The Effect of the Missing Postmark

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Today’s case highlights the difference in treatment of envelopes with no postmark between the Court of Federal Claims (CFC) and the Tax Court.  It turns out that on this issue, petitioners receive better treatment at the Tax Court.  Of course, it is better not to find out what a court thinks about a missing postmark.  For those filing Tax Court petitions, the ability to electronically file offers an easy way around the postmark/private delivery service/postal delay issue.  Credit to Carl Smith for spotting this case and providing much of the text of this post. 

I have heard that only 15% of Tax Court petitioners have taken advantage of the post-DAWSON ability to electronically file petitions.  The Tax Court is no doubt disappointed at this uptake of a provision that could save it time in processing petitions and in having to decide these types of cases.  For a relatively long time, individuals have been able to file electronically in the Court of Federal Claims, district courts, bankruptcy courts and other federal courts.  Yet, service from the post office continues its siren song for many petitioners.  With the low uptake on the Tax Court’s electronic filing system for petitions, a decent number of practitioners must continue to prefer USPS or a private delivery service, but in many instances the people using the non-electronic filing options are pro se and low income.

The taxpayers in the case at issue did not have an electronic filing option because the document they were filing that causes the problem was not a petition but a refund claim.  As of yet, the IRS does not have a way to electronically file refund claims (amended returns) that go back more than two years, apart from original tax returns.  Even where you cannot electronically file documents with the IRS, faxing documents to the IRS provides a fast way to transmit them and immediately receive a receipt.  But the IRS instructs filers of Form 843 refund claims to mail in the form.  The mailing of documents continues to fill the pages of case books with situations where things do not work out.


In an opinion issued by the CFC in a refund case, McCaffery v. United States, No. 1:19-cv-01112 (Ct. Fed. Cl. 2021), the issue was whether the taxpayer could introduce extrinsic evidence of the mailing of a refund claim where the claim arrived at the IRS just after the filing deadline, but the envelope in which the claim came had no postmark.  Under regulations, extrinsic evidence is allowed where the postmark is illegible, and the Tax Court has extended the reg.’s reasoning to situations where there is no postmark at all.  The CFC disagrees with the Tax Court’s interpretation and would not accept parol evidence in the absence of a postmark.  The CFC dismisses the case for lack of jurisdiction, without discussing whether a dismissal for failure to state a claim might be more appropriate (i.e., there is no discussion of the Walby Fed. Cir. opinion which we discuss here in a post by Carl). 

Here’s what the CFC wrote about the Tax Court’s position:

Plaintiffs argue that extrinsic evidence may be used to prove the date of mailing for purposes of the deemed delivery rule even when the postmark is absent. They cite a line of cases from the Tax Court holding that extrinsic evidence as to timely mailing must be considered when an envelope contains no postmark at all. Pls.’ Opp. at 5 (citing to Sylvan v. Comm’r, 65 T.C. 548 (1975); Seely v. Comm’r, 119 T.C.M. (CCH) 1031, 2020 WL 201751 (2020); Williams v. Comm’r, 117 T.C.M. (CCH) 1328, 2019 WL 2373552 (2019); Blake v. Comm’r, 94 T.C.M. (CCH) 51, 2007 WL 2011294 (2007); Menard, Inc. v. Comm’r, 41 T.C.M. (CCH) 1279, 1981 WL 10531 (1981); Monasmith v. Comm’r, 38 T.C.M. (CCH) 60, 1979 WL 3117 (1979); Ruegsegger v. Comm’r, 68 T.C. 463 (1977)). That line of cases, however, originates in conceptual errors by the Tax Court in Sylvan.

In that case, much like this one, the Tax Court confronted an envelope with no postmark that was delivered after a deadline. The court found a gap in the statute: “There is nothing at all in the statute or legislative history indicating what Congress intended where the postmark is illegible; where there is no postmark because the petition was inserted in a new postal cover when the original cover was damaged; or where no postmark is affixed due to oversight or malfunction of a machine.” Sylvan, 65 T.C. at 552. “[I]n these circumstances,” the court reasoned, its “task . . . is to ask what Congress would have intended on a point not presented to its mind, if the point had been present.” Id. (quotes omitted). The court concluded, over a dissent, that extrinsic evidence should be admitted to prove the date of mailing for purposes of the deemed delivery rule not only when a postmark is illegible, but where it is absent.

That was erroneous for several reasons. To begin with, the Tax Court was mistaken that the Internal Revenue Code contains “nothing at all . . . indicating what Congress intended” in cases of absent postmarks. Id. Section 6511(a) contains a deadline, and section 7502 contains a deemed-delivery exception that is textually inapplicable when a postmark is missing. There is thus no gap to be filled; a late-received envelope lacking a postmark is simply untimely, whatever the extrinsic evidence might be. When a court treats circumstances covered by a general rule as falling into a gap, the court is not really “ask[ing] what Congress would have intended,” Sylvan, 65 T.C. at 552, but presuming that the statute should say something different.8 See also Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 94 (2012) (“As Justice Louis Brandeis put the point: ‘A casus omissus does not justify judicial legislation.’ And Brandeis again: ‘To supply omissions transcends the judicial function.’”) (citing Ebert v. Poston, 266 U.S. 548, 554 (1925), and Iselin v. United States, 270 U.S. 245, 251 (1926)).

