My colleague, Peter Reilly, CPA, has called me a “grumpy old man.” Well, if the cliché fits, I’ll wear it. And to show there’s no hard feeling on my part, I’ll provide lunch next week in his home town.

But if grumpy old man I may be, I’ll share a grump with y’all, my patient readers. Tax Court Judges often lament that wits, wags and wiseacres consume scarce judicial resources, burden IRS’ hard-laboring counsel, teletubbying away, striving from home to prepare and try cases remotely, and delaying the good-faith petitioner who, though maybe mistaken, honestly believes in her or his case. And maybe sometimes is right, and wins.

All this is true. But what price Alero O. Olomajeye, Docket No. 4034-19, filed 5/17/21? Alero isn’t an explicit defier or protester; no all-zeros return or Hendricksonian blather. Alero twice refuses to stip per Rule 91, so got defaulted. She moves to vacate the default, but never comes up with either argument or proof that the SNOD she got was wrong.

“Since the filing of the petition on February 25, 2019, Ms. Olomajeye has offered no evidence nor legal argument that credibly challenges respondent’s determinations. The petition argues that ‘there is applicable tax law’ and ‘other equitable reasons’ rendering the deficiency determination erroneous, however, Ms. Olomajeye never identifies the relevant tax law or equitable reasons in question.” Order, at p. 2.

“At other points in the course of this litigation, Ms. Olomajeye declined opportunities to present specific legal arguments or allege facts demonstrating respondent’s deficiency determination erroneous. Ms. Olomajeye submitted no pretrial memoranda nor exhibits for trial on the occasions such material was called for. Relatedly, on the two occasions Ms. Olomajeye’s case was called from the calendar, she did not proceed to try her case.” Order, at p. 3. I’ll pardon Judge Courtney D (“CD”) Jones the neologism “relatedly.”

Alero got a notice from Collections that tax had not been assessed, so claim she owes none. Wrong. “When a taxpayer files a petition in this Court, the IRS may not assess nor collect the deficiency at issue until after the decision of the Court becomes final. See sec. 6213(a). Thus, any deficiency amount would not yet appear assessed and due on Ms. Olomajeye’s account at this time, nor at the time of the referred to notice.” Order, at p. 4.

Alero claims she hadn’t time to get information about the early drawdown of her IRA. Except she had two years.

“Lastly, the Court indeed prohibited Ms. Olomajeye’s husband, Rick Johnson (Mr. Johnson), from advocating on Ms. Olomajeye’s behalf. Notwithstanding the executed power of attorney, Mr. Johnson is not admitted to practice before the Court pursuant to Rule 200. A power of attorney alone does not permit Mr. Johnson to represent Ms. Olomajeye in this Court. Even assuming arguendo that it does, we note that the executed power of attorney submitted to the Court does not appear to confer Mr. Johnson any authority over Ms. Olomajeye’s taxes.” Order, at p. 7. Alero didn’t initial the form POA at the “taxes” bloc, leading me to surmise that the POA is a State-specific form and not Form 2848.

So after two (count ’em, two) years of this, Judge CD Jones finds for IRS.

Before you ask “Where were the LITCs and the calendar call commandos?” I’ll let Judge CD Jones tell you, in a footnote.

“…the Court has encouraged Ms. Olomajeye to secure counsel at various points in this case. On two occasions in 2019 and once in 2020, the Court forwarded Ms. Olomajeye notices containing the contact information for low-income taxpayer clinics within the Legal Aid Society of Greater Cincinnati and the Center for Great Neighborhoods. At calendar call on March 29, 2021, Ms. Olomajeye was also advised of the availability of a volunteer attorney, and the Court arranged for her to meet with one such volunteer in a virtual breakout room. See Transcript of Proceedings on Mar. 29, 2021, 3:20-5:21 (index #32). While she was able to speak with a volunteer attorney, none were available to represent her at trial given the eleventh-hour nature of her request. Nonetheless, Ms. Olomajeye had ample time and opportunity to secure legal representation since filing her petition more than two years ago. Her failure to do so cannot be used as a backdoor to continuance.” Order, at p. 5, footnote 7.

