United States Tax Court

T.C. Summary Opinion 2024-16

MARK F. COBLE,

Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

__________

Docket No. 27760-21S. Filed August 12, 2024.

__________

Grace Allison, for petitioner. 

Steven I. Josephy, Gretchen W. Altenburger, and Michael T. Garrett, for 

respondent.

SUMMARY OPINION

GREAVES, Judge: This case was heard pursuant to the 

provisions of section 7463 of the Internal Revenue Code in effect when 

the petition was filed.1 Pursuant to section 7463(b), the decision to be 

entered is not reviewable by any other court, and this opinion shall not 

be treated as precedent for any other case.

Pending before the Court is respondent’s Motion to Dismiss for 

Lack of Jurisdiction (motion), filed March 28, 2022, and supplemented

on September 13, 2022, and July 10, 2023. Therein, respondent requests 

that this case be dismissed as it relates to tax year 2006 because the 

petition was filed more than 90 days after respondent mailed the notice 

of deficiency to petitioner. Respondent further requests that this case 

be dismissed as it relates to tax years 2007 and 2008 on the ground that 

1 Unless otherwise indicated, statutory references are to the Internal Revenue 

Code, Title 26 U.S.C., in effect at all relevant times.

Served 08/12/24
2

he did not issue a notice sufficient to confer jurisdiction on this Court. 

For the reasons set forth below, we will deny respondent’s motion with 

respect to tax year 2006. We will nevertheless dismiss this case on the 

ground that the 2006 notice of deficiency is invalid. We will grant 

respondent’s motion with respect to tax years 2007 and 2008.

Background

The following facts are based on the parties’ pleadings and motion 

papers, including attached declarations and exhibits, and, unless 

otherwise stated, are not disputed. Petitioner resided in New Mexico 

when he filed his petition with the Court.

Petitioner did not timely file federal tax returns for tax years 2006

through 2008. Pursuant to section 6020(b), respondent prepared a 

substitute for return (SFR) for petitioner’s 2006 tax year. On November 

26, 2012, respondent allegedly mailed petitioner a notice of deficiency 

based on this SFR at 318 1st Avenue S Apartment 401, Seattle, 

Washington 98104 (1st Avenue address). In the notice of deficiency 

respondent determined an income tax deficiency of $40,588, a section 

6651(a)(1) addition to tax of $1,190, and a section 6651(a)(2) addition to 

tax of $1,322.2 Petitioner did not file a petition with this Court within 

90 days of the Internal Revenue Service (IRS) allegedly mailing the 

notice, and respondent assessed the deficiency and additions to tax.

Thereafter, respondent issued to petitioner a notice of intent to levy.3 

The notice of intent to levy was returned to the IRS unclaimed, and 

respondent levied against petitioner’s Social Security benefits. On 

May 3, 2019, petitioner filed a tax return for his 2006 tax year. 

Respondent processed the return and abated the deficiency for 2006 to 

the amount listed on petitioner’s late filed return.

On January 2, 2020, petitioner filed a tax return for tax year 

2007, requesting a refund. On April 6, 2020, petitioner filed a tax return 

for tax year 2008, requesting a refund. The address listed on petitioner’s 

2006 through 2008 tax returns is 4736 Via Verde Court, Santa Fe, New 

Mexico 87507 (Via Verde Court address). Respondent represents that 

he did not take any action regarding petitioner’s income tax liabilities 

for tax years 2007 and 2008.

2 All dollar amounts are rounded to the nearest dollar.

3 Respondent did not attach a copy of this notice to his motion.
3

On August 9, 2021, petitioner filed a petition with this Court,4

indicating he sought review for tax years 2006, 2007, and 2008. On 

November 22, 2021, petitioner filed a First Amended Petition. Therein, 

petitioner indicated that he sought review of a notice of deficiency for 

tax year 2007. Petitioner referenced his initial petition and continued 

to make arguments related to tax years 2006, 2007, and 2008. On the 

basis of his petition and subsequent representations to the Court, we 

will construe his petition as relating to tax years 2006, 2007, and 2008. 

See Gray v. Commissioner, 138 T.C. 295, 298 (2012) (“All claims in a 

petition should be broadly construed so as to do substantial justice, and 

a petition filed by a pro se litigant should be liberally construed.”).

On March 28, 2022, respondent filed the motion. Therein, 

respondent argued that petitioner sought review for only tax year 2007

and respondent did not issue a notice of deficiency to petitioner for that 

tax year. Respondent further represented that after a diligent search of 

records, he had not made any other determination that would permit 

petitioner to invoke the jurisdiction of this Court.

