NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-1673

___________

ERIC D. CLARKSON,

Appellant

v.

COMMISSIONER OF INTERNAL REVENUE

____________________________________

On Appeal from the United States Tax Court

(Tax Court No. IRS-1: 27236-15)

Tax Court Judge: Honorable Michael B. Thornton

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

 November 16, 2016

Before: AMBRO, CHAGARES, and FUENTES, Circuit Judges

(Opinion filed: December 2, 2016)

_________

OPINION*

_________

FUENTES, Circuit Judge

Appellant Eric Clarkson petitioned in Tax Court to challenge an Internal Revenue 

Service (“IRS”) levy notice. On motion by the IRS, the Tax Court dismissed Clarkson’s 

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

petition, deciding that it was not timely filed and, thus, that the Court lacked jurisdiction 

over it. Although we depart slightly from the Tax Court’s reasoning, we will 

nevertheless affirm its judgment.

I.

At issue in this case is part of the statutory process that the IRS follows before it 

can create a levy or commence an action arising out of unpaid taxes. We begin with 

section 6212 of the Internal Revenue Code. Subsections (a) and (b)(1) require the IRS to 

create and send a notice of deficiency—sometimes called a “90-day letter,” and 

essentially an accounting of taxes owed for a given year—to the taxpayer’s “last known 

address” by certified or registered mail. Proper mailing of the notice of deficiency 

triggers the 90-day window of section 6213(a), during which the taxpayer can challenge 

the alleged deficiencies by petitioning in Tax Court and, at the same time, the IRS is 

prevented from making an assessment or collection on the tax.1 However, because the 

mailing of the notice is the triggering event, “receipt of the notice by the taxpayers is not 

required in order that the statutory filing period commence.”

2

 After the 90-day window 

closes, the IRS can pursue its assessment or levy, and the Tax Court loses jurisdiction to

 

1 See Robinson v. United States, 920 F.2d 1157, 1158 (3d Cir. 1990).

2 Boccuto v. Comm’r, 277 F.2d 549, 552 (3d Cir. 1960).
3

entertain a late petition from the taxpayer.3

II.

Clarkson filed his Tax Court petition in October 2015, shortly after receiving 

notice that the IRS intended to levy his wages based on unpaid tax for the years 2003 

through 2008. Among other arguments (which he later abandoned and which we need 

not discuss), Clarkson claimed that the IRS had not created and properly mailed to him

notices of deficiency for those years. He therefore argued that the levy notice and 

attempts to collect were invalid.

The IRS moved to dismiss on the basis that Clarkson’s petition, which was filed 

more than 90 days after the challenged notices of deficiency had been mailed, was 

untimely under section 6213(a). Accompanying the IRS’s motion was the declaration of 

its attorney, through which several exhibits were introduced into the record.

4

 The 

exhibits included notices of deficiency for the years in question and the corresponding 

certified mail forms—“Substitute PS Form 3877,” a privately generated bulk version of 

 

3 Edwards v. Comm’r, 791 F.3d 1, 5 (D.C. Cir. 2015) (“The tax court is a court of limited 

jurisdiction . . . and its jurisdiction is predicated on both the issuance of a notice of 

deficiency and the filing of a timely petition.”); Robinson, 920 F.2d at 1158, 1160. 

4 Clarkson now argues that it was improper for the Tax Court to consider the exhibits 

attached to the declaration, as the declaring attorney, who litigated the case in Tax Court, 

lacked personal knowledge of the facts contained in them. See Clarkson Br. 23. 

Although Clarkson, who proceeded pro se before the Tax Court, did refer to the exhibits 

as “hearsay,” see App’x 220, his appellate counsel concedes that the IRS attorney’s

personal knowledge was not raised below. To the extent we can even reach the 

unpreserved argument, see Rushing v. Kan. City S. Ry., 185 F.3d 496, 508 & n.11 (5th 

Cir. 1999), we see no error warranting reversal. 
4

the standard certified mail receipt—reflecting that the notices were sent to Clarkson’s 

address in Pemberton, New Jersey (the same address Clarkson was using on his Tax 

Court filings). Significantly, the final postmark reflected a date in early 2011, well more 

than 90 days before Clarkson’s 2015 Tax Court petition was filed. 

