United States Tax Court

United States Tax Court

T.C. Memo. 2025-49

JORDAN JOHN O’NEILL,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

__________

Docket No. 28075-22.

Filed May 20, 2025.

__________

Jordan John O’Neill, pro se.

Gregory Michael Hahn, Michelle M. Sisti, Logan M. Westerman, and

Heather L. Wolfe, for respondent.

MEMORANDUM OPINION

VASQUEZ, Judge: Pending before the Court are the parties’

Cross-Motions to Dismiss for Lack of Jurisdiction. Petitioner’s Motion

to Dismiss, filed May 27, 2024, seeks dismissal on the grounds that the

Notices of Deficiency issued to petitioner for tax years 2016 and 2017

are invalid because they were improperly mailed and improperly issued

by an official without delegated authority. Respondent filed his

Objection on July 12, 2024. Respondent’s Motion to Dismiss, filed

September 27, 2024, seeks dismissal on the grounds that the Petition

was not filed within the time prescribed by section 6213(a) or 7502. 1

Petitioner filed his Objection on October 4, 2024.

1 Unless otherwise indicated, statutory references are to the Internal Revenue

Code, Title 26 U.S.C., in effect at all relevant times.

Served 05/20/25

2

[*2] For the reasons set forth below, we will deny petitioner’s Motion

and grant respondent’s Motion.

Background

On January 30, 2022, petitioner filed a Petition commencing this

case, seeking judicial review of (1) a January 4, 2022, Notice of

Determination Concerning Collection Actions under IRS Sections 6320

or 6330 of the Internal Revenue Code and (2) two Notices of Deficiency,

issued on March 4, 2019, for taxable year 2016 (2016 Notice) and

August 5, 2019, for taxable year 2017 (2017 Notice). Petitioner resided

in California when he petitioned this Court.

Severance

On May 30, 2023, after reviewing the record, the Court severed

the proceeding into two cases: (1) Docket No. 894-22L, to address

petitioner’s cause of action with respect to the Notice of Determination,

and (2) Docket No. 28075-22, to address petitioner’s cause of action with

respect to the Notices of Deficiency.

Respondent’s Prior Motion to Dismiss

On February 26, 2023, respondent filed a Motion to Dismiss for

Lack of Jurisdiction, contending that petitioner was time barred from

challenging the Notices of Deficiency as his Petition had been filed more

than 90 days after the issuance of the 2016 Notice on March 4, 2019, and

the 2017 Notice on August 5, 2019. On March 19, 2023, petitioner filed

his Objection, arguing that (1) respondent had failed to provide proof of

timely mailing of the Notices and (2) the Notices were invalid as they

were not issued by an official with delegated authority to do so.

In support of his Motion respondent submitted both Notices along

with two U.S. Postal Service (USPS) Forms 3877, Firm Mailing Book for

Accountable Mail. USPS Form 3877 is a form used by bulk senders of

certified mail, such as the IRS, to document all items mailed on a given

day. It lists recipients’ names, addresses, and corresponding certified

mail tracking numbers. Each USPS Form 3877 proffered by respondent

included a USPS date stamp and listed a certified mail tracking number,

along with petitioner’s name and address that matched the information

on both Notices. However, both USPS Forms 3877 lacked signatures

from the USPS employees who received the items to mail and

information about the total number of pieces that respondent was

sending by certified mail on that specific day.

3

[*3] On June 14, 2023, this Court denied in part respondent’s Motion

to Dismiss, holding that the presumption of official regularity did not

apply because of the defects in the submitted USPS Forms 3877. While

respondent’s Motion to Dismiss was denied in part, this Court was clear

that this “[did] not mean that respondent may not eventually prevail. . . .

Our ultimate decision on this issue will depend on the credibility and

persuasiveness of what petitioner and respondent offer into evidence at

trial.”

Given that the defective USPS Forms 3877 provided a sufficient

basis to deny respondent’s Motion in part, the Court declined to address

petitioner’s second argument that the Notices were invalid because they

were improperly issued by an official without delegated authority.