And I haven’t chronicled here more than half of Alero’s maneuvering.

Judge, I most respectfully submit that in my opinion Alero is playing. While this petition is pending, IRS can’t collect. And Alero has stopped a shaved inch short of delay of the game. So without any available sanction, what is to prevent similar gaming?

I feel the judicial pain here. “Our well-publicized case load is attributable in part to taxpayers who fail to judiciously prosecute their cases. Preparing a case for trial also consumes this Court’s limited resources. Repetitive delays by a single taxpayer also hinders other taxpayers from having their cases timely adjudicated.” Order, at p. 4, footnote 5.

So just maybe possibly there might be a couple Section 6673 chops pour encourager les autres?

In my blogpost “No Comment – Redivivus,” 2/2/21, I promised I would follow Montgomery-Alabama River, LLC, Parkway South, LLC, Tax Matters Partner, 2021 T. C. Memo. 62, filed 5/17/21.

All y’all will recollect that my colleague KJ’s firm wanted to certify the question of whether the holder of an easement in gross had a real property interest (compensable in condemnation or a contract right (not so compensable) to the AL Supreme Court per that Court’s Rule 18. If not compensable under State law, the cutout of improvements in this conservation easement case wouldn’t matter, per Reg Section 1.170A-14(g)(6)(ii).

And pore l’il ole Tax Court is enough of a “court of the United States” to qualify for an AL Supreme Court certified answer.

Judge Albert G (“Scholar Al”) Lauber don’t need no AL Supreme Court to tell him what AL law says.

“In 1997 Alabama enacted its version of the Uniform Conservation Easement Act. That statute defines the interest of the donee of a conservation easement as the ‘nonpossessory interest of a holder in real property.’ Ala. Code sec. 35-18-1(1). Consistently with the statute, the Deed in this case explicitly grants the Foundation ‘a real property interest, immediately vested in Grantee at the time Grantor conveys this Conservation Easement to Grantee.’ Because Alabama law now treats conservation easements as property rights, the Foundation, as the holder of a conservation easement, would be entitled to compensation in an Alabama condemnation proceeding ‘in the same manner as any other [holder of a] property interest.’ See Ala. Code sec. 35-18-2(e).” 2021 T. C. Memo. 62, at pp. 10-11.

If KJ (or anybody else) wishes to comment for the record, I’ll be glad to hear from them.

Edited to add, 5/19/21: If anyone does want to comment, please use the “Comment” link at the foot hereof. That avoids all the data protection stuff, with which neither I nor the US gov’t can comply.

That’s Vincent J. Fumo, 2021 T. C. Memo. 61, filed 5/17/21; my readers will remember VJ from my blogposts “Good Job, Judge Lauber,” 10/14/16, “Good Job, Judge Lauber – Part Deux,” 2/28/20, and “Greenberg’s Express Stops in PA,” 5/7/20. Today’s episode features Judge Albert G (“Scholar Al”) Lauber examining VJ’s role in the 501(c)(3) community beautifier that ran out of his government office.

VJ was neither officer nor director nor member. His staffers (he was a PA State legislator) incorporated and served as nominal officers and directors. But without VJ, the 501(c)(3) wouldn’t exist (2021 T. C. Memo. 61, at p. 6). VJ called the shots and raised money. Since it did exist, VJ used to siphon off around $1.2 million for his farm and family. IRS wants to hit VJ with Section 4958 excise taxes thereon, as he is a “disqualified person” from receiving “excess benefits” from the 501(c)(3).

VJ claims a “disqualified peraon” is only an officer or director or member, and he was none of the above. Judge Scholar Al disposes of that by reading the Regs.

So IRS gets summary J on VJ’s disqualification, but not on what “excess benefits” VJ got from the 501(c)(3). That’s for the trial.

