Lack of postmark does not mean petition was not mailed timely

By James A. Beavers, CPA, CGMA, J.D., LL.M.

The Tax Court, relying on extrinsic evidence, held that a married couple had timely mailed a Tax Court petition, which was received by the Tax Court after the filing deadline but in an envelope that bore no postmark.

Background

On March 28, 2017, the IRS mailed a notice of deficiency for the years 2013, 2014, and 2015 to Michael and Nancy Seely by certified mail to their last known address. The notice of deficiency advised the Seelys that they had 90 days from the date of the notice to file a petition in the Tax Court if they wished to contest the deficiency, and that under that rule, based on the date of the notice, they had until June 26, 2017, to file a petition.

The Seelys' attorney, Scott Boyce, prepared a petition seeking a redetermination of the deficiencies and mailed it to the Tax Court on June 22, 2017. The court received the petition on July 17, 2017, 111 days after the mailing of the notice of deficiency. The envelope in which the petition was mailed was properly addressed to the Tax Court and appeared to have been delivered by the U.S. Postal Service (the USPS) because it bore U.S. postage stamps. However, the envelope bore no discernible postmark and had no other markings affixed by the USPS.

On Sept. 8, 2017, in Tax Court, the IRS filed a motion to dismiss for lack of jurisdiction on the ground that the Seelys' Tax Court petition had not been timely filed. The Seelys objected, asserting that they had timely filed their petition because their attorney mailed it to the Tax Court on June 22, 2017, before the due date. To support this claim, Boyce supplied a declaration under penalty of perjury in which he stated that "on June 22, 2017 . . . [he] deposited into the [USPS] collection receptacle located at 690 Gage Blvd, Richland, Washington 99352, the tax court petition of Michael and Nancy Seely."

The Tax Court's decision

The Tax Court, relying on extrinsic evidence, held that the Seelys' petition was timely filed, even though the envelope lacked a postmark. Thus, it had jurisdiction to hear the Seelys' case.

As the Tax Court explained, it follows the "timely mailed, timely filed" rule in Sec. 7502(a). A document delivered by U.S. mail is timely mailed if "the postmark date falls . . . on or before the prescribed date" and the document is mailed, on or before that date, in an envelope with "postage prepaid, properly addressed" to the recipient. If those conditions are met, "the date of the United States postmark stamped on the cover in which such . . . document . . . is mailed shall be deemed to be the date of delivery."

The regulations provide specific rules if the envelope a document was mailed in has a USPS or non-USPS postmark but are silent regarding an envelope that has no postmark. However, when a postmark is missing, under Tax Court precedent, the postmark is deemed to be illegible, and the parties may introduce extrinsic evidence to prove the mailing date.

Here, the IRS and the Seelys agreed that the envelope in which the petition was mailed was properly addressed to the Tax Court and that the postmark was missing, but they disagreed as to whether the envelope was deposited in the U.S. mail on or before June 26, 2017.

The IRS alleged that it takes eight to 15 business days for the USPS to deliver a piece of mail to a government agency located in Washington, D.C., from any location in the United States. Because the Seelys did not dispute this contention, the court deemed the Seelys had conceded the point. The IRS further argued that if the Seelys' petition had been mailed on June 22, 2017, as Boyce had declared, it would have been delivered no later than July 14, 2017. Because it arrived on July 17, 2017, according to the IRS, Boyce's declaration was not convincing evidence that the petition had been mailed timely.

The Tax Court viewed things differently. It first noted that the petition arrived at the Tax Court only one business day late and that the Fourth of July holiday fell between the date of the alleged mailing and the delivery date. It then pointed out that in previous Tax Court cases, the court had found that holiday conditions at the post office (e.g., holiday closures, unusually large volumes of mail, or inefficiencies attributable to temporary staff) to be a possible explanation for short delays in delivery. Thus, the court was not persuaded by the IRS's argument that Boyce's declaration was not reliable because the mailing date alleged by the Seelys did "not square with its actual delivery date." Consequently, it found it was more likely than not that the Seelys' petition was mailed timely on June 22, 2017, and denied the IRS's motion to dismiss.

Reflections

Given that there is no definite way to tell when the Seelys mailed the petition, and given the vagaries of the USPS and the fact that, under the IRS's standards, delivery was only one day late, the Tax Court made a reasonable and fair decision (although the Seelys' attorney should have used certified mail to avoid the uncertainty). The Seelys will now get their day in court on the underlying substantive tax issues, which were not addressed in this decision.

Seely, T.C. Memo. 2020-6   

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