A Reminder in the Basics: Timely Mailing is Timely Filing

Timely mailing is timely filing.¹ Seriously, it is.² In the case of Curtiss T. Williams, we are reminded of how important it is to ensure compliance and maintain proof of compliance with the mailbox rule of the Internal Revenue Code.³ While really just a mundane case of a taxpayer getting his petition dismissed due to late filing, the case presents a worthwhile reminder that timely filing of a petition is a jurisdictional issue. Without timely filing, the Tax Court lacks jurisdiction and the taxpayer will be forced to seek relief by paying the tax and suing for a refund in the appropriate U. S. District Court or in the U.S. Court of Federal Claims.

Background on the Jurisdiction of Tax Court

The Tax Court is a court of limited jurisdiction being a court of record whose existence is established under Article I of the U.S. Constitution and created under IRC § 7441.⁴ Subject matter jurisdiction is generally related to redetermination of deficiencies assessed by the Commissioner of Internal Revenue.⁵ However, jurisdiction must be shown affirmatively, and the petitioner (i.e. the taxpayer who disagrees with an assessed tax liability), as the party invoking jurisdiction, bears the burden of proving that the Tax Court has jurisdiction over the case.⁶ To meet this burden, the petitioner must establish affirmatively all facts giving rise to the jurisdiction of the Tax Court.⁷

Jurisdiction of the Tax Court – Time Limitation

As discussed above, the Tax Court is an Article I court established under the U.S. Constitution and created by statute. Accordingly, the jurisdiction of the Tax Court is limited by statute. Case in point is the 90-day limitation to file a petition with the Tax Court following receipt of a Notice of Deficiency (“NOD”).⁸ It is easy to view the 90-day [mostly] hard and fast deadline as a countdown and a technicality inducing rule created to disable innocent unsuspecting taxpayers. This rule can also be viewed as an enabling rule, giving a taxpayer the ability to seek relief without having to first pay the underlying tax (a.k.a. pay-to-play). Filing within the 90-day statutory period is jurisdictional and as such it is absolutely critical for a taxpayer to properly and timely file a petition with the Tax Court., Without filing a petition in a timely manner, a taxpayer loses the right to proceed in the Tax Court. There is no maybe; the Tax Court either has jurisdiction or it does not.⁹

Curtiss  Case

In the Curtiss case, the Tax Court was without jurisdiction and was unable to hear the case as a result of (1) the failure to receive the petition within 90 days of the NOD, and (2) the inability of the taxpayer to carry his burden that the timely mailing rule was satisfied so as to provide relief for late receipt of the petition by the Tax Court. The jurisdictional hurdle in this case was to file the Tax Court on or before the December 4, 2014 deadline or deposit the petition in the mail to be post-marked on or before the deadline. Curtiss did not have any proof of mailing to establish that he met this deadline.

Curtiss’ Mistakes – Knowing What to Do

Curtiss‘ attorney states that the petition was prepared December 2^nd and dropped into a USPS drop box the day before the deadline, on December 3^rd, thus seemingly satisfying the mailbox rule under IRC § 7502. Curtiss‘ attorney seems to have forgotten that the petitioner would have a cross to carry in the form of proving timely mailing in order to obtain Tax Court jurisdiction. In such cases, the regulations recommend, and [apparently most] practitioners stick to, certified mail. With registered or certified mail, the receipt received at the post office with the postmark is prima facia evidence of timely mailing (if such postmark is on or before the due date).¹⁰ It is worth noting however that certain non-USPS options, can satisfy the mailbox rule requirements and be subject to similar treatment under IRC § 7502.¹¹

Take-away and Reminder

The regulations plainly state “Accordingly, the risk that the document or payment will not be postmarked on the day that it is deposited in the mail may be eliminated by the use of registered or certified mail.”¹² For a few extra dollars, why not go to the trouble of going to the post office and getting a postmarked Form 3800 (Certified Mail Receipt)? Literally, it is a taxpayer’s golden ticket to Tax Court.¹³

As a bonus note, do not trust the deadline listed in the NOD.¹⁴

Joshua W. Sage, J.D., LL.M.

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1. See Brandon C. Dixon, J.D., LL.M., Don’t Be SOL Because of the SOL, Edmondson Sage Dixon, PLLC (Jan. 14, 2019).
2. See IRC § 7502
3. Williams v. Comm’r, TC Memo 2019-66.
4. IRC § 7441
5. See IRC 6211-6216, IRM 35.1.1
6. See David Dung, M.D., Inc. v. Comm’r, 114 T.C. 268, 270 (2000).
7. Id. At 270.
8. See IRC § 6015(e)(1)(A)
9. Though see Carlton Smith, Implications for the Tax World of New Supreme Court Opinion Finding Another Claims Processing Rule Not Jurisdictional, Procedurally Taxing (June 11, 2019) hinting that strict jurisdictional deadlines may not or should not always be the case.
10. Treas. Reg. § 301.7502-1(e)(2)(i)
11. See IRC § 7502(f), Treas. Reg. § 301.7502-1(c)(3), Treas. Reg. § 301.7502-1(e)(2)(ii)
12. Treas. Reg. § 301.7502-1(c)(2)
13. See [I’ve Got a] Golden Ticket, E. Cartman  https://www.youtube.com/watch?v=8vNZ4Pm-rIM.
14. See Nauflett v. Comm’r, 892 F.3d. 649 (4th Cir. 2018).