Brian Bunton v. Cir

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 11, 2024
• Docket: 22-70229
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 11 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIAN K. BUNTON; KAREN A. No. 22-70229 BUNTON, Tax Ct. No. 5770-19L Petitioners-Appellants,

v. MEMORANDUM*

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

Appeal from a Decision of the United States Tax Court

Submitted January 11, 2024**

Before: BENNETT, BADE, and COLLINS, Circuit Judges.

Petitioners-Appellants Brian and Karen Bunton (the “Buntons”) appeal pro

se from the Tax Court’s denial of a motion to reconsider or vacate its decision

sustaining the Internal Revenue Service’s (“IRS”) levy action to collect delinquent

federal income taxes. Because the Buntons’ notice of appeal was untimely, we

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismiss the appeal for lack of jurisdiction. See Havensight Cap. LLC v. Nike, Inc.,

891 F.3d 1167, 1174 (9th Cir. 2018) (dismissing untimely appeal for lack of

jurisdiction).

The Tax Court denied the Buntons’ motions on July 1, 2022. Therefore, the

Buntons had until September 29, 2022, to file their notice of appeal with the tax

court. See 26 U.S.C. § 7483 (“[N]otice of appeal [must be filed] with the clerk of

the Tax Court within 90 days after the decision of the Tax Court is entered.”);

Nordvik v. Comm’r, 67 F.3d 1489, 1493–94 (9th Cir. 1995) (explaining that the

time to file notice of appeal begins running “upon the date of decision on a timely

motion for reconsideration”).

The Buntons mailed their notice of appeal to the Tax Court via first-class

mail, but it was not delivered until October 13, 2022—two weeks past the

September 29, 2022, deadline. The Internal Revenue Code provides that if

delivery is made after the prescribed period, then “the date of the United States

postmark stamped on the cover” in which the document “is mailed shall be deemed

to be the date of delivery.” 26 U.S.C. § 7502(a)(1). Applying this rule, the notice

of appeal was untimely because the U.S. Postal Service postmark was dated

October 3, 2022. And while a separate postage label generated by the private

postage service provider Endicia is dated September 26, 2022, Who We Are,

https://www.endicia.com/about-endicia/ (last visited Jan. 9, 2024), it is the date on

2 the U.S. Postal Service postmark that controls. See 26 U.S.C. § 7502(b) (“This

section shall apply in the case of postmarks not made by the United States Postal

Service only if and to the extent provided by regulations prescribed by the

Secretary.”); Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(3) (providing that where there

is a non-U.S. postmark and a U.S. postmark, the non-U.S. postmark is

disregarded).

DISMISSED.