

Request to this Court.5

By letter dated April 5, 2004,

3

(...continued)

specifically identified in the record.

4

Petitioner disputes receipt of the notice, but he admits

that he received other correspondence from respondent at the

North Market Street address. Petitioner’s Request and his

amended petition both show the North Market Street address as his

current address.

5

Respondent’s postage meter stamp on the envelope in which

the Request was forwarded reads Apr. 2, 2004. However,

respondent contends that the Request was mailed “On or about

April 8, 2004”. The U.S. Postal Service stamp is illegible. If

the Request took no more than the ordinary delivery time of 3

days for a mailing from California to Washington, D.C. (see

discussion, infra pp. 5-8), the latest date on which the Request

could have been mailed to arrive at the Court on Apr. 12, 2004,

was Apr. 9, 2004.

- 4 respondent informed petitioner that his Request was untimely and

that he would have to petition the Tax Court to dispute his tax

liability.

On April 12, 2004, we filed petitioner’s Request,

which was forwarded to the Court by respondent, as an imperfect

petition.

We subsequently ordered petitioner to file an amended

petition with the required filing fee by June 1, 2004.

On May

28, 2004, we received and filed petitioner’s amended petition.

On January 24, 2005, we received and filed respondent’s

motion to dismiss for lack of jurisdiction, which alleged that

petitioner’s petition was not filed within the 90-day period

prescribed in sections 6213(a) and 7502.

In support of the

motion, respondent attached a postmarked copy of the certified

mailing list bearing petitioner’s name and address, the date on

which the notice of deficiency was mailed to petitioner, and the

article tracking number of the notice.

On February 18, 2005, we filed petitioner’s response in

opposition to respondent’s motion.

Petitioner contends that he

did not receive the notice of deficiency dated January 6, 2004.

Petitioner also argues that he timely mailed his Request to the

Internal Revenue Service.

Discussion

Our jurisdiction to redetermine a deficiency depends on the

issuance of a valid notice of deficiency and on a timely filed

- 5 petition.

Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27

(1989).

Notice of Deficiency

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”.

(1983).

Sec. 6212(b); Frieling v. Commissioner, 81 T.C. 42, 52

If a notice of deficiency is mailed to the taxpayer at

the taxpayer’s last known address, actual receipt of the notice

is immaterial.

King v. Commissioner, 857 F.2d 676, 679 (9th Cir.

1988), affg. 88 T.C. 1042 (1987); DeWelles v. United States, 378

F.2d 37, 39 (9th Cir. 1967).

The taxpayer, in turn, has 90 days

(or 150 days if the notice is addressed to a person outside of

the United States) from the date that the notice of deficiency is

mailed to file a petition in this Court for a redetermination of

the deficiency.

Sec. 6213(a).

Under section 7502, a timely

mailed petition will be treated as though it were timely filed.

Respondent bears the burden of proving by competent and

persuasive evidence that the notice of deficiency was properly

mailed.

Coleman v. Commissioner, 94 T.C. 82, 90 (1990); August

v. Commissioner, 54 T.C. 1535, 1536-1537 (1970).

The act of

mailing may be proven by documentary evidence of mailing or by

- 6 evidence of respondent’s mailing practices corroborated by direct

testimony.

Coleman v. Commissioner, supra at 90.

A U.S. Postal

Service Form 3877, Acceptance of Registered, Insured, C.O.D. and

Certified Mail, reflecting Postal Service receipt represents

direct documentary evidence of the date and fact of mailing.

Id.; Magazine v. Commissioner, 89 T.C. 321, 324, 327 (1987).

Where the existence of the notice of deficiency is not in

dispute, a properly completed Form 3877 by itself is sufficient,

absent evidence to the contrary, to establish that the notice was

properly mailed to a taxpayer.

United States v. Zolla, 724 F.2d

808, 810 (9th Cir. 1984); Coleman v. Commissioner, supra at 91.

In this case, respondent produced a copy of the certified

mailing list for January 6, 2004, which bore a date stamp from

the Los Angeles Post Office of January 6, 2004.

The list shows

petitioner’s name, North Market Street address, taxpayer

identification number, and the article tracking number of the

notice of deficiency.

