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Tilden v. Commissioner of Internal Revenue

United States Court of Appeals, Seventh Circuit

January 13, 2017

Robert H. Tilden, Petitioner-Appellant,
v.
Commissioner of Internal Revenue, Respondent-Appellee.

          Argued October 6, 2016

         Appeal from the United States Tax Court. No. 11089-15 - Robert N. Armen, Jr., Special Trial Judge.

          Before WOOD, Chief Judge, and Easterbrook and Manion, Circuit Judges.

          Easterbrook, Circuit Judge.

         Taxpayers living in the United States have 90 days to file a petition asking the Tax Court to review a notice of deficiency sent by the Commissioner of Internal Revenue. 26 U.S.C. §6213(a). Robert Tilden got such a notice covering his tax years 2005, 2010, 2011, and 2012. The last day to seek review was April 21, 2015. The Tax Court received Tilden's petition on April 29, 2015, and dis- missed it as untimely. The Commissioner has confessed error-properly so, we conclude.

         Although §6213(a) requires petitions to be filed within 90 days, another statute treats mailing as filing. 26 U.S.C. §7502. Section 7502(a) makes the date of the postmark dispositive. Section 7502(b) adds that the mailing-as-filing rule "shall apply in the case of postmarks not made by the United States Postal Service only if and to the extent provided by regulations prescribed by the Secretary." That matters to Tilden, because his lawyer's staff did not put a stamp on the envelope, and the Postal Service did not apply a postmark. Instead the staff purchased postage (both first-class mail and the supplement for certified delivery) from Stamps.com, a service that supplies print-at-home postage so that everyone can enjoy the convenience of a traditional postage meter. The staff printed a label from Stamps.com; it is dated April 21, 2015, and a member of the staff states that she delivered the envelope to the Postal Service in Salt Lake City, Utah, on that date. Tilden contends that this makes the filing timely under 26 C.F.R. §301.7502-l(c)(1)(iii)(B)(1), which reads:

         If the postmark on the envelope is made other than by the U.S. Postal Service -

(i) The postmark so made must bear a legible date on or before the last date, or the last day of the period, prescribed for filing the document or making the payment; and
(ii) The document or payment must be received by the agency, officer, or office with which it is required to be filed not later than the time when a document or payment 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, or the last day of the period, prescribed for filing the document or making the payment.

         In the Tax Court the Commissioner accepted Tilden's contention that the envelope had been delivered to the Postal Service on April 21 but invoked the next principal division, (B)(2):

If a document or payment described in paragraph (c)(1)(iii)(B)(1) is received after the time when a document or payment so mailed and so postmarked by the U.S. Postal Service would ordinarily be received, the document or payment is treated as having been received at the time when a document or payment so mailed and so postmarked would ordinarily be received if the person who is required to file the document or make the payment establishes -
(i) That it was actually deposited in the U.S. mail before the last collection of mail from the place of deposit that was postmarked (except for the metered mail) by the U.S. Postal Service on or before the last date, or the last day of the period, prescribed for filing the document or making the payment;
(ii) That the delay in receiving the document or payment was due to a delay in the ...

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