Subsequent Motions to Dismiss and Evidentiary Hearing

On May 27, 2024, petitioner filed a Motion to Dismiss for Lack of

Jurisdiction, contending that the Notices were invalid because of

improper mailing and issuance by an improper authority. By Order

dated September 6, 2024, this Court calendared an evidentiary hearing

at the September 23, 2024, Seattle, Washington, trial session, quoting

our June 14, 2023, Order: “A trial will be necessary concerning

respondent’s alleged mailing of the Notices to petitioner.”

On September 24, 2024, this Court held an evidentiary hearing,

during which the parties’ Stipulation of Facts and accompanying

Exhibits were entered into evidence. Respondent explained that the

Exhibits were submitted to “bolster Respondent’s defective certified

mailing list that was originally included with the Motion to Dismiss for

lack of jurisdiction.”

In addition to the two Notices and the

corresponding USPS Forms 3877, respondent introduced official USPS

tracking histories for each Notice generated based on their respective

certified mail tracking numbers, confirming the mailing date of the

Notices, the unsuccessful attempts at delivery, and their eventual

return to respondent due to being unclaimed. Additionally, respondent

submitted records from their internal Automated Underreporter (AUR)

system, including verified screenshots from the “Case History” and

“Statutory Notice History” windows which corroborate the issuance date

of the Notices, the mailing address used, the certified mail tracking

numbers, and the final delivery status. Finally, respondent provided

certified transcripts from the Integrated Data Retrieval System,

confirming that petitioner’s last known address remained unchanged

from 2010 to 2022.

4

[*4] After submitting the Exhibits into evidence, respondent asked the

Court for leave to renew the Motion to Dismiss “in light of the additional

evidence proffered today.” The Court granted respondent’s request and

asked respondent to submit the Motion in writing.

Petitioner did not submit any exhibits or challenge any of

respondent’s descriptions or characterizations of his evidence. When

given the opportunity to address the Court, petitioner chose to speak

only about the lack of delegated authority and the resulting invalidity of

the Notices. When the Court reminded petitioner that the evidentiary

hearing was strictly focused on the question of proper mailing of the

Notices, petitioner said he had nothing further to add. When respondent

asked for leave to file a renewed Motion to Dismiss, petitioner said:

“I would object to her motion in light of the delegation order argument

for 2016 and 2017.” After respondent filed the Motion to Dismiss for

Lack of Jurisdiction on September 27, 2024, petitioner filed a Notice of

Objection on October 4, 2024.

Discussion

This 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 shown affirmatively, and [the

taxpayer], as the party invoking our jurisdiction . . . , bears the burden

of proving that we have jurisdiction over [the] case.” David Dung Le,

M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff’d, 22 F. App’x

837 (9th Cir. 2001); see Fehrs v. Commissioner, 65 T.C. 346, 348 (1975);

Wheeler’s Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180

(1960). There are two prerequisites to this Court’s jurisdiction to

redetermine a deficiency: (1) the issuance of a valid Notice of Deficiency

by the Commissioner and (2) the timely filing of a petition with the Court

by the taxpayer. Organic Cannabis Found., LLC v. Commissioner, 962

F.3d 1082, 1092 (9th Cir. 2020); Hallmark Rsch. Collective v.

Commissioner, 159 T.C. 126, 130 & n.4 (2022). Petitioner is challenging

the validity of the Notices and respondent is challenging the timeliness

of the Petition’s filing.

It is not disputed that petitioner filed his Petition more than

90 days after each of the Notices was issued. Accordingly, we must

dismiss this case as untimely under section 6213(c), unless we agree

with petitioner that the Notices were invalid because either they were

improperly mailed or improperly issued by an official lacking delegated

5

[*5] authority. If we agree with petitioner, we must also dismiss the

case on the basis that the Notices were invalid. See Monge v.