It was a time-worn saying in my young day in the Army that certain procedures and devices were “designed by geniuses to be used by idiots.” I suspect certain US Tax Court forms fall into that category.

I’ve often blogged pro se corporate miscues when it comes to filing the Ownership Disclosure Statement, Form 6 on the Tax Court menu. There are but three (count ’em, three) questions to be answered. The hapless pro ses get them wrong every time. The correct answers in 90% of the cases are “NONE.” The pro ses leave the spaces blank, when they bother filing at all. And it goes beyond the unlearned. See my blogpost “Even Good Accountants,” 3/25/19.

I suggested a remedy in that blogpost. So far, nothing.

Today I want to discuss the latest outbreak of defective documentation, the unadmitted Representative who signs a petition. And that brings in a pet peeve of mine, namely, viz., and to wit: a Power of Attorney is either a piece of paper or a collection of electrons. A Power of Attorney is not a human being, unless Form 2848 has been tattooed on that person’s body. And even then, the Form 2848 only appoints a Representative.

Here’s Ch J  Maurice B (“Mighty Mo”) Foley perpetuating the aforesaid pathetic fallacy, in Magda Browning, Docket No. 5748-21S, filed 5/17/21.

“The Petition filed to commence this case…was not properly executed in that it did not bear the original signature of petitioner or of a practitioner admitted and recognized to practice before the Tax Court, as required by the Tax Court Rules of Practice and Procedure. Rather, it appears that petitioner’s power of attorney who is not admitted to practice before this Court signed the petition for her. The United States Tax Court, which is separate and independent from the IRS, has certain requirements that must be met before an individual can be recognized as representing petitioners before the Court. Therefore, unlike the IRS, the Court does not recognize powers of attorneys and Mr. Browning will not be recognized as petitioner’s power of attorney in this case. The Court has prepared Q&A’s on the subject “Representing a Taxpayer Before the U.S. Tax Court. A copy of these Q&A’s are attached to this order. The Court also encourages practitioners and nonattorneys seeking admission to practice before the Court to consult “Guidance for Practitioners” on the Court’s website at http://www.ustaxcourt.gov/practitioners.html.” Order, at p. 1.

I’ll readily admit that Form 2 is crowded enough, so that hapless pro ses and their even more hapless Representatives won’t read the instructions. But perhaps a line stating that Powers of Attorney are worthless and only Tax Court admittees can sign if Petitioners themselves do not might alleviate Ch J Mighty Mo’s burden of admonishing these petitioners and tossing their defective petitions.

And speaking of tattooed Powers of Attorney, I got the idea from the fictional Albert Haddock, who wrote a check to Britain’s Inland Revenue on the side of a cow, in one of Sir A. P. Herbert’s Misleading Cases in the Common Law.

I gave Judge Christian N. Weiler the sobriquet “Speedy” last September, in my blogpost “Fastest Promotion on Record,” 9/10/20.

Although it takes him some little time, Judge Speedy straightens out IRS counsel in Otay Project, LP, Oriole Management LLC, Tax Matters Partner, Docket No. 6819-20, filed 5/14/21.

IRS tries to amend its answer two (count ’em, two) days after the Otays replied to their answer. Rule 41 says you need leave of court to serve an amended pleading after an adversary has responded to yours.

So IRS moves for leave to file a second amendment to its answer, but that fares no better.

“Respondent filed the first amendment to his answer on October 21, 2020, just two days after petitioner replied to respondent’s answer on October 19, 2020. Since the first amendment to answer was not filed within the time an amendment could have been filed as a matter of course, it may be filed only by leave of Court.  However, no motion for leave to file accompanied the first amendment to answer. Therefore, the filing of respondent’s first amendment to answer violates Rule 41.

“In respondent’s second amendment to answer, lodged with his motion for leave to file, respondent seeks to clarify his position regarding Exhibit B to the answer, clarify the theories supporting his position in the case, and cure any issue under Rule 41(a) relating to respondent’s first amendment, by deleting the text ‘and the substantial understatement penalties under I.R.C. §§ 6662(b)(2) and 6662(d)’ from paragraph 11(l) of respondent’s first amendment to answer.” Order, at p. 2.