In his response to the IRS’s motion, Clarkson identified alleged deficiencies in the 

PS 3877 mail forms, such as missing entries for the name of the issuing IRS employee

and for the number of pieces received at the post office. These omissions, he claimed,

“prov[ed] that [the IRS] did not mail out the [notices] . . . as required by” section 6212.

5

Clarkson also said that he had tried to input the certified mail numbers into the online 

tracker at usps.com and had received either “not found” messages or information that 

clearly contradicted the dates and information on the IRS’s exhibits.6

The Tax Court sided with the IRS, granting its motion to dismiss. Deeming the 

postal forms “properly completed,” the Tax Court found that Clarkson had not met his 

burden to show that the IRS had failed to mail the notices of deficiency to his last known 

address.7 Since Clarkson’s petition was therefore filed far outside of the 90-day window, 

the Court dismissed for lack of jurisdiction.

III.

On appeal, Clarkson again trains his sights on the PS 3877 forms, arguing that an 

 

5 App’x 232–33. 

6 See App’x 231–32. 
5

improperly completed form fails to trigger a presumption of regularity in the IRS’s 

mailing practices. We have jurisdiction under 26 U.S.C. § 7482(a)(1) and review the Tax 

Court’s determination of its own subject matter jurisdiction de novo.

8

Although Clarkson’s argument is narrow and somewhat technical, it is not without 

some possible weight. The Tax Court has held elsewhere that “exact compliance with 

Postal Service Form 3877 mailing procedures raises a presumption of official regularity 

in favor of the Commissioner and is sufficient, absent evidence to the contrary, to 

establish that a notice of deficiency was properly mailed.”9 Assuming without deciding 

 

7 App’x 4. 

8 Sunoco Inc. v. Comm’r, 663 F.3d 181, 185 (3d Cir. 2011). We may affirm on any basis 

supported by the record. See ACM P’ship v. Comm’r, 157 F.3d 231, 249 n.33 (3d Cir. 

1998). The IRS’s motion was authorized by Tax Court Rules 13(c), 40, 50, and 53, 

which when taken together allow motions to dismiss for lack of jurisdiction due to the 

untimely filing of a Tax Court petition. The Tax Court appropriately allowed the parties 

to augment the record with exhibits and considered those exhibits in resolving the factual 

challenge to its jurisdiction. See Redman v. Comm’r, 820 F.2d 209, 211 (6th Cir. 1987)

(treating Tax Court motion to dismiss for lack of jurisdiction as analogous to factual 

jurisdictional challenge under Fed. R. Civ. P. 12(b)(1)); cf. Davis v. Wells Fargo, 824 

F.3d 333, 346, 349 (3d Cir. 2016) (discussing review of factual challenges to jurisdiction 

presented via Fed. R. Civ. P. 12(b)(1) motions). 

We note that the Tax Court would have lacked jurisdiction no matter who prevailed 

below. Had the Tax Court agreed with Clarkson, the IRS’s failure to properly mail the 

notices of deficiency would have deprived the Court of jurisdiction. See Delman v. 

Comm’r, 384 F.2d 929, 934 (3d Cir. 1967) (“It is true that unless a notice of deficiency is 

mailed to the taxpayer the Tax Court may not acquire jurisdiction over the cause.”). Such 

an outcome, however, would have also affected the IRS’s ability to assess and collect. 

Thus, the “consequences of dismissal [would] differ depending on the [Tax C]ourt’s 

reasoning.” Edwards, 791 F.3d at 6.

9 Hoyle v. Comm’r, 136 T.C. 463, 468 (2011) (emphasis added).
6

that the missing elements identified by Clarkson amount to something less than “exact 

compliance,”10 they call into question the Tax Court’s conclusion here that the substitute 

PS 3877 forms were “properly completed” and thus that the IRS is to be afforded its 

presumption of proper mailing.

