Lindsey v. Commissioner, T.C. Memo. 2026-94 (Sept. 24, 2026)

In federal tax controversy practice, few procedural hurdles carry as much consequence as the mailing of a Statutory Notice of Deficiency (SNOD) under Internal Revenue Code (I.R.C.) § 6212 and the strict 90-day jurisdictional petition window mandated by I.R.C. § 6213(a). For tax practitioners representing clients before the Internal Revenue Service (IRS) and the United States Tax Court, understanding how the IRS establishes proper mailing—especially when administrative recordkeeping breaks down—is vital.

In Lindsey v. Commissioner, T.C. Memo. 2026-94 (Sept. 24, 2026), the Tax Court evaluated a case where the IRS conceded it could not rely on the statutory presumption of mailing due to an incomplete U.S. Postal Service (USPS) Form 3877. Nevertheless, the court held that the Commissioner carried his burden of proving proper mailing through cumulative, circumstantial evidence. Consequently, because the taxpayer filed her petition well beyond the 90-day statutory period, the Tax Court dismissed the case for lack of jurisdiction under controlling Seventh Circuit precedent. This article provides a technical analysis of the factual background, evidentiary rulings under the Federal Rules of Evidence, procedural tax law, application to facts, and the broader legal implications of the decision.

Factual Matrix and Administrative Background

The petitioner, Valarie Lindsey, an Illinois resident, timely filed her Forms 1040, U.S. Individual Income Tax Return, for the 2017 and 2018 taxable years. On these returns, Ms. Lindsey claimed itemized charitable contribution deductions of $35,700 for 2017 and $41,070 for 2018. In 2019, the IRS initiated an examination of both tax years. On October 21, 2019, the IRS issued a 30-day letter (Letter 950) proposing to disallow the charitable contribution deductions in full, substitute the standard deduction for both years, and assert accuracy-related penalties pursuant to I.R.C. § 6662(a).

Ms. Lindsey timely protested the examination findings to the IRS Independent Office of Appeals (Appeals). On February 14, 2020, Appeals Officer Michele Penry (AO Penry), based in Indianapolis, Indiana, was assigned to the case. Shortly thereafter, the onset of the COVID-19 pandemic severely disrupted IRS operations, leading to the physical closure of the Indianapolis office in March 2020. Despite the closure, on May 28, 2020, AO Penry prepared Form 3608 and requested a tax computation specialist to draft a Notice of Deficiency. The draft notice was uploaded into the Appeals Centralized Database System (ACDS). On June 4, 2020, AO Penry suspended the case due to office operating restrictions, noting in her Case Activity Record that the notice was “ready to be sent once office is open.”

On July 22, 2020, AO Penry reactivated the case file, completed Form 5402 (Appeals Transmittal and Case Memo) sustaining the proposed deficiencies and penalties, and released the case file on July 23, 2020, to the IRS Appeals Processing and Support (APS) facility in Detroit, Michigan.

At the Detroit APS facility, Appeals Tax Examining Technician LaTrese Lindsey (TE LaTrese)—who distinctly remembered the file because the taxpayer shared her surname—was tasked with preparing and issuing the deficiency notice. TE LaTrese prepared USPS Form 3877 (Firm Mailing Book for Accountable Mail) and USPS Form 3800 (Certified Mail Receipt) for certified mail article No. 7017 0660 0001 1692 6930 addressed to Ms. Lindsey’s conceded last known address. On August 10, 2020, TE LaTrese made a contemporaneous entry in ACDS reflecting that she had processed the Appeals-issued notice for the 2017 and 2018 tax years. Under IRS system design, entries in ACDS cannot be backdated or forward dated.

However, the USPS Form 3877 created by TE LaTrese contained significant procedural defects:

It listed only one piece of mail addressed to Ms. Lindsey but omitted an official USPS postmark stamp indicating the time and place of mailing.
It lacked the signature or initials of the receiving USPS employee.
It failed to state the verified count of mail pieces received by the postal service.

A Product Tracking and Reporting (PTR) report generated by the USPS confirmed that the certified mail envelope entered the mail stream at the USPS processing center in Pontiac, Michigan, on August 10, 2020. The PTR report showed that the package was “in transit to next facility” on August 16, 2020, but was never delivered. On February 3, 2021, the envelope was returned to an IRS P.O. Box in Detroit used for Freedom of Information Act (FOIA) correspondence. Neither AO Penry nor TE LaTrese was ever notified that the certified mailing had been returned undelivered.

On June 14, 2021—217 days after the 90-day petition window closed—the IRS assessed deficiencies of $8,163 for 2017 and $7,935 for 2018, alongside § 6662(a) accuracy-related penalties of $1,633 and $1,587, respectively. On October 20, 2022, Ms. Lindsey filed her petition in the Tax Court, which was 710 days after the statutory filing deadline would have expired had the notice been mailed on August 10, 2020.