Commissioner, 93 T.C. 22, 27 (1989). Regardless of whether petitioner

or respondent prevails, it is clear that we lack jurisdiction to consider

this case on its merits. See McKay v. Commissioner, 89 T.C. 1063, 1067

(1987), aff’d, 886 F.2d 1237 (9th Cir. 1989). However, we have

jurisdiction to determine the reason why we do not have jurisdiction. See

Shelton v. Commissioner, 63 T.C. 193, 194–95 (1974).

We look at each of these arguments in turn, beginning with

petitioner’s challenge to the validity of the Notices.

I.

Proper Mailing of the Notices of Deficiency

In deficiency cases we have said that the Commissioner bears the

burden of proving by competent and persuasive evidence that a Notice

of Deficiency was mailed to the taxpayer. Coleman v. Commissioner, 94

T.C. 82, 90 (1990); August v. Commissioner, 54 T.C. 1535, 1536–37

(1970). The act of mailing the Notice of Deficiency is generally proven

by documentary evidence of mailing or by evidence of the

Commissioner’s mailing practices corroborated by direct testimony.

Coleman, 94 T.C. at 90; Magazine v. Commissioner, 89 T.C. 321, 326

(1987). Exact compliance with USPS Form 3877 mailing procedures

raises a presumption of official regularity in favor of the Commissioner.

Hoyle v. Commissioner, 131 T.C. 197, 203 (2008), supplemented by 136

T.C. 463 (2011); Coleman, 94 T.C. at 91. Conversely, if USPS Form 3877

has any defects, it will not give rise to a presumption of regularity. See

Knudsen v. Commissioner, T.C. Memo. 2015-69, at *14.

Petitioner contends that respondent cannot meet the burden of

proving proper mailing because of the incomplete USPS Forms 3877. In

addition to not listing the total number of items or including a signature,

petitioner points out that the USPS Forms 3877 fail to identify the listed

items as Notices of Deficiency and fail to list the associated taxable

years. We agree with petitioner that these are defects and that as a

result, respondent is not entitled to a presumption of official regularity.

See Meyer v. Commissioner, T.C. Memo. 2013-268, at *20–28. However,

respondent may still prevail if the evidence of mailing is otherwise

sufficient. See Coleman, 94 T.C. at 91; see also Wheat v. Commissioner,

T.C. Memo. 1992-268, 1992 WL 95632, at *4.

While not sufficient to create a presumption of official regularity,

even a USPS Form 3877 with defects is probative and may be combined

6

[*6] with additional evidence to meet the Commissioner’s burden. See

O’Rourke v. United States, 587 F.3d 537, 540–42 (2d Cir. 2009);

Coleman, 94 T.C. at 91–92; Portwine v. Commissioner, T.C. Memo. 201529, at *11, aff’d, 668 F. App’x 838 (10th Cir. 2016); Massie v.

Commissioner, T.C. Memo. 1995-173, 1995 WL 225549, at *3, aff’d, 82

F.3d 423 (9th Cir. 1996) (unpublished table decision). In this case both

USPS Forms 3877 bear a USPS date stamp reflecting the same date of

issuance listed on the respective Notices, March 4, 2019, for the 2016

Notice and August 5, 2019, for the 2017 Notice. Also, each USPS Form

3877 lists petitioner’s name, his address, and the certified mail article

number exactly as they are listed on the corresponding Notices.

Importantly, respondent is no longer relying solely on the USPS

Forms 3877 to verify proper mailing of the Notices as he did in his prior

Motion to Dismiss. Respondent has submitted multiple Exhibits into

evidence, including certified USPS tracking records as well as internal

records which confirm that the Notices were mailed on March 4, 2019,

and August 5, 2019, to petitioner’s last known address and that delivery

was attempted but that both Notices were unclaimed and ultimately

returned to respondent. In similar cases this Court has found that a

record showing that a Notice was returned to the Commissioner as

unclaimed or refused is strong evidence that the Notice was mailed.