Besides, when Sylvan was decided, the Treasury had already promulgated the regulation providing for extrinsic evidence of the contents of illegible postmarks, but not absent ones. See Republication, 32 Fed. Reg. 15241, 15355 (Nov. 3, 1967); see also Sylvan, 65 T.C. at 560 (Drennen, J., dissenting) (noting that the regulations then in effect “provide[ ] that if the postmark on the envelope is not legible, the petitioner has the burden of proving the time when the postmark was made”). By sanctioning proof by extrinsic evidence in other circumstances, the Tax Court merely created a new exception that neither Congress nor the administering agency authorized.9 That, too, is inappropriate: A judge should not “elaborate unprovided-for exceptions to a text, as Justice Blackmun noted while a circuit judge: ‘If the Congress had intended to provide additional exceptions, it would have done so in clear language.’” Scalia & Garner, supra, at 93 (citing Petteys v. Butler, 367 F.2d 528, 538 (8th Cir. 1966) (Blackmun, J., dissenting)). Nor should a court assume that because a legislature provided relief from a general rule in one circumstance, similar relief should be applied in other circumstances. See Easterbrook, supra, at 541 (“Legislators seeking only to further the public interest may conclude that the provision of public rules should reach so far and no farther[.]”).

Limiting judicial discretion to elaborate on enacted texts is especially important when it comes to this Court’s jurisdiction. This Court’s authority to hear cases brought against the United States rests on waivers of sovereign immunity which must be interpreted strictly. See Block v. N. Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 287 (1983) (“[W]hen Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.”); see also, e.g., Sumner v. United States, 71 Fed. Cl. 627, 629 (2006). That makes it inappropriate to find jurisdiction by implying additional exceptions to Plaintiffs’ deadlines, or otherwise enlarging the deemed delivery rule.

In short — contrary to Sylvan — cases like this one are controlled by the plain text of the relevant statutes and regulations. See, e.g., Myore v. Nicholson, 489 F.3d 1207, 1211 (Fed. Cir. 2007) (“If the statutory language is clear and unambiguous, the inquiry ends with the plain meaning.”) (citing Roberto v. Dep’t of the Navy, 440 F.3d 1341, 1350 (Fed. Cir. 2006)).

The result in this case is harsh. Mr. McCaffery has declared — without contradiction, and with some circumstantial corroboration — that he mailed the amended return on a day when it would have been deemed timely, if it only had been postmarked.

In Sylvan, the date of receipt left the court with “no doubt whatsoever” that the envelope was mailed on a day when a contemporaneously applied postmark would have satisfied the deemed delivery rule. 65 T.C. at 550-51. Plaintiffs cite other cases where it seems unfair not to consider evidence of mailing. E.g., Pls.’ Opp. at 8 (citing to Glenn v. Comm’r, 105 T.C.M. (CCH) 1228, 2013 WL 424879 (2013) (noting that the Postal Service’s employee made an error, and but for that error, the envelope in question would have contained a timely postmarked date)). One can even imagine two filings with the same deadline mailed on the same day, one with a missing postmark and one with an illegible postmark, where extrinsic evidence on deemed delivery can only be admitted as to the latter. Like many bright-line rules, the deemed delivery rule might be simple and predictable to administer, but its results are not always satisfying in close cases.

Yet the text controls.


  1. Carl Smith says

    Some may wonder about the practical importance of the comment that the CFC failed to consider whether the refund claim filing requirement of 6511(a) is really jurisdictional anymore after recent Supreme Court case law. (As pointed out in the post, just last year, a panel of the Fed. Cir. in Walby, in dicta, doubted the continued validity of the Fed. Cir.’s precedent holding the requirement jurisdictional to a refund suit.) If it were not jurisdictional, then the requirement would be mandatory only if the DOJ raised the issue. But, the DOJ might, in such case, ask the IRS for its views, and the IRS might adopt the Tax Court’ position and consider taxpayer-proffered extrinsic evidence of mailing. If the IRS was then satisfied that the envelope containing the claim had been timely mailed, the IRS could instruct the DOJ to waive or forfeit the timeliness requirement, and the CFC would not be able to issue a ruling on it. By treating the requirement as jurisdictional, the CFC must look into the issue, regardless of what the parties think, and enforce the requirement as the CFC understands the law.

