NOT PRECEDENTIAL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, CHAGARE S, 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 di smissed Clarkson’s

* This disposition is not an opinion of the full Cou rt 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 par t 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

s ection 6212 of the Internal Revenue Code . Subsections (a) and (b)(1) require the IRS to
create and send a n otice of d eficiency

— 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 o f 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, b ecause the mailing of the notice is the triggering event , “r eceipt of the notice by the taxpayers is not required in order that the statutory filing period commence. ” 2 A fter 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

entertai n 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 w ages based on unpaid tax for the years 2003 through 2008. Among other arguments (which he la ter abandoned and which we need
not discuss ) , Clarkson claimed that the IRS had not created and properly mailed to him

n otices of d eficiency for those years. He therefore argued that the levy notice and attempts to collect were invalid.
The IRS moved to d ismiss on the basis that Clarkson’s petition, which was filed more than 90 days after the challenged n otices of d eficiency had been mailed, was untimely under section 6213(a)

. Accompanying the IRS’s motion was the d eclaration of its attorney , through whic h several exhibits were introduced into the record

. 4 T he
exhibits included n otices of d eficiency 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 c ourt 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 T ax Court to consider the exhibits attached to the d eclaration, 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 t he 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 m ail receipt

— reflecting that the n otices were sent to Clarkson’s
add ress in Pem

berton, New Jersey (the same address Clarkson was using on his Tax Court filings)

. Significantly, t he final postmark reflected a date in early 2011, well more
than 90 days befor e 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 receive d at the post office. These omissions , he claimed, “prov[ed] that [the IRS] did not mail out the [ n otices] . . . 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 an d 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 n otices of d eficiency 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) a nd 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
Po stal 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 decidin g

7 App’x 4.
8 Sunoco Inc. v. Comm’r , 6 63 F.3d 1 81, 185 (3d Cir. 2011). We may affirm on any basis supported by the record. See ACM P ’sh ip 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 petiti on. 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 t o 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 affect ed 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 afforde d 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 m inor 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 rele vant 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. 1 6 , 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

part ial 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”
thres hold. 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 we re 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 m otion for summary judgm ent 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
d istinguishable.
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. According ly , we have no

14 O’Rourke , 587 F. 3d at 540

– 42.
15 Cropper v. Comm’r , 826 F.3d 1280, 128 6 (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 t he Tax Court that Clarkson’s petition was
filed after the jurisdictional 90

- day period had run . The Tax Cour t therefore lacked jurisdiction, and w e 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

. S ee IRS Br. 28

– 29. In any event, Clarkson’s exhibits would not affect our decision i n this context

.