Taxpayer Request for Relief and Parties’ Jurisdictional Positions

Both parties moved to dismiss the case for lack of jurisdiction, but on diametrically opposed statutory grounds:

Ms. Lindsey maintained that the Tax Court lacked jurisdiction because the Commissioner failed to prove by competent evidence that a valid Notice of Deficiency was actually issued and properly mailed to her. She argued that in the absence of a postmarked USPS Form 3877, a dated copy of the deficiency notice, or proof of receipt, no statutory notice existed. Alternatively, she asserted that if a notice was deemed mailed, the 90-day filing period under I.R.C. § 6213(a) should be equitably tolled due to non-delivery and systemic IRS recordkeeping failures.
The Commissioner argued that the Tax Court lacked jurisdiction because the petition was untimely filed. The Commissioner conceded that he was not entitled to the presumption of proper mailing under USPS Form 3877. However, the Commissioner asserted that he met his burden of proof through “otherwise sufficient evidence” demonstrating that a valid Notice of Deficiency was created and placed into the USPS mail stream on August 10, 2020.

Evidentiary Motions and Admissibility of Electronic Records

Prior to trial, Ms. Lindsey filed a Motion in Limine to exclude Exhibit 18-R, an ACDS Case Summary Card, on hearsay grounds under Rule 802 of the Federal Rules of Evidence (Fed. R. Evid.). She pointed out that the summary card was generated on December 20, 2023, by IRS trial counsel specifically for litigation, rather than created contemporaneously during the tax audit.

Judge Jones denied the taxpayer’s motion and admitted Exhibit 18-R under the business records exception of Fed. R. Evid. 803(6). Proceedings in the Tax Court are governed by the Federal Rules of Evidence pursuant to I.R.C. § 7453 and Tax Court Rule 143(a). Addressing the taxpayer’s objection regarding trial printouts, the court cited controlling Seventh Circuit precedent:

“Computer data compiled and presented in computer printouts prepared specifically for trial is admissible under [Fed. R. Evid.] 803(6), even though the printouts themselves are not kept in the ordinary course of business.” United States v. Fujii, 301 F.3d 535, 539 (7th Cir. 2002).

The court emphasized that in electronic database management, “the business record is the datum itself, not the format in which it is printed out for trial or other purposes.” United States v. Keck, 643 F.3d 789, 797 (10th Cir. 2011). Because AO Penry and TE LaTrese testified that ACDS database entries are made contemporaneously with official actions and cannot be backdated or forward dated, the court held that the requirements of Fed. R. Evid. 803(6)(A)–(E) were satisfied through qualified witness testimony under Fed. R. Evid. 803(6)(D).

Statutory Framework and Burden of Proof for Deficiency Notices

The Tax Court is a court of limited jurisdiction, exercising authority strictly as granted by Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985); Breman v. Commissioner, 66 T.C. 61, 66 (1976). In deficiency proceedings, the court’s jurisdiction hinges upon two statutory predicates: (1) the issuance of a valid notice of deficiency by the Commissioner under I.R.C. § 6212, and (2) the timely filing of a petition by the taxpayer under I.R.C. § 6213(a). Frieling v. Commissioner, 81 T.C. 42, 46 (1983).

Under I.R.C. § 6212(a) and (b)(1), the Commissioner is authorized to send a Notice of Deficiency to a taxpayer by certified or registered mail to the taxpayer’s last known address. Actual receipt of the notice by the taxpayer is not required to establish statutory compliance. Rappaport v. United States, 583 F.2d 298, 301 (7th Cir. 1978); Frieling, 81 T.C. at 52.

When the existence or mailing of a Notice of Deficiency is placed in dispute, the Commissioner bears the burden of establishing both elements by competent and persuasive evidence:

The existence of the Notice of Deficiency. Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), aff’d, 935 F.2d 1282 (3d Cir. 1991).
The exact date on which the notice was properly mailed. Coleman v. Commissioner, 94 T.C. 82, 90 (1990); Magazine v. Commissioner, 89 T.C. 321, 324 (1987); August v. Commissioner, 54 T.C. 1535, 1536 (1970).

As outlined by Judge Jones, the Commissioner can satisfy this evidentiary burden through one of two distinct evidentiary pathways:

The Presumption of Proper Mailing: If the Commissioner establishes the existence of the notice and produces a properly completed USPS Form 3877 showing compliance with standard IRS mailing procedures, the IRS is entitled to a legal presumption of proper mailing. Coleman, 94 T.C. at 91; Lander v. Commissioner, 154 T.C. 104, 118 (2020).
Otherwise Sufficient Evidence: In the absence of a properly completed Form 3877, the Commissioner may still prevail if he produces “otherwise sufficient” direct or circumstantial evidence of mailing. Coleman, 94 T.C. at 91; Keado v. United States, 853 F.2d 1209, 1214 (5th Cir. 1988); Epstein v. Commissioner, T.C. Memo. 1989-498.

