The touchstone for jurisdictional basis, the key to the key to the Glasshouse door, is the mailing of the SND or NOD. This has been catechized to us all again and again. The USPS Form PS3877, describing item mailed, to whom and to where, and stamped and signed by USPS employee, thus far closes the case. In a deficiency case, game over, right?

Maybe not, say the trusty attorneys for D. Brent Scarbrough & Tina M. Scarbrough, Docket No. 9516-24, filed 6/13/25.

By my calculation, DB & Tina are 269 days late with their petition. They claim they didn’t get the SNDs (two for each as two years at issue) until a week before they petitioned. IRS replies “so what, we mailed ’em, you’re in 11 Cir, no equitable tolling.”

But trusty attorneys (whom I’ll call The Wigs) cite a couple cases (hi, Judge Holmes) that call this time-honored mantra into question.

“…petitioners insist that respondent has not met his obligation under section 6212 because alleged internal errors at the USPS resulted in non-delivery of the Notices, and respondent had knowledge of such and did not remedy the issue. Relying on Estate of McKaig v. Commissioner, 51 T.C. 331 (1968) (holding the notice insufficient when the USPS informed IRS that the notice of deficiency had not been delivered and taxpayer’s last known address was in question), petitioners argue that respondent had knowledge that delivery was not completed for at least three of the four Notices, and consequently, petitioners are entitled to equitable tolling from when they received the 2020 Notice on June 3, 2024. Notwithstanding, petitioners conceded that the certified mailing lists, attached to respondent’s motion, are properly completed and authentic.” Order, at pp. 2-3.

As usual, it’s in the footnotes.

The Wigs noted that USPS online tracking shows only one of the four (count ’em, four) SNDs were actually delivered, so IRS should have known something was up. Order, at p. 2, footnote 2.

“A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notices. The parties concede that the certified mailing lists for the years at issue attached to respondent’s Motion are properly completed and bear sufficient indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing documents as presumptive proof of its contents.” Order, at p. 4, footnote 3.

For their efforts, The Wigs get from Taishoff a “Good Try, Third Class.” From Judge Adam B. (“Sport”) Landy, they get a toss of the petition. No jurisdiction.