Note that IRS is up against a well-known and well-regarded white shoe law firm.

The test for leave is whether the counterparty is ambushed, like eve-of-trial or after discovery closed, and the amended pleading does more than “make the case harder or more expensive for the other party since this is likely to occur in any amendment to the pleadings.” Order, at p. 2. (Citation omitted).

Here, trial is not scheduled, and apparently IRS tipped off the Otays in a December phoneathon. So no ambush.

But here’s the bonus: Judge Speedy gives us some insight into what he thinks is speedy. “Furthermore, the motion for leave was filed some 3 months after the original answer, which does not strike the Court as dilatory under the circumstances of this case.” Order, at p. 2.

A docket search shows a major joust over summary J, with electrons flying in all directions. Maybe there’s no need for discovery, so all they’re talking about is law, and the proposed amendments are only explanatory.

So straightening out the procedural part, Judge Speedy lets IRS “…file a motion for leave to file an amended and restated answer in accordance with Rule 41(a) reflecting the contentions made in the first and second proposed amendments to the answer.” Order, at p. 3.

And calls for another phoneathon next month, after IRS sends in the amended and restated answer. Maybe some head-banging might settle the case.

For whatever reason, IRS didn’t cross-move for summary J in Cahill; see my blogpost “Summary J – Tactics,” 6/18/18. Turns out IRS may have been wise, because there are lots of facts when split-dollar life insurance arrangements meet estate tax. And Judge Goeke digs through all of them, as we come to evaluating the tax and chops (40% style) in Estate of Clara M. Morrissette, Deceased, Kenneth Morrissette, Donald J. Morrissette, and John D. Morrissette, Personal Representatives, 2021 T. C. Memo. 60, filed 5/13/21.

I gave a tip of the battered Stetson to the late Clara’s trusty attorneys in my blogpost “Heir Splitting,” 4/13/16, which see for part of the backstory. Judge Goeke has more backstory, and it’s a family feud of the clessic (no misprint, that) species. Dad starts business with one used truck and builds a moving and storage empire covering 32 States, slave-drives his sons, two leave, one stays and gets a Prodigal Son complex when the two come back, the brothers hate each other, sue each other, the next generation wants to get into and keep the business but get shut out by the battling brothers, and Mommy wants the business to stay in the family.

Enter the split-dollar, whereby Mommy’s trust funds the life insurance policies that wind up with the sons’ dynasty trusts.

And Judge Goeke buys it all.

The desire to keep the business in the family, the need for liquidity for estate tax purposes (Mommy owned 75% of the stock, plus real estate and securities), the need to secure peace among the battling brothers, and provide the means for the next generation to buy into the business, get the split past Sections 2036, 2038, and 2703.

It takes 125 pages, but the Estate is leading at the sixteenth pole, when IRS’ valuation of the Estate’s share of the split comes up on the outside on Boss Hoss, and beats the Estate at the wire.

The Estate got $7.5 million, say the PersReps. IRS says $27 million. One of the Estate’s experts is off the mark, but the other and IRS’ expert agree on methodology. On the numbers, IRS wins, and the e-mail exchanges between the RA and his immediate supervisor satisfy Section 6751(b).

Trusty attorney warned the brothers that their valuation was too sweet, but they eschewed getting a legal opinion. No good faith defense to the chop, when they finish the Rule 155 beancount.

Is the SDLIA really dead? Maybe not.

That entrepreneurial gentleman Scott A. Blum, star of my blogpost “OPIS Finis,” 11/18/12, seems to have an inexhaustible appetite for tax dodges, as he’s back today with Scott A. Blum and Audrey R. Blum, Docket No. 5313-16, filed 5/12/21*. This time it’s BLIPS. I’ll let Judge Kathleen Kerrigan explain.