The certified mailing list submitted by

respondent is similar to, and appears to perform the same

function as, Form 3877.

1990-378.

See Stein v. Commissioner, T.C. Memo.

However, in this case the certified mailing list is

incomplete because it does not contain any indication of the

number of items received by the Los Angeles Post Office and is

- 7 not signed or initialed by a U.S. Postal Service employee.6

Thus, the certified mailing list, in and of itself, is

insufficient to provide respondent with the presumption of

mailing.

Massie v. Commissioner, T.C. Memo. 1995-173, affd.

without published opinion 82 F.3d 423 (9th Cir. 1996); Wheat v.

Commissioner, T.C. Memo. 1992-268.

Respondent’s failure to

obtain the U.S. Postal Service clerk’s initials on the certified

mailing list and to have the clerk identify on the certified

mailing list how many pieces of mail the U.S. Postal Service

received is an “inexactitude which is significant enough to

render the presumption inapplicable.”

Wheat v. Commissioner,

supra; see also Coleman v. Commissioner, supra at 92.

Respondent

may still prevail, however, if the evidence of mailing is

otherwise sufficient.

Wheat v. Commissioner, supra.

Although an incomplete certified mailing list that does not

contain all of the information required by Form 3877 is

insufficient to create a presumption of proper mailing, it

nevertheless has some probative value.

Commissioner, supra.

See Massie v.

The certified mailing list in this case

contains a U.S. Postal Service date stamp of January 6, 2004.

The address recorded on the certified mailing list is the same

address that petitioner has used on all of his correspondence

6

The total number of pieces listed by sender shows seven,

but the spaces for the number of pieces received by the post

office and the postmaster’s name are blank.

- 8 with respondent.

Petitioner has not argued that the Market

Street address was not his last known address,7 nor has he argued

that respondent failed to follow his established mailing

procedures.

The preponderance of the evidence supports a finding

that respondent mailed the notice of deficiency to petitioner at

his last known address on January 6, 2004, and we so find.

Timely Filed Petition

Petitioner also argues that his petition was filed timely

because he mailed his Request to respondent “within the 90 Day

Unit period for appeal”,8 and we accepted and filed the Request

7

A taxpayer’s last known address is either the address

listed on his most recently filed Federal income tax return or

another address, if taxpayer notifies Commissioner of a change of

address. Sec. 301.6212-2(a), Proced. & Admin. Regs.; see also

Leask v. Commissioner, T.C. Memo. 1989-347. Petitioner’s most

recently filed tax return as of Jan. 6, 2004, is not in the

record, and there is no evidence that petitioner communicated an

alternate address to respondent.

8

Petitioner argues, alternatively, that his Request was

mailed timely to respondent and should have been administratively

reviewed by respondent. Respondent’s letter of Nov. 4, 2003,

stated that petitioner had 15 days to request an Appeals

conference with an Appeals officer. Petitioner contends that he

did not receive the Nov. 4, 2003, letter until December. Even if

we assume that petitioner received the letter on Dec. 31, 2003,

his Request mailed on Feb. 20, 2004, was sent well outside the

allotted 15-day period for appeal. Therefore, petitioner did not

timely mail his Request to respondent.

- 9 as an imperfect petition9 on April 12, 2004.10

A petition is timely filed if it is received by the Court

within 90 days after the notice is mailed.

Sec. 6213(a).

If the

last day of the 90-day period falls on a Saturday, Sunday, or a

legal holiday in the District of Columbia, the last day of the

90-day period is the first business day thereafter.

301.6213-1(a)(1), Proced. & Admin. Regs.

was mailed on January 6, 2004.

Id.; sec.

The notice in this case

The 90-day period for timely

filing a petition with the Court expired on April 5, 2004, which

date was not a Saturday, Sunday, or legal holiday in the District

of Columbia.

If the petition is properly addressed, with postage prepaid,

and is postmarked within the applicable 90-day period in

accordance with section 7502(a), the petition will be considered

timely even if it is not received by the Court until after the

90-day period.

Sec. 7502(a).

In this case, petitioner’s mailing

of the Request to respondent was not properly addressed.

