Opinion
10470-22S
06-12-2023
KEVIN LAWRENCE KANGAS AND CARLA N. KANGAS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
Pending before the Court in this case for the redetermination of a deficiency is respondent's Motion to Dismiss for Lack of Jurisdiction, filed July 7, 2022. Therein, respondent asserts that the case should be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. In a Response, filed July 11, 2022, petitioners oppose the Motion on the ground that they timely mailed the Petition. For the reasons set forth below, we will direct respondent to file a reply to petitioners' Response.
On January 10, 2022, respondent sent to petitioners, by certified mail to their last known address, a Notice of Deficiency for the taxable year 2019. The 90-day period for timely filing a petition as to that Notice expired on April 11, 2022.
On May 2, 2022, the Court received and filed the Petition to commence this case. The Petition was delivered to the Court by the United States Postal Service (USPS). The envelope containing the Petition was properly addressed and did not have a USPS postmark. Rather, affixed to the envelope was a legible label dated April 11, 2022, from Endicia.com, a USPS-approved online postage services vendor (i.e., a legible, non-USPS postmark). See Pearson v. Commissioner, 149 T.C. 424 (2017). That label included a USPS tracking number.
See, e.g., https://faq.usps.com/s/article/What-are-PC-Postag-ePostage.
In his Motion to Dismiss, respondent appears to acknowledge that the envelope containing the Petition bore a timely, legible, non-USPS postmark dated April 11, 2022, but he asserts, based on information he has apparently retrieved using the aforementioned USPS tracking number, that the Petition is not timely because, according to this information, "the USPS Origin Facility in Fairbanks, Alaska accepted the package on April 14, 2022, which date is 95 days after the mailing of the Notice."
As noted above, the only postmark on the envelope containing the Petition was the timely, legible, non-USPS postmark. And respondent has not argued, or provided any evidentiary basis to support a claim, that the Petition was received "later than the time when a [petition] * * * contained in an envelope that is properly addressed, mailed, and sent by the same class of mail would ordinarily be received if it were postmarked at the same point of origin by the U.S. Postal Service on the last date * * * prescribed for filing the document." Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(1)(ii). Accordingly, respondent appears to be making an argument that the USPS tracking information attached to his Motion to Dismiss should supplant the timely, legible, non-USPS postmark on the envelope containing the Petition.
We note that, while the envelope containing the Petition reflects that it was sent "Priority Mail 3-Day," the USPS tracking information attached to respondent's Motion to Dismiss indicates that 18 days passed between April 14, 2022, the time when USPS apparently "accepted" the item, and May 2, 2022, the time when that item was delivered to the Court. Respondent has not asserted in his Motion that the Petition in this case was received after the time when a petition timely mailed and postmarked by the USPS would ordinarily be received. In any event, it would appear at this point that respondent's evidence shows that any "delay in [the Court's] receiving the [Petition in this case] was due to a delay in the transmission of the U.S. mail." Treas. Reg. § 301.7502-1(c)(1)(B)(2)(ii).
If this is in fact respondent's position, we are unable to reconcile it with this Court's precedent in Pearson or the opinion of the U.S. Court of Appeals for the Seventh Circuit in Tilden v. Commissioner, 846 F.3d 882 (7th Cir. 2017), rev'g and remanding T.C. Memo. 2015-188, which explicitly rejected such a position. Nor has respondent provided any authority for such a position in his Motion. In view of the foregoing, and petitioners' assertion in their Response that they mailed the Petition on the evening of April 10, 2022, it is
Indeed, we would note for that matter that in rejecting such a position Judge Easterbrook expressed "doubt * * * that the date an envelope enters the Postal Service's tracking system is a sure indicator of the date the envelope was placed in the mail." Id. at 887.
ORDERED that, on or before July 5, 2023, respondent shall file a reply to petitioners' Response to Motion to Dismiss for Lack of Jurisdiction, filed July 11, 2022, and shall address in full the matters discussed in this Order.