Scott was a partner in “… Democrat Strategic Investment fund LL (DSIF), which engaged in a tax shelter, Bond Linked Issue Premium Structure (BLIPS). DSIF was an entity taxable as a partnership pursuant to the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. No. 97-248, sec. 402(a). 96 Stat. at 648, which established unified procedures for the IRS examination of partnerships rather than a separate examination of each partner. See secs. 6221-6234.” Order, at p. 1.

“The BLIPS transaction resulted in a purported tax loess which petitioners claimed on their 1999 Federal income tax return.” Order, at p. 2. Tax loess? Judge, I thought you might be referring to Clay; see my blogpost “Indians Not Taxed – Redivivus,” 11/28/16.

Howbeit, IRS descended on the Democrats (please, this is a nonpolitical blog; any resemblance between my remarks here and any political organization or party is purely coincidental). The Democrats’ TMP elected to challenge the FPAA in USDCNDCA, at which IRS won on all counts, including without limiting in any wise the generality of the foregoing, the Section 6662(h) overvaluation chop.

So IRS hit Scott with a bunch SNODs (hi, Judge Holmes).

The SNODs seek the chops USDCNDCA affirmed, and Scott claims he doesn’t owe them.

We all know pursuing affected items in Tax Court is a nonstarter. Happily, the next generation of partnership dodges will all be sorted out in a single proceeding. Maybe.

“Deficiency procedures apply to affected items which require partner level determinations (other than penalties, additions to tax, and additional amounts that related to adjustments to partnership items. Sec. 6230(a)(2)(A). This is a deficiency case and therefore, penalties attributable to affected items determined at the partner-level are not before the Court.” Order, at p. 2. (Citation omitted).

So anything in Scott’s petition relating to the chops is stricken.

Scott, sometimes it’s better just to pay the tax. And stay away from the tax loess.

*Blum 5313-16 Order 5-10-21 – 12a0ebc7-1e54-4118-8a3c-9e79daacb35a

Before drilling down into Judge Pugh’s prose, I’d like to bestow a new Taishoff award, called the Chutzpahdika Punim, upon the trusty attorneys for BRC Operating Company LLC, Bluescape Resource Company LLC, Tax Matters Partner, and Bluescape Resources Company LLC, Bluescape Resources Investors LLC, Tax Matters Partner, twinned for trial and disposition in 2021 T. C. Memo. 59, filed 5/12/21. The reason for the award will become clear, even without the need for translation.

The Bluescapes passed through to their investors $160 million in mineral lease acquisition costs over two (count ’em, two) tax years. But The Bluescapes failed to heed the well-known admonition “Drill, Baby, drill!” Not only did they not drill anything but two test wells, which they stiped were irrelevant, they earned no income whatsoever. But they characterized the passed-throughs as costs of goods sold.

The Bluescapes try to dodge IRS’ motion for summary J disallowing this novel approach by claiming that it’s not section 461 economic performance (The Bluescapes are accrual basis), but Section 451 timing of receipt of gross income. Remember, the Sixteenth Amendment permits taxation of gross income, not gross receipts, lest Congress try to tax return of capital. That’s why COGS.

But before we get to timing, Judge Pugh has a basic question.

“Can Bluescape recognize costs of goods sold before it has any gross receipts from the sale of goods? In other words do we even reach the question of whether costs of goods sold are subject to the economic performance requirement when there are no gross receipts to offset yet?” 2021 T. C. Memo. 59, at p. 7.

IRS says ya gotta have goods sold to offset income therefrom with cost of the goods ya sold.

“Petitioners, framing respondent’s position as a ‘clear reflection of income’ argument, argue that ‘matching’ of cost of goods sold and gross receipts is not required. Thus, petitioners argue, they can recognize cost of goods sold as soon as they assume the obligations to drill the wells, giving rise to a loss that flows through to their partners.” 2021 T. C. Memo. 59, at p. 8.

