IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________________

No. 00-60559 Summary Calendar _______________________________

DEBRA J. HORD, Petitioner-Appellant,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent-Appellee.

_________________________________________________

Appeal from the Decision of the United States Tax Court (6386-99) _________________________________________________ February 28, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Debra J. Hord appeals an Order of the Tax

Court granting the motion of Respondent-Appellee Commissioner of

Internal Revenue (“Commissioner”) to dismiss Hord’s petition for

lack of jurisdiction. The Order appealed from is based on the Tax

Court’s factual findings that (1) the Commissioner mailed a notice

of deficiency on December 29, 1998 for federal income tax due from

Petitioner for 1996, (2) the 90-day period specified in § 6213(a)

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. within which Hord could file a petition for redetermination in the

Tax Court expired March 29, 1999, being the last day that Hord

could have timely placed her petition in the United States mail,

and (3) Hord has failed to prove that her petition was mailed

before March 30, 1999. In turn, the Tax Court’s determination of

the third of these facts is based on its discrete findings that a

Postal Service machine stamp on the face of the envelope in which

Hord’s petition was transmitted is a postmark for purposes of §

7502(a)(1) I.R.C.; that the private postage meter mark reflecting

the date of March 29, 1999 is not a postmark and is thus

disregarded; that the partial date stamped by the Postal Service’s

machine on Hord’s envelope is March 30, 1999; and that, even in the

alternative that the partial date were not a postmark or were

deemed illegible and thus not determinative, the extrinsic evidence

proffered by Hord in the form of the uncorroborated testimony of

her attorney to the effect that the attorney personally delivered

the envelope containing the petition to the postal facility at

Houston’s Bush Intercontinental Airport at “approximately” 11:30

p.m. is insufficiently precise and insufficiently credible to

establish a timely mailing of the petition.

I.

We review the factual findings of the Tax Court for clear

error and the legal conclusions of that Court de novo. A

painstaking review of the record in this case, including an

examination of the exhibits —— particularly the envelope on which

2 the partial date is machine stamped —— as well as the comprehensive

opinion of the Tax Court and the arguments of counsel as set forth

in their appellate briefs, satisfies us that the factual findings

of the Tax Court are not clearly erroneous and its legal

conclusions based on those facts are correct.

II.

A. Date of Mailing of the Commissioner’s Notice of Deficiency

Hord’s first line of defense is a hypertechnical evidentiary

assertion that the Commissioner failed to lay a proper foundation

or prove authenticity of a certified true copy of the Form 3887

that reflects the mailing of a notice of deficiency to Hord for

1996 taxes on December 29, 1998. Hord was just one of thirteen

taxpayers, the mailing of whose notices of deficiencies was

reflected on that form. In addition to complaints about foundation

and authenticity, Hord’s evidentiary argument also focuses on the

redaction of the names of the other twelve taxpayers from the copy

of the Form 3887 before offering it into evidence. The obvious

purpose of the redaction of the other names was to comply with the

obligation of the Commissioner to refrain from publishing

privileged tax return information about those other twelve

taxpayers.

As noted by the Tax Court, counsel for Hord initially

indicated no objection to admitting the Form 3887, then had second

thoughts because counsel for the Commissioner had not produced a

live witness to support the authenticity of the document, but again

3 indicated no objection after counsel for the Commissioner offered

to produce a witness to authenticate the document if Hord insisted.

It was only in her post-trial brief that counsel for Hord argued

that the redactions kept the Form 3887 from being in original

condition and reiterated the complaint about failure to lay a

proper foundation or prove authenticity. The Tax Court correctly

ruled that Hord had waived or forfeited those objections. Under

the circumstances, the appellate argument of Hord’s counsel

regarding the date of mailing the notice of deficiency is not

merely specious but approaches sanctionable frivolousness. The Tax

Court neither abused its discretion in its evidentiary ruling nor

clearly erred in finding that the Commissioner mailed the notice of

deficiency to Hord on December 29, 1998.

B. Date of Mailing of Hord’s Petition

We are convinced that the fragmentary date reflected by the

machine stamp on Hord’s envelope is a shard of the figure 30 and

could not possibly be that of the figure 29. Moreover, even if we

assume arguendo that the machine stamp is not a postmark for

purposes of the applicable provisions of law, thereby opening the

door for extrinsic proof by Hord that her petition was mailed on

March 29, 1999, we cannot classify as clearly erroneous the Tax

Court’s conclusion that Hord has failed to bear her burden of

proof. Her evidence consists entirely of what the Tax Court called

the “implausible and self-serving” testimony of Hord’s lawyer, who

could not recall the exact time of her delivery of the envelope to

4 the postal facility at Bush Intercontinental Airport and whose

testimony the Tax Court found lacking in credibility. Such calls

are uniquely the province of the trial court which views the

witness’s demeanor. From our cold-record vantage point, we are in

no position to question the trial court’s determination of

credibility. With such testimony discarded, Hord’s evidence lacks

any probative value.

III.

In conclusion, the factual findings of the Tax Court on which

its legal conclusion is grounded are not clearly erroneous, and

that Court’s legal determinations are unassailable. We therefore

affirm the Tax Court’s grant of the Commissioner’s motion

dismissing Hord’s petition for redetermination for lack of

jurisdiction.

AFFIRMED.

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