Existence and Substantive Validity of the Notice of Deficiency

To meet substantive legal standards under I.R.C. § 7522(a), a Notice of Deficiency must “describe the basis for, and identify the amounts (if any) of, the tax due, interest, additional amounts, additions to the tax, and assessable penalties included in such notice.” The Internal Revenue Code prescribes no specific form for a notice. Jarvis v. Commissioner, 78 T.C. 646, 655 (1982). Jurisprudentially, a notice is valid if it:

“(1) fairly advise[s] the taxpayer that the Commissioner has, in fact, determined a deficiency and (2) specify[ies] the year and amount.” Dees v. Commissioner, 148 T.C. 1, 4 (2017) (quoting Foster v. Commissioner, 80 T.C. 34, 229–30 (1983)).

Ms. Lindsey argued that because the administrative file contained only undated copies of the Notice of Deficiency and lacked a postmarked Form 3877, no final notice ever existed. The Tax Court rejected this argument. Citing Gregory v. Commissioner, T.C. Memo. 2018-192, and Alamo v. Commissioner, T.C. Memo. 2017-215, aff’d, 751 F. App’x 583 (5th Cir. 2019), the court observed that retained copies, electronic database records, and administrative transmittal memos may be evaluated cumulatively to prove a notice’s existence.

The undated case file copies clearly specified Ms. Lindsey’s name, last known address, tax years 2017 and 2018, specific deficiency amounts ($8,163 and $7,935), and § 6662(a) penalties ($1,633 and $1,587). This was corroborated by AO Penry’s Form 5402 transmittal memo, ACDS draft uploads, and TE LaTrese’s certified mailing records.

The court also dismissed the taxpayer’s argument that the absence of a deficiency notice entry on her IRS account transcripts proved non-issuance. Agreeing with the Commissioner, Judge Jones noted that account transcripts are accounting logs rather than mailing logs, and the omission of an entry does not negate the creation or mailing of a notice when corroborated by other evidence. Frey v. Commissioner, T.C. Memo. 2004-87; Wiley v. United States, 1995 WL 863430 (S.D. Ohio 1995).

Proving Proper Mailing: Presumption of Regularity Versus Cumulative Evidence

Because the USPS Form 3877 lacked a postal postmark, postal employee signature, and piece count, the Commissioner conceded he could not claim the presumption of proper mailing. The critical question became whether the Commissioner’s circumstantial proof constituted “otherwise sufficient evidence” under Coleman v. Commissioner, 94 T.C. at 91.

Ms. Lindsey relied heavily on Pietanza v. Commissioner, 92 T.C. 729 (1989), where the Tax Court held that an incomplete Form 3877 and a draft notice were insufficient to prove mailing when the IRS could not produce a final notice and FOIA searches revealed no notice. Judge Jones explicitly distinguished Pietanza:

“Unlike Pietanza, this case does not rest on the bare existence of an incomplete USPS Form 3877. Rather, respondent produced copies of the Notice, Appeals and APS records showing that the case was transmitted for issuance, TE LaTrese’s testimony concerning her assignment and certified-mail practice, and the PTR report showing that the certified mail article entered the mail stream. Considered together, that evidence supports the inference that the August 10, 2020, Mailing contained the Notice.”

The court analyzed several key evidentiary links:

Habit Evidence: TE LaTrese testified that during her tenure at the Detroit APS facility, she sent only Notices of Deficiency via certified mail. Under Fed. R. Evid. 406, habit evidence carries significant probative weight when corroborating routine administrative practice. Coleman, 94 T.C. at 92; Cataldo v. Commissioner, 60 T.C. 522, 524 (1973).
Contemporaneous Database Entry: TE LaTrese’s ACDS entry on August 10, 2020—which could not be backdated or forward dated—automatically generated a 90-day petition calculation date of November 9, 2020.
USPS Tracking Data: The PTR report established that certified mail article No. 7017 0660 0001 1692 6930 entered the USPS mail stream at the Pontiac, Michigan processing center on August 10, 2020.
Subsequent Assessment: The IRS’s assessment on June 14, 2021, matched the exact deficiency and penalty figures set forth in the notice, demonstrating consistent administrative treatment.

