Boparai v. Commissioner of Internal Revenue

PURSUANT TO INTERNAL REVENUE CODE
SECTION 7463(b),THIS OPINION MAY NOT
BE TREATED AS PRECEDENT FOR ANY
OTHER CASE.

1Section references are to the Internal Revenue Code of
1986, as amended, in effect for the relevant period. Rule
references are to the Tax Court Rules of Practice and Procedure.

T.C. Summary Opinion 2009-49

UNITED STATES TAX COURT

KULVINDER S. BOPARAI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 12135-07S. Filed March 31, 2009.

CARLUZZO, Special Trial Judge:

This case was heard
pursuant to the provisions of section 7463.1 Pursuant to section
7463(b), the decision to be entered is not reviewable by any
– 2 –
2Rosie K. Boparai is not a party to this case. For
convenience we sometimes refer to the 2002 joint return that she
made with petitioner as petitioner’s return. With extensions,
that return was due to be filed on or before Aug. 15, 2003.
other court, and this opinion shall not be cited as precedent for
any other case.

In a notice of deficiency dated and mailed February 20,
2007, respondent determined a deficiency in and additions to tax
with respect to petitioner’s 2002 Federal income tax. The
parties have resolved all issues arising from adjustments made in
that notice of deficiency. The issue for decision is whether
this Court has jurisdiction to determine an overpayment in
petitioner’s 2002 Federal income tax.

Background

Some of the facts have been stipulated and are so found.
At all times relevant, petitioner and Rosie K. Boparai were
married to each other and lived together in California. They
filed an untimely joint 2002 Federal income tax return.2
Petitioner’s 2002 return shows that the Federal income tax
liability reported on that return has been overpaid. A refund
claim for that overpayment is made on that document. The parties
agree that the income, deductions, credits, tax, and overpayment
of tax shown on petitioner’s 2002 return are correct. The
overpayment of tax shown on that return is attributable entirely
to income tax withheld from petitioner’s (and perhaps Rosie
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Boparai’s) wages during 2002. By law, the income tax so withheld
that year is treated as having been paid on April 15, 2003. See
sec. 6513(b)(1).

The manner in which petitioner’s 2002 return was prepared
and first mailed to the Internal Revenue Service (IRS) is best
described by the following excerpts from the testimonies given by
petitioner and Rosie K. Boparai at trial:

THE COURT: All right, Dr. Boparai, this whole
controversy boils down to the preparation and the mailing of
your 2002 return. So I’m going to ask you a couple
questions about that return. Did you prepare it?
PETITIONER: Yes, Your Honor.
THE COURT: And when did you prepare it?
PETITIONER: Your Honor, on April 15, 2005.
THE COURT: All right, and you’re testifying [to that
date] based upon a date that’s shown on the return?
PETITIONER: That’s correct, Your Honor.
THE COURT: Do you have a specific recollection of the
event * * *?
* * * * * * *
PETITIONER: And I have a –- I make overpayments every
year because I have some incomplete records. I kind of do
that every year for the last three years –- last five years
in a row. I know the statute of limitations. So I try to,
you know –- I try to get all my information, try to make –-
you know, get my returns in, but for –- for circumstances
beyond my control, I am not able to do that because I don’t
get all the information in. So I make overpayments every
year. I follow the statute of limitations, and I have done
that for 1997, ‘98, ‘99, 2000, 2001, 2002, 2003.
* * * * * * *
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And –- and I and my wife –- we both went to the post
office and returned –- signed the returns and mailed it in
on the 15th.
THE COURT: All right, so you went together to the post
office?
PETITIONER: That’s correct, right before the deadline.
THE COURT: Did you mail it by certified or registered
mail?
PETITIONER: No, because the post office was closed and
they have people –- on the tax days, they have people
collecting mail until midnight.
* * * * * * *
But they don’t give you a receipt
* * * * * * *
THE COURT: What’s your recollection of the event?
ROSIE BOPARAI: Your Honor, I drove him that particular
day because he hadn’t finished completing all this and he
still wanted to check to make sure everything was accurate.
So he asked me to drive him so that he can in the meantime
still make sure everything was in order.
* * * * * * *
THE COURT: Do you recall what post office it was?
ROSIE BOPARAI: It was the main post office on Pegasus
Street. It’s quite a way from our place.
THE COURT: And do you recall what time it would have
been that you arrived there?
ROSIE BOPARAI: I think it was close to –- between
11:30 and 11:45.
THE COURT: At night?
ROSIE BOPARAI: Night.
– 5 –

As it turned out, petitioner’s 2002 return was not received
by the IRS until May 29, 2007, after it was mailed a second time
apparently in response to the notice of deficiency issued to
petitioner for 2002.

Discussion

Other than as set forth on their 2002 joint return, nothing
in the record suggests that petitioner or Rosie K. Boparai made
any refund claim for 2002. In his petition, petitioner, in
effect, requests that the Court determine an overpayment of
income tax as shown on that return.

