Robert H. Tilden, Petitioner-Appellant,
Commissioner of Internal Revenue, Respondent-Appellee.
October 6, 2016
from the United States Tax Court. No. 11089-15 - Robert N.
Armen, Jr., Special Trial Judge.
WOOD, Chief Judge, and Easterbrook and Manion, Circuit
Easterbrook, Circuit Judge.
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.
§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:
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
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
(ii) That the delay in receiving the document or payment was
due to a delay in the ...