Even without its presumption, however, the IRS can still prevail so long as it 

provides “otherwise sufficient” evidence of mailing.11 Broadly speaking, the more 

documentation presented by the IRS, the less likely that minor errors or omissions will 

defeat its proffer.

12

 And when “the existence of a notice of deficiency is not in dispute,”

as is the case here, all that is required is “evidence corroborating an actual timely mailing 

of the notice of deficiency.”

13

The relevant case law falls decisively in favor of the IRS, even in those instances 

where the omissions or errors were more egregious than those identified by Clarkson

here. In O’Rourke v. United States, for instance, the Second Circuit decided that a “torn, 

 

10 We observe that section 4.8.9.11.3 of the Internal Revenue Manual, which is available 

at https://www.irs.gov/irm/part4/irm_04-008-009-cont01.html (last visited Nov. 16, 

2016), appears to set forth requirements for Form 3877 completion that do not include the 

deficiencies identified by Clarkson. Other courts, though, have found that the failure of 

the PS 3877 form to reflect the number of pieces of mail received by the Post Office 

“render[s] [the form] improperly completed.” O’Rourke v. United States, 587 F.3d 537, 

541 (2d Cir. 2009) (per curiam). We will proceed under the assumption that it does. 

11 Welch v. United States, 678 F.3d 1371, 1377 (Fed. Cir. 2012). 

12 See id. at 1377–78 (collecting cases; among them, Coleman v. Comm’r, 94 T.C. 82, 

91–92 (1990)).

13 Id.
7

partial copy of the notice [of deficiency] and a certified mail log”—the former was 

unsigned and incomplete, and the latter failed to set forth the number of mailed items and 

did not contain a postal employee’s signature—passed the “otherwise sufficient” 

threshold.14 The Tenth Circuit followed O’Rourke in Cropper v. Commissioner, holding 

that the IRS had provided otherwise sufficient evidence when 1) the PS 3877 forms 

exhibited the same “minor defects” as those in O’Rourke, but otherwise showed the date 

they were submitted to the Postal Service for mailing; and 2) the IRS had produced 

copies of the relevant notices of deficiency.15 By contrast, in Knudson v. Commissioner, 

a Tax Court case cited by Clarkson, the petitioner overcame an IRS motion for summary 

judgment when, in addition to those “minor defects,” the “PS Form 3877 in the record 

relating to the notice of deficiency . . . d[id] not identify the listed items as notices of 

deficiency or the years to which the documents relate.”16 Knudson is thus plainly 

distinguishable. 

Here, all notices of deficiency appear to be accounted for. The PS 3877 omissions

identified by Clarkson are comparatively minor; each form bears the appropriate 

signature, corresponds with a notice of deficiency elsewhere in the record, and shows the 

date of mailing. Clarkson does not contend to the contrary. Accordingly, we have no 

 

14 O’Rourke, 587 F.3d at 540–42. 

15 Cropper v. Comm’r, 826 F.3d 1280, 1286 (10th Cir. 2016). We note, as did the IRS, 

that Cropper was brought by the same attorney who now represents Clarkson. 

16 Knudsen v. Comm’r, T.C. Memo 2015-69, 14–15 (2015).
8

trouble concluding that the IRS has produced otherwise sufficient evidence to prevail on 

its motion to dismiss.

17

IV.

In light of the above, we agree with the Tax Court that Clarkson’s petition was 

filed after the jurisdictional 90-day period had run. The Tax Court therefore lacked 

jurisdiction, and we will affirm its order dismissing Clarkson’s petition. 

 

17 Clarkson’s sole riposte involves his efforts to use usps.com to track each of the 

certified mail numbers. See Clarkson Br. 18–19. The IRS argues that USPS records are 

not kept in perpetuity. See IRS Br. 28–29. In any event, Clarkson’s exhibits would not 

affect our decision in this context.