Judge Pugh goes back to 1918 for the history of COGS. And the cases The Bluescapes cite only shows up the illogic of their position. Taxpayers won those cases by expensing against income items disallowed by IRS as COGS. But they had to have income against which to deduct or offset.

“…petitioners take the position that Bluescape’s estimated drilling costs are not deductible expenses but costs included in cost of good [sic] sold–that is, that the expenses are part of the cost of acquiring the natural gas. This position is how they claim to avoid the economic performance requirement. But it is also what requires them to wait until there are gross receipts against which to offset cost of goods sold.” 2021 T. C. Memo. 59, at pp.16-17.

Despite all The Bluescapes’ trusty attorneys’ gyrations, there is only one essential undisputed material fact.

“In sum, we conclude that to recover cost of goods sold a taxpayer generally must have some gross receipts from the sale of goods to offset. Because Bluescape had no gross receipts from the sale of natural gas for the years in issue, the estimated drilling costs reported as ‘cost of goods sold’ are not allowable as a cost of goods sold offset to gross receipts.” 2021 T. C. Memo. 59, at pp. 20-21.

“Inventive” isn’t the word.

The connection? Two men with horse problems. We now know about Medina Spirit and the fly in the ointment. And  now IRS Com’r Chuck loses, because his horse is scratched.

Stanley Battat and Zmira Battat, 2021 T. C. Memo. 57, filed 5/11/21, are back, and doing a lot better than they did at their last outing. See my blogpost “Necessity Knows No Law,” 2/6/17, for that one.

But IRS founders on the famous Boss Hoss, as Stan’s & Zmira’s trusty attorneys find the Revenue Agent’s Report, a/k/a RAR, a/k/a Form 4549, Income Tax Examination Changes (Unagreed and Excepted Agreed), plus the transmittal Letter 4121, were bestowed on Stan and Zmira before the RA got the Section 6751(b) immediate supervisor Boss Hoss sign-off.

Judge Colvin has the “somber reasoning and copious citation of precedent” handy.

“‘[The] term [“determination”] has an established meaning in the tax context and denotes a communication with a high degree of concreteness and formality’, Belair Woods, LLC v. Commissioner, 154 T.C. 1, 15 (2020), and denotes a ‘consequential moment’ of IRS action, Chai v. Commissioner, 851 F.3d 190, 220-221 (2d Cir. 2017), aff’g in part, rev’g in part T.C. Memo. 2015-42. The RAR states that it shows the “corrected” amount of petitioners’ tax and penalty liability. The RAR also includes a signature box for petitioners to consent to the assessment of those tax and penalty amounts.

“Providing the opportunity to consent to assessment of tax and penalty is a ‘consequential moment’ to a taxpayer and the Commissioner. See Beland v.Commissioner, 156 T.C. at __(slip op. at 10); Belair Woods v. Commissioner, 154 T.C. at 15. A signed, completed RAR sent with a Letter 4121 provides the requisite definiteness and formality to constitute an ‘initial determination’ for purposes of section 6751(b)(1). See Beland v. Commissioner, 156 T.C. at__ (slip op. at 13); Oropeza v. Commissioner, 155 T.C. at __ (slip op. at 17). The RAR includes the EA’s initial determination and, because no supervisor approval was provided before the RAR was issued to petitioners, the penalty did not meet the requirements of section 6751(b).” 2021 T. C. Memo. 57, at pp. 5-6. Note here “EA” means Examination Agent, not Enrolled Agent.

I need not add that I have blogged all the cases cited.

And as the Section 6662 chop proposed was $345K, the Boss Hoss was an expensive scratch for Chuck & Co.

It’s been almost nine (count ’em, nine) years since I last blogged a case of the accountant who mailed without proof. But today, William J. Spain and Idovia A. Spain, 2021 T. C. Memo. 58, filed 5/11/21, are in the same condition as Mr. Tesoriero, whose story I told in my blogpost “Wait Just a Minute, Mr. Postman – Part Deux,” 9/11/12.