On August 18, 2022, this Court ordered respondent to supplement 

his motion related to tax years 2006 and 2008. On September 13, 2022, 

respondent filed a First Supplement to Motion to Dismiss for Lack of 

Jurisdiction. Respondent attached to his motion a copy of the notice of 

deficiency for tax year 2006, dated November 26, 2012, which included 

a U.S. Postal Service (USPS) tracking number and was addressed to 

petitioner at the 1st Avenue address. Respondent argued that we should 

dismiss this case with respect to tax year 2006 because petitioner filed 

his petition after the 90-day deadline provided by section 6213(a). As 

for tax year 2008, respondent represented that after a diligent search of 

records, there was no indication that a notice of deficiency for tax year 

2008 was sent to petitioner, nor had respondent made any other 

determination sufficient to confer jurisdiction on this Court. On 

September 19, 2022, petitioner filed a response to respondent’s First 

Supplement, stating that he did not receive a notice of deficiency for tax 

year 2006 and that the notice was not mailed to his correct address.

On June 8, 2023, this Court ordered respondent to provide proof 

of mailing and the basis for determining petitioner’s last known address 

for the 2006 notice of deficiency. On July 10, 2023, respondent filed a

Second Supplement to Motion to Dismiss for Lack of Jurisdiction. 

4 Although petitioner acted pro se through most of these proceedings, he 

ultimately retained an attorney who filed an entry of appearance on May 31, 2024. 
4

Respondent did not attach USPS Form 3877, Firm Mailing Book For 

Accountable Mail, as evidence that he mailed the notice of deficiency to 

petitioner. Rather, respondent represented that the Form 3877 was sent 

to the Federal Records Center pursuant to normal procedures and that 

he did not have sufficient time to request the form. As proof of mailing, 

respondent attached the Correspondence Examination Automation 

Support (CEAS) transcript.5 Respondent indicated that the entry

number “24” on the CEAS transcript, dated November 26, 2012, 

establishes that a notice of deficiency was issued. As additional proof of 

mailing, respondent relies on the certified mailing number listed on the 

copy of the notice of deficiency.

As for petitioner’s last known address, respondent stated that a

NAMES transcript6 lists petitioner’s address at the time the 2006 notice 

of deficiency was mailed as the 1st Avenue address; however, 

respondent did not include a copy of the NAMES transcript. The CEAS 

transcript lists petitioner’s address as the Via Verde Court address.

Discussion

The Tax Court is a court of limited jurisdiction, and we may 

exercise our jurisdiction only to the extent authorized by Congress. See

§ 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Where this 

Court’s jurisdiction is duly challenged, as here, our jurisdiction must be 

affirmatively shown by the party seeking to invoke that jurisdiction. See 

David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), 

aff’d, 22 F. App’x 837 (9th Cir. 2001); Fehrs v. Commissioner, 65 T.C. 

346, 348 (1975). To meet this burden, the party “must establish 

affirmatively all facts giving rise to our jurisdiction.” David Dung Le, 

M.D., Inc., 114 T.C. at 270; Wheeler’s Peachtree Pharmacy, Inc. v. 

Commissioner, 35 T.C. 177, 180 (1960). Petitioner invoked our 

jurisdiction and therefore bears the burden of establishing jurisdiction.

5 The IRS CEAS system is a web-based application. See Internal Revenue 

Manual (IRM) 4.10.15.1 (Sept. 21, 2018). IRS employees use the CEAS system to assist 

in examining individual returns, among other purposes. See Walquist v. 

Commissioner, 152 T.C. 61, 63 (2019) (stating that CEAS is a software program to 

process cases); Bass v. Commissioner, T.C. Memo. 2023-41, at *6–7; IRM 4.10.15.2 

(Sept. 21, 2018). 

6 IRS employees use the Integrated Data Retrieval System to search for 

taxpayer name and address information. See IRM 2.3.60.2 (Jan. 1, 2016). Command 

code NAMES, among other tools, allows IRS employees to access the Name Search 

Facility (NSF), which contains this information. Id. NSF is updated daily, but 

multiple addresses may be listed for a given taxpayer. Id. 
5

In a case seeking redetermination of a deficiency, our jurisdiction 

depends upon the issuance of a valid notice of deficiency and the timely 

filing of a petition. See §§ 6212 and 6213; Sanders v. Commissioner, 

No. 15143-22, 161 T.C., slip op. at 8 (Nov. 2, 2023); Mulvania v. 

Commissioner, 81 T.C. 65, 67 (1983). Generally, a notice of deficiency 

will be deemed valid if it is properly mailed to the taxpayer’s last known 

address.7 See § 6212; Yusko v. Commissioner, 89 T.C. 806, 807 (1987).

The other jurisdictional requisite is that the petition be timely filed, that 

is, within 90 days after the Commissioner mailed the notice of 

deficiency. See § 6213(a); Sanders, 161 T.C., slip op. at 8.

The Commissioner must prove “proper mailing of the notice [of 

deficiency] by competent and persuasive evidence.” See Coleman v. 

