In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-3838

ROBERT H. TILDEN,

Petitioner-Appellant,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

____________________

Appeal from the United States Tax Court.

No. 11089-15 — Robert N. Armen, Jr., Special Trial Judge.

____________________

ARGUED OCTOBER 6, 2016 — DECIDED JANUARY 13, 2017

____________________

Before WOOD, Chief Judge, and EASTERBROOK and 

MANION, Circuit Judges.

EASTERBROOK, Circuit Judge. Taxpayers living in the United 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 covering 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 dis-
2 No. 15-3838

missed it as untimely. The Commissioner has confessed error—properly so, we conclude.

Although §6213(a) requires petitions to 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 United 

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 staff purchased postage (both first-class mail and 

the supplement for certified delivery) from Stamps.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 from Stamps.com; it is dated April 21, 

2015, and a member 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 Service—

(i) The postmark so made must bear a legible date on or before the last date, or the last day of the period, prescribed for 

filing the document or making the payment; and

(ii) The document or payment must be received by the agency, 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. 15-3838 3

In the Tax Court the Commissioner accepted Tilden’s contention that the envelope had been delivered to the Postal 

Service on April 21 but invoked the next principal division, 

(B)(2):

If a document or payment described in paragraph (c)(1)(iii)(B)(1) 

is received after the time when a document or payment so 

mailed and so postmarked by the U.S. Postal Service would ordinarily be received, the document or payment is treated as having been received at the time when a document or payment so 

mailed and so postmarked would ordinarily be received if the 

person who is required to file the document or make the payment establishes—

(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 mail) by the U.S. Postal 

Service on or before the last date, or the last day of the period, prescribed for filing the document or making the payment;

(ii) That the delay in receiving the document or payment 

was due to a delay in the transmission 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 section.
4 No. 15-3838

The Tax Court conceded that the Postal Service had not 

placed a postmark on the envelope. It also observed (what is 

uncontested) that the envelope had been entered into the 

Postal Service’s tracking system for certified 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 raised 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 mistaken; abandoning its earlier position, the IRS asked the Tax 

Court to apply (B)(1) and deem both of its subsections satisfied. But the judge denied the motion, stating that because 

the 90-day limit in §6213(a) is jurisdictional the court is not 

obliged to accept the parties’ agreement.

At oral argument in this court the judges and counsel 

discussed whether any of §6213, §7502, or §301.7502–1 creates 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 subject to waiver and forfeiture. Compare United States v. Kwai 

Fun Wong, 135 S. Ct. 1625 (2015) (filing deadlines under the 

Federal Tort Claims 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 presumptively subject to equitable tolling, as truly jurisdictional 

deadlines are not), with John R. Sand & Gravel Co. v. United 
No. 15-3838 5

States, 552 U.S. 130 (2008) (deadline for filing suit in the 

Court of Federal Claims is jurisdictional), and Bowles v. Russell, 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 jurisdictional, but those decisions precede the Supreme Court’s recent cases or fail to analyze their significance. We deferred 

consideration of the appeal while the parties filed supplemental 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 filing deadlines for petitions seeking its review are jurisdictional under the Supreme Court’s current approach.

Kwai Fun Wong tells us that (a) filing deadlines are presumptively not jurisdictional, but (b) Congress can make 

them so, without necessarily using magic words such as “jurisdiction”. 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 others, such as ordering the Commissioner to redetermine the 

deficiency. For many decades the Tax Court and multiple 

courts of appeals have deemed §6213(a) as a whole to be a 

jurisdictional limit on the Tax Court’s adjudicatory competence. See, e.g., Patmon and Young Professional Corp. v. CIR, 55 

F.3d 216, 217 (6th Cir. 1995); Keado v. United States, 853 F.2d 
6 No. 15-3838

1209, 1212, 1218–19 (5th 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 that 

body of precedent, which (given John R. Sand & Gravel) places the Tax Court and the Court of Federal Claims, two Article I tribunals, on an equal footing. So we accept Guralnik’s 

conclusion and treat the statutory filing deadline as a jurisdictional one.

But it does not follow that the Tax Court 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); Railway 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 parties agree that the plaintiff is domiciled in Illinois and that 

the defendant is incorporated in Delaware and has its principal place of business in Texas, a district court need not, indeed 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 

Commissioner are colluding to expand its jurisdiction; to the 

contrary, the Commissioner initially denied that Tilden’s petition 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 acknowledged that all requirements of (B)(1) have been met—not only deposit on April 21 but also that certified mail often takes 

eight days to reach the Tax Court from Utah—the only basis 
No. 15-3838 7

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 envelope 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 whether there 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 chocolate” does not 

mean that a customer who orders chocolate must accept vanilla, just because the customer likes both. They are still different. Subsection (B)(3) does not make anything turn on a 

date as reliable as an official postmark. It makes the outcome 

turn on the date of an official postmark. If the Postal Service 

were to treat tracking data as a form of postmark, that might 

inform 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 particular. 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 at a facility in 

zip code 84199, approximately ten miles away from the Ar-
8 No. 15-3838

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 office 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 conclusive. 26 C.F.R. §301.7502–1(c)(3). Stoel Rives was taking an 

unnecessary 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.