* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

January 21, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT STEVEN HATCH,

Petitioner-Appellant,

v.

COMMISSIONER OF INTERNAL

REVENUE,

Respondent-Appellee.

No. 09-9002

(Tax Ct. No. 9073-08)

ORDER AND JUDGMENT*

Before MURPHY, McKAY, and BALDOCK, Circuit Judges.

Robert Steven Hatch, a prisoner at the Utah State Prison in Draper, Utah,

attempted to contest a determination of deficiency in his 2002 income taxes by

filing a petition with the United States Tax Court. The Tax Court granted the

Commissioner’s motion to dismiss for lack of jurisdiction on the ground that

Hatch did not file his petition within ninety days after the notice of deficiency

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was mailed. Appearing pro se, Hatch appeals. Our jurisdiction arises under

26 U.S.C. § 7482(a)(1), and we affirm.

I. Background

On January 7, 2008, the Commissioner, by certified mail, sent Hatch a

notice of deficiency for the 2002 tax year. Under 26 U.S.C. § 6213(a), Hatch had

ninety days from the mailing date of the deficiency notice, or in this case until

April 7, 2008, in which to file a petition with the Tax Court seeking a

redetermination of the deficiency. The Tax Court received Hatch’s petition on

April 17, 2008, in an envelope postmarked April 11, 2008, both dates being after

the expiration of the ninety-day filing period. The petition was filed by the Tax

Court as of the date of its receipt.

The Commissioner moved to dismiss, arguing that the petition was

untimely, thus depriving the Tax Court of jurisdiction. Citing Houston v. Lack,

487 U.S. 266 (1988) (setting forth the “prison mailbox rule”), Hatch objected to

the motion to dismiss arguing that he had delivered the petition to prison officials

on Sunday, April 6, 2008, for mailing, and that it was thus timely. In response,

the Commissioner noted various obvious falsehoods in Hatch’s pleadings and

observed that the evidence put forth by Hatch consisted solely of self-serving

statements. Because Hatch’s credibility had been put in issue, the Commissioner

further informed the Tax Court of Hatch’s criminal record.

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The Tax Court refused to resolve the dispute between the parties as to when

the petition was mailed, relying instead on this court’s precedent holding that the

ninety-day filing requirement is jurisdictional. See Foster v. Comm’r, 445 F.2d

799, 800 (10th Cir. 1971) (decided prior to Houston v. Lack and citing, with

approval, cases holding that the seeming inequities caused by defects in a prison

mailing system will not serve to excuse a late filing). The Tax Court concluded

that “as a matter of law . . . the petition was untimely filed” and dismissed the

case for lack of jurisdiction. Hatch v. CIR, Order of Dismissal for Lack of

Jurisdiction at 4. This appeal followed.

On appeal, Hatch argues that his petition should have been considered

timely through the application of the prison mailbox rule, under which the

timeliness would be determined by the date upon which he gave his petition to

prison authorities for mailing, or, according to him, on April 6, 2008. He further 

argues that the Commissioner ran afoul of Fed. R. Evid. 404 by including

evidence of Hatch’s convictions in his pleadings, and that this evidence

prejudiced the Tax Court. 

II. Discussion

We review factual findings made by the Tax Court for clear error; legal

conclusions are subject to de novo review. Estate of Holl v. Comm’r, 967 F.2d

1437, 1438 (10th Cir. 1992). Whether the Tax Court correctly dismissed a

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petition for lack of jurisdiction is a mixed question of law and fact. Anderson v.

Comm’r, 62 F.3d 1266, 1270 (10th Cir. 1995).

As mentioned, in order for the Tax Court to have jurisdiction over a

petition to redetermine a tax deficiency, the taxpayer must file a petition with the

Tax Court within ninety days of the mailing of the notice of deficiency. 

26 U.S.C. § 6213(a). If the petition is not timely filed, the matter must be

dismissed for lack of jurisdiction. Armstrong v. Comm’r, 15 F.3d. 970, 973 n.2

(10th Cir. 1994). In 1916, the Supreme Court noted that the word “file” had

never been defined by Congress, but that its etymology led to the conclusion that

a filing “is not complete until the document is delivered and received.” United

States v. Lombardo, 241 U.S. 73, 76 (1916). This principle is known as the

“physical delivery rule.” Under that rule, it is clear that Hatch’s petition was not

timely filed because it was not received by the IRS until April 17, 2008, well after

the ninety-day filing period had expired.