Commissioner, 94 T.C. 82, 90–91 (1990). The act of proper mailing may 

be proved by documentary evidence of mailing or by habit evidence of 

the Commissioner’s mailing practices corroborated by testimony that 

those practices were followed with respect to the notice of deficiency at 

issue. See id. at 90; Magazine v. Commissioner, 89 T.C. 321, 324 (1987); 

Cataldo v. Commissioner, 60 T.C. 522, 524 (1973), aff’d per curiam, 499 

F.2d 550 (2d Cir. 1974). That testimony may be through submitting a 

sworn statement. See Hinojos v. Commissioner, T.C. Memo. 1996-397, 

slip op. at 4, 6. A Form 3877 represents documentary evidence of the 

date and fact of mailing and may also stand alone to establish proper 

mailing. See Coleman, 94 T.C. at 90; Magazine, 89 T.C. at 324. Exact 

compliance with the Form 3877 mailing procedures raises a 

presumption of official regularity that the IRS properly mailed the 

notice. See Coleman, 94 T.C. at 90–91. If he does not produce a complete

Form 3877, the Commissioner may nonetheless establish proper mailing 

through presenting “otherwise sufficient” evidence. See id. at 91; see 

also Rivas v. Commissioner, T.C. Memo. 2017-56, at *13 (stating that 

the presumption of proper mailing does not arise without presenting a 

“properly completed” Form 3877).

With respect to tax year 2006, it is not disputed that petitioner 

filed his petition more than 90 days after respondent allegedly mailed 

the notice of deficiency. However, petitioner argues that the notice of 

deficiency was not mailed, and if it was, it was not mailed to his last 

known address. Accordingly, we must dismiss this case as untimely 

7 As explained infra, the documentation respondent presented does not 

establish that the notice of deficiency was properly mailed. Therefore, we do not get to 

the issue of whether the notice of deficiency was not sent to petitioner’s last known 

address. 
6

under section 6213(a), unless we agree with petitioner that the notice 

was not properly mailed. See Monge v. Commissioner, 93 T.C. 22, 27

(1989). If we agree with petitioner, we must dismiss the case on the 

basis that the notice of deficiency is invalid. See id. Regardless of 

whether petitioner or respondent prevails, we lack jurisdiction to 

consider this case on its merits. See McKay v. Commissioner, 89 T.C. 

1063, 1067 (1987), aff’d, 886 F.2d 1237 (9th Cir. 1989). However, we 

have jurisdiction to determine the reason why we do not have 

jurisdiction. See Shelton v. Commissioner, 63 T.C. 193, 194–95 (1974).

Respondent has failed to carry his burden of establishing that the 

notice of deficiency was properly mailed. Respondent has not presented 

any testimony regarding the mailing procedures used with respect to 

this notice of deficiency—such as through submitting an affidavit.

Respondent must therefore establish proper mailing through presenting

documentary evidence. To that point, respondent has not produced

Form 3877 and cannot rely on the presumption of official regularity to 

establish proper mailing. As a result, respondent must present 

sufficient other evidence to establish proper mailing. To meet this 

threshold, respondent merely directs the Court to the tracking number 

stamped at the top of the notice of deficiency and an entry on the CEAS 

transcript. This type of documentary evidence falls short of what we 

have accepted in the past to show proper mailing in situations where the 

Commissioner does not present a Form 3877. See Garrett v. 

Commissioner, T.C. Memo. 2016-179, at *13–14 (concluding that the 

Commissioner established proper mailing by presenting a certified 

mailing list which referenced the notice of deficiency and the date of its

mailing and was also stamped and initialed by the Postmaster); Powers 

v. Commissioner, T.C. Memo. 2009-229, slip op. at 18–24 (finding that 

when no Form 3877 is presented, the Commissioner cannot establish 

proper mailing through documentation that does not explicitly reference 

the notice of deficiency). Because respondent failed to carry his burden 

to show that the notice of deficiency was properly mailed, we must 

dismiss this case with respect to tax year 2006.

With respect to tax years 2007 and 2008, petitioner did not attach 

a notice of deficiency for either year to his petition. In his motion

respondent asserts that he has conducted a diligent search of his records 

to determine whether he had issued a notice of deficiency to petitioner 

and on the basis of that search has determined that no notice has been 

issued. Respondent further asserts that on the basis of the foregoing 

search that he has not issued any other determination that would permit 
7

petitioner to invoke the jurisdiction of this Court. As a result, we must 

dismiss this case with respect to tax years 2007 and 2008.

With respect to tax year 2006, we will deny respondent’s motion; 

however, we will dismiss this case, sua sponte, on the ground that the 

2006 notice of deficiency is invalid. With respect to tax years 2007 and 

2008, we will grant respondent’s motion.

To reflect the foregoing, 

An order of dismissal for lack of jurisdiction will be entered.