Brian K. Bunton; Karen A. Bunton v. Commissioner of Internal Revenue

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN K. BUNTON; KAREN A.
BUNTON,
Petitioners-Appellants,
v.
COMMISSIONER OF INTERNAL
REVENUE,
Respondent-Appellee.
No. 22-70229
Tax Ct. No. 5770-19L
MEMORANDUM*
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).
FILED
JAN 11 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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