Addressing the taxpayer’s arguments regarding administrative flaws—such as the IRS’s failure to follow returned-mail procedures after the envelope was returned undelivered in February 2021, and the delayed assessment 217 days after the petition date—Judge Jones held that post-mailing administrative missteps do not invalidate an otherwise proven initial mailing:

“No single item of evidence, standing alone, would necessarily carry respondent’s burden. But considered together, the facts establish by otherwise sufficient evidence that the August 10, 2020, Mailing contained the Notice and that respondent mailed the Notice to Ms. Lindsey at her last known address on that date.”

The Jurisdictional Nature of Section 6213(a) and the Circuit Split

Having established that the Notice of Deficiency was mailed on August 10, 2020, the statutory 90-day window under I.R.C. § 6213(a) expired on Monday, November 9, 2020 (since the 90th day, November 8, fell on a Sunday). Because Ms. Lindsey filed her petition on October 20, 2022—710 days late—she requested equitable tolling.

Under the Golsen rule (Golsen v. Commissioner, 54 T.C. 742, 757 (1970)), the Tax Court is bound to apply the law of the federal court of appeals to which an appeal would lie. Because Ms. Lindsey resided in Illinois, appeal lay exclusively in the U.S. Court of Appeals for the Seventh Circuit. Under Seventh Circuit precedent, the 90-day filing deadline in I.R.C. § 6213(a) is strictly jurisdictional, rendering equitable tolling unavailable. Tilden v. Commissioner, 846 F.3d 882, 886–87 (7th Cir. 2017).

Crucially, Judge Jones acknowledged a profound and widening Circuit Split regarding whether the I.R.C. § 6213(a) deadline is jurisdictional or a non-jurisdictional claims-processing rule subject to equitable tolling:

Jurisdictional Jurisdictions (Equitable Tolling Barred):
- Seventh Circuit: Tilden v. Commissioner, 846 F.3d 882, 886–87 (7th Cir. 2017).
- Ninth Circuit: Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092 (9th Cir. 2020); Seekamp v. Commissioner, 2026 WL 2199201, at *2 (9th Cir. July 30, 2026).
- U.S. Tax Court: Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022); Sanders v. Commissioner, 161 T.C. 112, 119–20 (2023) (reaffirming jurisdictional stance for cases appealable outside the Third Circuit).
Non-Jurisdictional Jurisdictions (Equitable Tolling Permitted):
- First Circuit: Kyick Holdings, LLC v. Commissioner, 2026 WL 2389513, at *15 (1st Cir. Aug. 17, 2026) (holding deadline non-jurisdictional, though denying tolling on facts).
- Third Circuit: Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023), cert. denied, 144 S. Ct. 2685 (2024).
- Second Circuit: Buller v. Commissioner, 160 F.4th 266 (2d Cir. 2025).
- Sixth Circuit: Oquendo v. Commissioner, 148 F.4th 820 (6th Cir. 2025).
- Eighth Circuit: Maniktala v. Commissioner, 186 F.4th 548, 554–55 (8th Cir. 2026).

Because Tilden remains binding precedent in the Seventh Circuit, the Tax Court held it lacked authority to apply equitable tolling, dismissing the case for lack of jurisdiction.

Court Conclusions and Post-Dismissal Remedies

The Tax Court concluded that the IRS successfully established proper mailing on August 10, 2020, and that Ms. Lindsey’s petition was untimely. However, dismissal from the Tax Court does not completely extinguish a taxpayer’s ability to challenge the underlying tax liability.

In footnote 9 of the opinion, Judge Jones outlined the post-dismissal remedy available under the tax code. A taxpayer who forfeits Tax Court jurisdiction by missing the 90-day petition window may pursue refund litigation under the full payment rule:

Pay the assessed tax, penalty, and interest liabilities in full. Flora v. United States, 362 U.S. 145, 177 (1960).
File a timely administrative claim for refund on Form 1040-X with the IRS pursuant to I.R.C. §§ 6511 and 7422(a).
If the refund claim is disallowed or not acted upon within six months, file a refund suit in the appropriate U.S. District Court or the U.S. Court of Federal Claims pursuant to I.R.C. § 6532(a).

For tax professionals, Lindsey v. Commissioner underscores three major takeaways:

Presumption vs. Cumulative Proof: An incomplete USPS Form 3877 destroys the statutory presumption of mailing, but the IRS can overcome this flaw through electronic audit trails (ACDS), postal tracking reports (PTR), and employee habit testimony.
Electronic Data as Business Records: Trial printouts of internal database logs (ACDS summary cards) are fully admissible under Fed. R. Evid. 803(6) as long as the underlying data entries were made contemporaneously in the ordinary course of business.
Geographic Forum Strategy: The statutory 90-day petition deadline is subject to a severe circuit split. Tax practitioners must evaluate client geographic residency under the Golsen rule to determine whether equitable tolling arguments are legally viable or barred.

Prepared with assistance from Gemini Notebook.