Hatch urges us to apply the prison mailbox rule as announced in Houston

where the Supreme Court ruled that a prison inmate’s notice of appeal in a habeas

corpus case was deemed filed at the time he delivered it to prison authorities for

forwarding to the court. 487 U.S. at 270, 276. However, whether the prison

mailbox rule is viable in light of the Tax Code’s own mailbox rule, 26 U.S.C.

§ 7502, is an issue this court has yet to decide. See Crook v. Comm’r, 173 F.

App’x 653, 657 (10th Cir. 2006) (noting that this court has yet to decide whether

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§ 7502 provides the exclusive method by which a timely mailing can be proven);

see also Price v. Philpot, 420 F.3d 1158, 1164 n.5 (10th Cir. 2005) (noting, in

dicta, that “where the ‘service’ or ‘filing’ language in an applicable statue or rule

establishes a specific regime to the contrary, Houston may not apply”). Hatch

does not argue on appeal that he complied with the mailing requirements of

§ 7502 so we will not consider that possibility.

Instead, for purposes of this appeal, we will assume, without deciding, that

the prisoner mailbox rule can apply in these circumstances. That assumption,

however, does not save Hatch’s petition. As the plaintiff, Hatch bears the burden

of proving facts supporting jurisdiction. See FDIC v. Oaklawn Apartments,

959 F.2d 170, 174 (10th Cir. 1992). That proof needs to be something more than

self-serving declarations. Sorrentino v. IRS, 383 F.3d 1187, 1191 (10th Cir.

2004); see also Crook, 173 F. App’x at 657 (applying Sorrentino in prisonmailbox case). The Supreme Court, itself, in Houston contemplated that disputes

over the date a prisoner handed his mail to prison authorities would be resolved

by reference to prison mail logs, described as “a straightforward inquiry.” 

Houston, 487 U.S. at 276. Hatch does not present any prison data showing that he

delivered his mail to prison authorities before the expiration of the ninety day

deadline. The evidence he does offer from the prison is inconclusive. The

handwritten date of April 6, 2008, appended to Hatch’s

prison-money-transfer-request form, is obviously in Hatch’s handwriting and

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proves nothing about when the petition was given to prison authorities for

mailing. Nor does the attestation of mailing attached to Hatch’s in forma

pauperis application and dated April 6, 2008, establish facts sufficient to bring the

petition within the safe harbor of the prison mailbox rule. 

Hatch’s contention that the Tax Court was biased against him because the

Commissioner wrongly informed the Court of his criminal history is without

merit. Hatch bases his argument on Fed. R. Evid. 404(b). The Tax Court’s

decision, however, was based on the fact that Hatch failed to sustain his burden to

establish subject matter jurisdiction by advancing evidence showing that his

petition was timely. The decision was not driven by resolution of disputed factual

allegations that could have been influenced by evidence regarding Hatch’s

character or credibility.

III. Conclusion

Finally, Hatch has filed a motion to proceed on appeal without prepayment

of costs or fees. Hatch, however, has failed to comply with 28 U.S.C.

§ 1915(a)(2) which requires that, in addition to the affidavit of indigence, a

prisoner seeking in forma pauperis status must also submit a certified copy of his

prison trust fund account statement for the six-month period immediately

preceding the filing of his notice of appeal. See Boling-Bey v. U.S. Parole

Comm’n, 559 F.3d 1149, 1153 (10th Cir. 2009). Accordingly, it is ORDERED

that, within twenty days of the filing date of this order, Hatch must either submit

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to this court “a certified copy of the trust fund account statement (or institutional

equivalent) for the prisoner for the 6-month period immediately preceding the

filing of the . . . notice of appeal,” 28 U.S.C. § 1915(a)(2), or pay his appellate

filing fee in full and withdraw his in forma pauperis motion. 

The February 24, 2009, decision of the United States Tax Court is

AFFIRMED.

Entered for the Court

Bobby R. Baldock

Circuit Judge

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