“Logic dictates that an item cannot be returned as unclaimed unless it

was first mailed.” Alamo v. Commissioner, T.C. Memo. 2017-215,

at *25–26, aff’d, 751 F. App’x 583 (5th Cir. 2019). While there is no

evidence to establish any deliberate refusal of delivery of the Notices of

Deficiency on petitioner’s part, he cannot use the fact that the Notices

went unclaimed to later assert that the Notices were never mailed to

him. See Massie v. Commissioner, 1995 WL 225549, at *3; cf. Sego v.

Commissioner, 114 T.C. 604, 611 (2000) (“[T]axpayers cannot defeat

actual notice by deliberately refusing delivery of statutory notices of

deficiency.”).

Finally, respondent submitted internal transcripts confirming

that petitioner’s last known address remained the same from 2010 until

2022, the period during which the Notices were mailed. Petitioner has

not argued that this address is incorrect. In fact, it is the same address

that petitioner used on his Petition filed with this Court.

As we previously stated, “[o]ur ultimate decision on this issue will

depend on the credibility and persuasiveness of what petitioner and

respondent offer into evidence at trial.” Petitioner did not offer anything

into evidence at trial, nor has he made any arguments challenging the

7

[*7] mailing beyond repeatedly articulating the defects within the USPS

Forms 3877, points with which we agree. In contrast we found the

evidence proffered by respondent to be credible and persuasive, and we

believe that it is sufficient to establish proper mailing.

II.

Procedural Validity of the Notices of Deficiency

Petitioner contends that the Notices were invalid because of their

issuance by respondent’s AUR system. As we have repeatedly held, “[a]

valid petition is the basis of the Tax Court’s jurisdiction. To be valid, a

petition must be filed from a valid statutory notice.” Stamm Int’l Corp.

v. Commissioner, 84 T.C. 248, 252 (1985) (first citing Midland Mortg.

Co. v. Commissioner, 73 T.C. 902, 907 (1980); and then citing McCue v.

Commissioner, 1 T.C. 986, 988 (1943)).

Section 6212(a) authorizes the “Secretary” 2 to send a Notice of

Deficiency if he “determines that there is a deficiency in respect of any

tax.” (Emphasis added.) The U.S. Court of Appeals for the Ninth Circuit

has indicated that the issuance of a Notice of Deficiency should reflect

“a thoughtful and considered determination that the United States is

entitled to an amount not yet paid.” Scar v. Commissioner, 814 F.2d

1363, 1369 (9th Cir. 1987) (quoting Couzens v. Commissioner, 11 B.T.A.

1040, 1159 (1928)), rev’g 81 T.C. 855 (1983). The Ninth Circuit further

indicated that “the word ‘determination’ irresistibly connotes

consideration, resolution, conclusion, and judgment.” Id. at 1368

(quoting Terminal Wine Co. v. Commissioner, 1 B.T.A. 697, 701 (1925)).

This Court has previously found Notices of Deficiency issued by

the AUR system to reflect a thoughtful and considered determination.

See Kelley v. Commissioner, T.C. Memo. 2023-126, at *4–7 (finding that

on the basis of the presumption of regularity and evidence of prior

notices, an AUR-system-issued Notice of Deficiency reflected a

“thoughtful and considered determination,” made by a duly authorized

delegate of the Secretary (quoting Portillo v. Commissioner, 932 F.2d

1128, 1132 (5th Cir. 1991), aff’g in part, rev’g in part T.C. Memo. 199068)). Similar to the taxpayers in Kelley, petitioner received and

responded to a Notice CP 2000 before the issuance of both Notices of

Deficiency. 3

“It is the settled general rule that all necessary

2 Section

7701(a)(11)(B) provides that the term “Secretary,” as used in the

Code, means “the Secretary of the Treasury or his delegate.”

3 Respondent issued petitioner a Notice CP 2000 informing him of proposed

changes to his 2016 Form 1040EZ, Income Tax Return for Single and Joint Filers with

8

[*8] prerequisites to the validity of official action are presumed to have

been complied with, and that where the contrary is asserted it must be

affirmatively shown.” Lewis v. United States, 279 U.S. 63, 73 (1929);

see also Harriss v. Commissioner, T.C. Memo. 2021-31, at *10. Given

this presumption and petitioner’s failure to present any evidence that

supports the contrary, we are persuaded that the Notices of Deficiency

reflected a thoughtful and considered determination made by a duly

authorized delegate of the Secretary and are therefore valid.

