### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 3838

R OBERT H. T ILDEN , Petitioner

- Appellant
,

v.

C OMMISSIONER OF I NTERNAL R EVENUE , Respondent

- Appellee

.

____________________ Appeal from the United States Tax Court

. No. 11089

- 15

— Robert N. Armen, Jr.
, Special Trial Judge

.

____________________
A RGUED O CTOBER 6, 2016

— D ECIDED J ANUARY 13, 2017

____________________

Before W OOD , Chief Judge , and E ASTERBROOK and M ANION , Circuit Judges

. E ASTERBROOK , Circuit Judge

. Taxpayers living in the Uni ted 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 c overing 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 di s-2 No. 15

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missed it as untimely. The Commissioner has confessed e rror

— properly so, we conclude. Although §62 13(a) requires petitions t o 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 Uni ted 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 s taf f purchased postage (both first

- class mail and the supplemen t for certified delivery) from S tamps.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 fro m S tamps.com; it is dated April 21, 2015, and a mem ber 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

– 1(c)(1) (iii) (B)(1), which reads:
If the postmark on the envelope is made other than by the U.S. Postal Ser vice

— (i) The postmark so made must bear a legible date on or b efore the last date, or the last day of the period, prescribed for filing the document or mak ing the payment; and
(ii) The document or payment must be received by the age ncy, 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 payment.No. 15

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In the Tax Court the Commissioner accepted Tilden’s co ntention that the envelope had been delivered to the Postal Service on April 21 but invoked the next principal divi sion, (B)(2) : If a document or payment described in paragraph (c)(1)(iii)(B)(1) is received after the ti me when a document or payment so mailed and so postmarked by the U.S. Postal Service would o rdinarily be received, the document or payment is treated as ha ving been received at the time when a document or payment so mailed and so postmarked would ordinaril y be received if the person who is required to file the document or make the pa yment establish es

— (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 m ail) by the U.S. Postal Service on or before the last date, or the last day of the per iod, prescribed for filing the document or making the pa yment; (ii) That the delay in receiving the document or payment was due to a delay in the transmis sion of the U.S. mail; and
(iii) The cause of the delay. By relying on (B)(2) the IRS was supposing that eight days (April 21 to 29) is more than the Postal Service ordinarily takes to deliver certified mail from Utah to Washington, D.C., which would knock out the use of (B)(1) as well. But the Tax Court concluded that both sides had picked the
wrong part of the regulation. It thought that the right part is (B)(3), which tells us:
If the envelope has a postmark made by the U.S. Postal Service in addition to a postmark not so made, the postmark that was not made by the U.S. Postal Service is disregarded, and whether the envelope was mailed in accordance with this paragraph (c)(1)(iii)(B) will be determined solely by applying the rule of paragraph (c)(1)(iii)(A) of this secti on.4 No. 15

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The Tax Court conceded that the Postal Service had not placed a postmark on the enve lope. It also observed (what is uncontested ) that the envelope had been en tered into the Postal Service’s tracking system for certi fied mail on April
23 , and the judge thought this just as good as a postmark, which meant that April 23 was the date of filing. That was two days late, so the court dismissed the petition. T.C. Memo 2015

– 188 (Sept. 22, 2015). Seeking reconsideration, Tilden observed that the parties had not r aised the possibility that tracking data must be treated as a “postmark made by the U.S. Postal Service”. The IRS joined Tilden in contending that the judge had been mi staken ; abandoning its earlier position, the IRS asked the Tax Court to apply (B)(1) and deem both of its subsections sati sfied . But the judge de nied the motion, stating that because the 90

- day limit in §6213( a) is jurisdic tional the court is not obliged to accept the parties’ agreement

. At oral argument in this court the judges and counsel d iscussed whether any of §6213, §7502, or §301.7502

– 1 cr eates a rule that is properly called “jurisdictional” under the Supreme Court’s current approach to distinguishing truly jurisdictional limits

— which a court must enforce even if not raised by the parties, whether or not the litigants agree that a filing is proper

— from case

- processing rules, which are su bject to waiver and forfeiture. Compare United Stat es v. Kwai Fun Wong
, 135 S. Ct. 1625 (2015) (filing deadlines under the Federal Tort Clai ms Act are not jurisdictional), and Irwin v. Department of Veterans Affairs , 498 U.S. 89 (1990) (all filing deadlines for suits against the United States are presum pti vely subject to equitable tolling, as truly jurisdictional deadlines are not), with John R. Sand & Gravel Co. v. UnitedNo. 15

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States , 552 U.S. 130 (2008) (deadline for filing suit in the Court of Federal Claims is jurisdictional), and Bowles v. Ru ssell , 551 U.S. 205 (2007 ) (deadline for filing a notice of appeal in civil litigation is jurisdictional) . The parties’ briefs in this
court cited many appellate decisions calling §6213 jurisdi ctional, but those decisions pre cede the Supreme Co urt’s r ecent cases or fail to analyze their significance

. We deferred considera tion of the appeal while the parties filed suppl emental memoranda on the issue . We have also considered the Tax Court’s en banc ruling in Guralnik v. CIR
, 146 T.C. No. 15 (June 2, 2016), which unanimously concludes that fi ling deadlines for petitions seeking its review are jurisdi ctional under the Su preme Court’s current approach. Kwai Fun Wong tells us that (a) filing deadlines are pr esumptively not jurisdictional, but (b) Congress can make them so, witho ut necessarily using magic words such as “j urisdiction”