Judge Albert G (“Scholar Al”) Lauber will explain.

“The IRS issued petitioners separate notices of determination dated September 10, 2019, sustaining the collection action. Tracking data from the U.S. Postal Service (USPS) show that these notices were mailed the following day and delivered to petitioners on September 16, 2019. The notices advised petitioners: ‘If you want to dispute this determination in court, you must file a petition with the United States Tax Court within 30 days from the date of this letter.’ See sec.6330(d)(1). Because the notices were mailed on September 11, 2019, the 30-day period expired on Friday, October 11, 2019.

“The Court received a petition from petitioners on October 21, 2019. That date was 40 days after the IRS issued the notices of determination. Petitioners disputed their underlying liability for 2014 and asked the Court to ‘plac[e] a hold on collections until the ** * [IRS] has had the opportunity to complete the audit reconsideration process and process the related amended income tax return.'” 2021 T. C. Memo. 58, at p.  3. (Citation omitted).

The petition, dated October 10, 2019, lacked original signatures. And Wm. and Indovia had gotten a SNOD for the years at issue, which they had not petitioned. The petition from the NITL which followed was contained in a properly postpaid envelope, with a postage machine stamp, but no USPS postmark. So IRS told Wm. and Indovia that they would move to toss unless Wm. and Indovia came up with “receipts or other documents” showing timely mailing.

“…petitioners’ accountant, Richard Shapiro, replied with a letter in which he stated that the petition had been signed by petitioners on October 10, 2019, and mailed that same day from his office in Scottsdale, Arizona. However, Mr. Shapiro supplied no ‘receipts or other documents’ as respondent had requested.” 2021 T. C. Memo. 58, at p. 4.

IRS moved to toss, and Mr. S sent Judge Scholar Al a copy of the letter he sent IRS, and asked “…that petitioners ‘be provided their opportunity to review their case through[the] appeals process.'” 2021 T. C. Memo. 58, at p. 5.

Minor problem: “Mr. Shapiro has not entered an appearance on behalf of petitioners, and petitioners did not sign his letter. See Rule 23(a)(3) (providing that paper filings ‘shall bear the original signature of the party’s counsel, or of the party personally if the party is self-represented’).” 2021 T. C. Memo. 58, at p. 4, footnote 2.

No mention whether or not Mr. S is admitted to practice before Tax Court. But here it doesn’t matter.

The Section 7502 mailed-is-filed regs deal with USPS and non-USPS postmarks, but not when a mailpiece has no postmark at all. Tax Court has generally (love that word!) allowed extrinsic evidence to show due mailing, but that has to be “convincing” evidence. And the petitioner has BoP.

“When confronted with illegible or missing postmarks, we have considered various types of extrinsic evidence. We have examined the envelope to see whether any markings indicate that the letter had been ‘misplaced, missent, or inadvertently lost or damaged.’ We have also considered testimony from the person claiming to have mailed the envelope. This testimony must be credible and convincing. We are not required to accept uncorroborated, self-serving statements ‘as gospel.’” 2021 T. C. Memo. 58, at p. 7. (Citations omitted).

The envelope is undamaged; no sign that it was misdelivered, misdirected, or misplaced. And all the evidence Judge Scholar Al has is Mr S’s letter.

No good.

“The regulations warn taxpayers and their advisers that ‘the sender who relies upon the applicability of section 7502 assumes the risk that the postmark will bear a date on or before the last date * * * prescribed for filing.’ Sec.301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs. To avoid this risk, the regulations advise the use of certified mail. Ibid. Had Mr. Shapiro used certified mail, he would have a receipt postmarked by the employee to whom he presented the envelope, and that postmark would be treated as the postmark date of the document. Id. subpara. (2). In this case petitioners have no persuasive evidence of timely mailing, and they have therefore failed to meet their burden to ‘establish affirmatively all facts giving rise to our jurisdiction.’” 2021 T. C. Memo. 58, at p. 9.