Petition for Redetermination Was Timely Filed; Tax Court Dismissal Reversed and Remanded (Tilden, CA-7)

CCH Tax Day Report

The Tax Court erred when it dismissed a taxpayer’s petition for redetermination of a deficiency notice because it was untimely. While it is true that litigants cannot stipulate to jurisdiction, they may agree on the facts that determine jurisdiction and the parties agreed that the petition was timely under the timely-mailing-is-timely-filing rules. Although the government initially contended that the taxpayer’s petition was untimely, it later acknowledged that the U.S. Postal Service (USPS) received the petition on the last day for filing and the IRS received it within the usual delivery time.

Comment: The taxpayer’s attorneys purchased the postage for mailing the petition (first class mail and postage for certified delivery) from The postage was printed on the last day for filing the petition and a member of the law firm’s staff testified that she delivered the petition in its stamped envelope to the local post office on that date. The staff member did not ask for hand cancellation of the postage on the envelope. The Tax Court held that the “postmark” upon which the taxpayer relied (the postage purchase date) was superseded by USPS tracking data, which in turn served as a “postmark.” Therefore, the taxpayer neither filed nor mailed the petition within the jurisdictional 90-day period.

The Tax Court did not have a sound reason to doubt that the petition was indeed handed to the USPS on the date agreed. Further, the government conceded that all of the requirements of the timely-mailing-is-timely-filing rules were satisfied and that eight days for certified mail to reach Washington, D.C. from Utah was not excessive. Therefore, the only basis for dismissing the taxpayer’s petition was a legal conclusion that Reg. §301.7502-1(c)(1)(iii)(B)(3) was controlling. However, that section of the regulation specifies what happens if an envelope has both a private postmark and an official postmark and the envelope containing the taxpayer’s petition had only the “private” postmark generated by Finally, while the 20-digit tracking number was not entered into the USPS’s tracking system for two days after the envelope was delivered to the USPS, the tracking number was entered at a different post office than the drop-off location and there was no evidence that the USPS treats tracking data as a form of “postmark.”

Reversing and remanding the Tax Court 110 TCM 314, Dec. 60,414(M), TC Memo. 2015-188

R.H. Tilden, CA-7, 2017-1 ustc ¶50,130

Other References:

Code Sec. 6213

CCH Reference – 2017FED ¶37,549.356

CCH Reference – 2017FED ¶37,549.45

CCH Reference – 2017FED ¶37,549.504

Code Sec. 7502

CCH Reference – 2017FED ¶42,625.42

CCH Reference – 2017FED ¶42,625.44

Tax Research Consultant

CCH Reference – TRC IRS: 27,158



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