. 135 S. Ct. at 1632. As it happens
, however, §6213(a) does use the magic word. It provides, among other things: “ The Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for a redetermination of the deficiency has been filed and then only in respect of the deficiency that is the subject of such petition. ” Tilden does not want either an injunction or a refund; he has yet to pay the assessed deficiencies. But it would be very hard to read §6213(a) as a whole to distinguish these remedies from ot hers, such as ordering the Commissioner to redetermine the deficiency. For many decades the Tax Court and multiple courts of a ppeals have deemed §6213(a) as a whole to be a jurisdictional limit on the Tax Court’s adjudicatory comp etence. See , e.g., Patmon and Young Professional Corp. v. CIR , 55 F.3d 216, 217 (6th Cir. 1995) ; Keado v. United States , 853 F.2d6 No. 15

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1209, 1212, 1218

– 19 (5 th Cir. 1988) ; Pugsley v. CIR , 749 F.2d 691, 692 (11th Cir. 1985) ; Andrews v. CIR , 563 F.2d 365, 366 (8th Cir. 1977) ; Foster v. CIR , 445 F.2d 799 , 800 (10th Cir. 1971 )

. We think that it would be imprudent to reject tha t body of precedent, which (given John R. Sand & Gravel ) pla ces the Tax Court and the Court of Federal Claims, two Art icle I tribu nals, on an equal footing. So we accept Guralnik ’s conclusion and treat the statutory filing deadline as a juri sdictional one.

But it does not follow that the Tax C ourt may disregard the parties’ agreement that a particular petition has been timely filed. True, litigants cannot stipulate to jurisdiction. But they may agree on the facts that determine jurisdiction. See, e.g., Kenosha v. Bruno , 412 U.S. 507 (1973); Rai lway Co. v. Ramsey , 89 U.S. (22 Wall.) 322, 323 (1875 ). For example, if in a suit under the diversity jurisdiction, 28 U.S.C. §1332, the pa rties agree that the plaintiff is domiciled in Illinois and that the defendant is incorporated in Delaware and has its pri ncipal place of business in Texas, a district court need not, i ndeed must not, look behind that agreement unless the judge suspects that the allegations are collusive. See 28 U.S.C. §1359 . The Tax Court did not suspect that Tilden and the Commission er are colluding to expand its jurisdiction; to the contrary, th e Commissioner initially denied that Tilden’s p etition was timely. So the judge did not have a sound reason to doubt that the envelope was indeed handed to the Postal Service on April 21, 2015 , as the Commissioner has conceded throughout. And now that the Commissioner has acknow ledged that all requirements of (B)(1) have been met

— not o nly deposit on April 21 but also that certified mail often takes eight days to reach the Tax Court from Utah

— th e only basisNo. 15

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for dismissing Tilden’s petition would be a legal conclusion that (B)(3) is the sole subsection entitled to a controlling role. On that subject we agree with the parties that the Tax Court was mistaken. Part (B)(3) of the regulation specifies what happens if an envelope has both a private postmark and a postmark from the U.S. Postal Service. Tilden’s env elope had only one postmark. The regulation does not ask whether a date that is not a “postmark” is as good as a postmark. It asks whethe r ther e are competing postmarks. To say “A is as good as B” is not remotely to show that A is B. “Vanilla ice cream is as good as choco late ” does not mean that a customer who orders chocolate must accept v anilla , just because the customer likes both . They are st ill di fferent. Subsection (B)(3) does no t make anything turn on a date as reliable as an official pos tmark. It makes the outcome turn on the date of an official post mark

. If the Postal Service
were to treat track ing data as a form of postmark, that might i nform our reading of the regulation, but we could not find any evidence that the Postal Service equates the two. For what it may be worth, we also doubt the Tax Court’s belief that the date an envelope enters the Postal Service’s tracking system is a sure indicator of the date the envelope was placed in the mail. The Postal Service does not say that it enters an item into its tracking system as soon as that item is received

— and the IRS concedes in this litigation that the Postal Service did not do so for Tilden’s petition, in partic ular. Recall that the Commissioner has acknowledged that the envelope was received by the Postal Service on April 21. It took two days for the Postal Service to enter the 20

- digit tracking number into its system, a step taken a t a facility in zip code 84199, approximately ten miles away from the A r-8 No. 15

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bor Lane post office (zip 84117) where the envelope was handed in. Although the taxpayer thus prevails on this appeal, we have to express astonishment that a law firm (Stoel Rives,
LLP , of Salt Lake City) would wait until the last possible day and then mail an envelope without an official postmark. A petition for review is not a complicated document; it could have been mailed with time to spare. And if the last day turned out to be the only possible day (perhaps the firm was not engaged by the client until the time had almost run), why use a private postmark when an official one would have prevented any controversy? A member of the firm’s staff could have walked the envelope to a post of fice and asked for hand cancellation. The regulation gives taxpayers another foolproof option by providing that the time stamp of a private delivery service, such as FedEx or UPS, is concl usive. 26 C.F.R. §301.7502

– 1(c)( 3). Stoel Rives was taking an

unnece ssa ry risk with Tilden’s money (and its own, in the malpractice claim sure to follow if we had agreed with the Tax Court) by waiting until the last day and then not getting an official postmark or using a delivery service. The judgment of the Tax Court is reversed, and the case is remanded for a decision on the merits.