III.

Timeliness of Petition Filing

In a case seeking the redetermination of a deficiency, the

jurisdiction of the Court depends, in part, on the timely filing of a

petition by the taxpayer.

Hallmark Rsch. Collective, 159 T.C.

at 130 & n.4 (collecting cases); Brown v. Commissioner, 78 T.C. 215, 220

(1982); see Sanders v. Commissioner, 161 T.C. 112, 119–20 (2023)

(holding that the Court will continue treating the deficiency deadline as

jurisdictional in cases appealable to jurisdictions outside the U.S. Court

of Appeals for the Third Circuit). In this regard section 6213(a) provides

that the petition must be filed with the Court within 90 days, or 150 days

if the Notice is addressed to a person outside the United States, after

the Notice of Deficiency is mailed (not counting Saturday, Sunday, or a

legal holiday in the District of Columbia as the last day). The present

case is presumably appealable to the Ninth Circuit, see § 7482(b), which

has held that this 90-day (or 150-day) deficiency deadline is

jurisdictional, see Organic Cannabis Found., LLC v. Commissioner, 962

F.3d at 1092.

In the Motion to Dismiss, as addressed above, respondent asserts

that the 2016 Notice was sent by certified mail on March 4, 2019, and

the 2017 Notice was sent by certified mail on August 5, 2019. Petitioner

electronically filed the Petition on January 30, 2022, 1,064 days after

the mailing of the 2016 Notice and 910 days after the mailing of the 2017

Notice. Respondent contends that petitioner failed to file within the

90-day period prescribed by section 6213(a). While petitioner filed an

No Dependents, on September 24, 2018, and his 2017 Form 1040EZ on February 25,

2019. Respondent provided an AUR Case History Transcript which confirms that

petitioner responded to the 2016 Notice CP 2000 three times: October 25, 2018,

November 30, 2018, and February 5, 2019. The AUR Case History shows that

Petitioner responded to the 2017 Notice CP 2000 two times: March 19 and June 25,

2019. Respondent also issued petitioner a Notice CP 22A informing him that

respondent had changed his 2016 Form 1040EZ on July 15, 2019, and his 2017 Form

1040EZ on December 16, 2019.

9

[*9] objection, he does not dispute the date that the Notices were mailed

or the date that he filed his Petition. Instead, petitioner focuses

exclusively on the validity of the Notices reiterating his argument that

the Notices were issued by AUR, which is not a delegated authority. We

already addressed this argument and find it to be wholly without merit.

Petitioner asks: “[W]ill this court unilaterally decide to hold

Petitioner accountable to prescribed rules, regulation, and procedural

time frames . . . and not also hold Respondent equally accountable to the

prescribed rules, regulations and procedures by the Secretary”? This

Court is not acting unilaterally. Congress has limited our jurisdiction

in the deficiency context to those cases in which a petition is timely filed,

and we have no authority to extend the deadline in section 6213(a). See

Organic Cannabis Found., LLC v. Commissioner, 962 F.3d at 1092–95;

Hallmark Rsch. Collective, 159 T.C. at 166–67; see also Axe v.

Commissioner, 58 T.C. 256, 259 (1972) (“We have no authority to extend

the period provided by law for filing a petition with the Tax Court

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

cause for its not being filed within the required period.”). Petitioner has

failed to establish that the Petition was filed with this Court within the

required 90-day period.

For these reasons, we will grant respondent’s Motion to Dismiss

for Lack of Jurisdiction, filed September 27, 2024. We will deny

petitioner’s Motion to Dismiss for Lack of Jurisdiction, filed May 27,

2024.

To reflect the foregoing,

An order of dismissal for lack of jurisdiction will be entered.