Moreover, even if we assume that section 7502 may be applied to

respondent’s remailing of the Request to the Court, the criteria

of section 7502 were not met by the remailing because we cannot

9

This Court has been liberal in filing documents submitted

by taxpayers as petitions. See Eiges v. Commissioner, 101 T.C.

61, 68 (1993); Castaldo v. Commissioner, 63 T.C. 285, 287 (1974).

10

We received petitioner’s Request 97 days after respondent

mailed the notice of deficiency.

- 10 ascertain whether the mailing was postmarked within the

applicable 90-day period.

If the postmark is made by the U.S. Postal Service and is

illegible, the person who is required to file the document bears

the burden of proving the date the postmark was made.

301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.

Sec.

If the postmark

is made other than by the U.S. Postal Service and the document is

delivered to the Court untimely, then the postmark must bear a

legible date on or before the last day of the filing period, and

the document must have been received at or before the time when

the same class of mail would ordinarily be received if postmarked

from the same point of origin on the last day of the period

prescribed for filing.

& Admin. Regs.

Sec. 301.7502-1(c)(1)(iii)(B)(1), Proced.

If a mailing bears both a U.S. Postal Service

postmark and a postmark made other than by the U.S. Postal

Service, the postmark that is not a U.S. Postal Service postmark

is disregarded in applying the regulations regarding timely

mailing and filing.

Sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. &

Admin. Regs.11

11

Sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs.,

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

(continued...)

- 11 In this case, the envelope in which respondent mailed

petitioner’s Request to the Court bears both a postage meter

postmark and a U.S. Postal Service postmark.

Consequently, we

may assume that we are required by sec. 301.75021(c)(1)(iii)(B)(3), Proced. & Admin. Regs., to apply the rule of

sec. 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.12

Section 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.,

provides, in pertinent part, as follows:

(iii) Postmark.--(A) U.S. Postal Service

postmark.--If the postmark on the envelope is made by

the U.S. Postal Service, the postmark must 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. 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.

Accordingly, 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 or making the payment. * * * If the

postmark on the envelope is made by the U.S. Postal

11

(...continued)

this paragraph (c)(1)(iii)(B) will be determined solely

by applying the rule of paragraph (c)(1)(iii)(A) of

this section.

12

Even if we proceeded on the alternative assumption that a

private postmark, when accompanied by an illegible U.S. postmark,

is not disregarded, we would reach the same result, for

petitioner has offered no proof of the date on which the Internal

Revenue Service actually deposited the Request in the mail, much

less proof of the cause of a delay in transmission of the mail if

there were a timely deposit. See sec. 301.7502-1(c)(1)(iii)

(B)(2), Proced. & Admin. Regs.

- 12 Service but is not legible, the person who is required

to file the document or make the payment has the burden

of proving the date that the postmark was made.

[Emphasis supplied.]

As the person who is required to file a timely petition,

petitioner had the burden of proving the date on which the U.S.

Postal Service postmark was made.

Petitioner failed to do so.

Petitioner simply argues that the forwarding of the Request by

respondent to the Court caused the filing to be untimely and that

his case should not be dismissed because of respondent’s failure

to act promptly.

It is unfortunate that respondent did not exercise greater

care and diligence to insure that petitioner’s Request was

delivered timely to this Court.

However, it is petitioner’s

responsibility to file his petition properly; respondent has no

burden to forward a misaddressed petition to the Court.

Commissioner, 58 T.C. 256, 259 (1972).

Axe v.

We cannot expand our

jurisdiction beyond the 90-day prescribed period, “whatever the

equities of a particular case may be and regardless of the cause

for * * * [the petition] not being filed within the required

period.”

Id.

Because petitioner has not proven the date on which the

illegible U.S. Postal Service postmark was made and because his

petition was not delivered or deemed delivered to the Court

within 90 days of the date of the notice of deficiency, we hold

that we do not have jurisdiction under sections 6213(a) and 7502.

- 13 Consequently, we shall grant respondent’s motion to dismiss for

lack of jurisdiction.

We note, however, that despite our holding

here, petitioner will still be able to have his day in court by

paying the deficiency and bringing a suit for refund in the

appropriate Federal court.

An appropriate order of dismissal

for lack of jurisdiction will be

entered.