  2. Steve Milgrom says

    It’s a sad day when the taxpayer does everything correctly and then one arm of the Federal government fails to perform its duty (cancelling the postage stamp with a legible date) that both the taxpayer and another arm of the Federal government rely upon to make the system work, and the only one who suffers is the innocent taxpayer. And shame on the DOJ and IRS for taking advantage of the mistake made by the post office. The refund claim in this case was actually received by the IRS 6 days after the filing deadline. While there was no “official postmark,” the postage stamp had “Sold Apr 17, 2017 First Class” printed on it. The taxpayer submitted a declaration stating he mailed it on the 17th (the 18th was the SOL date), which was backed up by an email from the taxpayer to his accountant confirming he had mailed the claim. The only fact that is not clear from the opinion is whether the postage stamp was from a private issuer or the US post office.

    The taxpayer appears to have done everything correctly. He could have taken the extra step of using certified or registered mail to avoid this outcome, but the law does not require this. While Carl correctly points out the once the DOJ raised the jurisdictional issue the court had little choice but to deal with it, the outcome is simply unjust. Congrats to the Tax Court for seeing this in its jurisprudence. Other than the taxpayer, every human being involved in this case were Federal government employees, IRS, DOJ, Court of Claims. I’ve never been employed by a government entity. Is there something that goes with the job that causes one to lose the ability to see the right result and figure out how to get there?

    • Richard Stack says

      Steve — In my experience as a former IRS and DOJ attorney, about 25% of government employees want to “win” at any cost, regardless of the unfairness of the result to the taxpayer; 25% of federal employees (with considerable overlap from the first group) believe that refunds should never be issued to taxpayers because they must “safeguard” the Treasury against all taxpayer claims; and the remaining 50%-75% of government employees are fair-minded and wish to reach an equitable result, if there’s a reasonable basis to interpret the governing law in the taxpayer’s favor.

      In the 10 years since I left the government to practice in the private sector, I’ve noticed government litigators taking increasingly hard-lined positions and a widening compassion-deficit on their part. That could simply be a function of being on the “other side” and my realization that the feds don’t always wear the “white hats.” Even as a fed, however, I viewed myself as a public servant, sought to objectively analyze both sides of an issue, and place myself in the taxpayer’s shoes. Whenever possible, I sought to settle my cases, even if I could have knocked out the taxpayer on a motion for summary judgment. I’d venture to say that government attorneys who follow the “public servant” model of practice are a vanishing breed.

      • Steve Milgrom says

        If up to 50% of government litigators don’t follow the public servant model then there is a major failure of leadership from above. As Nina Olson points out, the Commissioner has a legal obligation under sec. 7803(a)(3) (the taxpayer bill of rights) to ensure that every employee of the IRS act in accordance with the various rights set forth, including the right to a fair and just tax system. Those who work to win at all costs at a minimum need more training in TBOR.

      • Norman Diamond says

        ‘In my experience as a former IRS and DOJ attorney, about 25% of government employees want to “win” at any cost, regardless of the unfairness of the result to the taxpayer; [some] believe that refunds should never be issued to taxpayers […]; and the remaining 50%-75% of government employees are fair-minded and wish to reach an equitable result’

        Maybe you met those 50%-75% because you were working inside the IRS and DOJ, but honest taxpayers never get to meet them.

        In any conflict between Justice and justice, Justice wins because justice can’t get a lawyer.

  3. Thanks for finding this case, Carl, and thanks for blogging it, Keith. This was a frustratingly rigid and mechanical opinion. To say that “the text controls” when there IS NO TEXT is utterly weird. That logic would invalidate the regulations which deal with other gaps in the statute, gaps created by illegible postmarks (the statutory text is no less “plain” there) or by double postmarks (again, nothing in the statute admits of an exception to the “plan language” of the statute). But the regs leave unaddressed the last gap created by the absence of a postmark. The Tax Court is correct to fill that gap with a rule. The CFC is wrong to reject that.

  4. Bob Kamman says

    Elections have consequences. One is that a treatise co-authored by the late Justice Scalia is more likely to find its way into a Court of Federal Claims opinion, like this one. Judge Schwartz – nominated three times, in 2017, 2019 and 2020 – and confirmed once, last December – previously served as counsel to Cause of Action Institute, “a 501(c)(3) oversight group advocating for economic freedom and individual opportunity advanced by honest, accountable, and limited government.” It receives its funding from conservative philanthropists.

  5. Mike Desmond says

    One of the first cases I handled as a young DOJ trial attorney was Lewis v. United States, a suit seeking a refund of a couple thousand dollars in late filing/payment penalties – jury demand and all. Lost postmark, timing and Service Center processing were a little off, taxpayers wanted attorneys fees as well. The trial court denied cross motions for summary judgment, resolution was reached on the merits with attorneys fees reserved and later denied — all on the extrinsic evidence question. On appeal, the Ninth Circuit — with retired Justice White dissenting – reversed the denial of attorneys fees. Early career lesson for me, a Supreme Court justice can agree with your position (here, on the ability to introduce extrinsic evidence) yet still have it finally determined to be “not substantially justified.” The case also got an honorable mention in Tom Herman’s old tax column on the front page of the Wall Street Journal. Glad to see 7502 continues to provide work for younger attorneys!

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