Pursuant to section 6512(b)(1), and within the limitations
set forth in section 6512(b)(3), we have jurisdiction to
determine the existence and amount of any overpayment of tax to
be credited or refunded to the taxpayer for a year that is
properly before us for the redetermination of a deficiency. If
the refund claim for any year is made on a Federal income tax
return filed after a notice of deficiency for that year was
mailed to the taxpayer, and that notice of deficiency is not
mailed within 3 years from the date that the return was due to be
filed (with extensions), then our jurisdiction to determine any
overpayment for that year is limited to the tax paid during the
2-year period before the date the notice of deficiency was
mailed. See secs. 6511(a) and (b)(2), 6512(b)(1), (3)(B);
Commissioner v. Lundy, 516 U.S. 235 (1996).
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Under the circumstances, nothing more need be said with
respect to our overpayment jurisdiction, or the limitations on
that jurisdiction. There is no dispute between the parties with
respect to the periods of limitations on refunds, or the effect
that such periods have on this Court’s refund jurisdiction in a
deficiency case. Instead, the parties disagree over the date
that petitioner’s 2002 return should be considered filed. From
petitioner’s testimony it is clear that he understands that if
his 2002 return is considered filed when received by the IRS on
May 29, 2007, he would not be entitled to the refund claimed on
that return. On the other hand, respondent agrees that if
petitioner’s return is treated as having been filed on April 15,
2005, we have jurisdiction to determine the overpayment shown on
that return. See sec. 6512(b)(3)(C)(ii). Consequently, we turn
our attention to the determinative fact in this case, that is,
the date that petitioner’s 2002 return is considered to have been
filed, and note that we are presented with only two options–
April 15, 2005, the date that petitioner claims the return was
mailed, or May 29, 2007, the date that the return was received by
the IRS.

Generally, a document is considered filed with the IRS when
the document is delivered to and received by that agency. See
United States v. Lombardo, 241 U.S. 73, 76 (1916). In this case,
as a result of its having been mailed a second time, respondent
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3Pursuant to sec. 7463(b), the decision in this case is not
reviewable by any other court. But for that section, any appeal
would lie with the U.S. Court of Appeals for the Ninth Circuit.
See secs. 7463(b), 7482(b)(1)(A). Unless there are compelling
reasons to do otherwise, this Court applies the law in a manner
consistent with the holdings of the Court of Appeals to which an
appeal of its decision would lie, Golsen v. Commissioner, 54 T.C.
742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), even in cases
subject to sec. 7463(b).

received petitioner’s 2002 return on May 29, 2007. Applying the
general rule, that date would be considered the date that the
return was filed.

There are, however, several exceptions to the general rule
applicable to documents mailed for filing to the IRS. If the
conditions set forth in section 7502(a) are satisfied, then
certain documents are treated as having been received by the IRS
(and therefore filed) on the date shown by the U.S. postmark
stamped on the container in which the document was mailed. That
exception does not apply here because there is no evidence
showing the date of a U.S. postmark, if any, that might have been
placed on the envelope in which petitioner’s 2002 return was
first mailed. See Anderson v. United States, 966 F.2d 487 (9th
Cir. 1992).3 Similarly, section 7502(c), which provides that the
registration of a document sent by certified or registered mail
“shall be prima facie evidence that the * * * [document] was
delivered to the agency * * * to which addressed” is not
applicable because petitioner did not send his 2002 return by
certified or registered mail.
– 8 –

In addition to the section 7502 exceptions to the general
rule, the “mailbox” rule established under common law provides
that evidence showing that a document was properly mailed raises
a rebuttable presumption that it was received by the addressee.
Anderson v. United States, supra at 491. But there is
insufficient evidence in this case to show any such “proper”
mailing of petitioner’s 2002 return on April 15, 2005. The
record is silent with respect to basic information such as the
address to which the document was mailed, or the amount of
postage that might have been placed on the envelope in which it
was mailed. Furthermore, to the extent that the evidence of
mailing on April 15, 2005, does give rise to a rebuttable
presumption of receipt, that presumption has been rebutted by the
evidence introduced by respondent establishing that petitioner’s
2002 return was not received before May 29, 2007.
Because he mailed his 2002 return in the manner in which he
did on April 15, 2005, petitioner assumed the risk that the
document would be lost in the mail or otherwise not delivered in
due course to the IRS. See Walden v. Commissioner, 90 T.C. 947
(1988). Accordingly, we find that petitioner’s 2002 return,
which constitutes the only claim for refund made with respect to
the overpayment shown on that return, was filed on May 29, 2007,
the date that document was actually received by the IRS, rather
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than April 15, 2005, the date that the return was first mailed to
the IRS.
As noted above, the notice of deficiency for 2002 was mailed
to petitioner on February 20, 2007, a date more than 3 years
after petitioner’s 2002 return was due to be filed (with
extensions). Because no claim for the refund of the overpayment
of petitioner’s 2002 income tax had been made as of the date the
notice of deficiency for that year was mailed to him, and because
that overpayment was paid more than 2 years before that notice of
deficiency was mailed, we are without jurisdiction to determine
any overpayment with respect to petitioner’s 2002 Federal income
tax. See sec. 6512(b)(1), (3); Commissioner v. Lundy, 516 U.S.
235 (1996).

To reflect the foregoing and to give effect to the
Stipulation of Settled Issues, filed March 26, 2008,
Decision will be entered
under Rule 155.