T.C. Memo. 1996-226
UNITED STATES TAX COURT
HERMAN W. BEACHAM, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11292-95. Filed May 20, 1996.
Marion F. Walker, for petitioner.
John F. Driscoll, for respondent.
MEMORANDUM OPINION
SCOTT, Judge: This case is before us on petitioner's motion
to reconsider our order of dismissal.
On August 4, 1995, respondent filed a motion to dismiss this
case for lack of jurisdiction on the ground that the petition was
not filed within the time prescribed by section 6213(a)1 or
1
All section references are to the Internal Revenue
Code, and all Rule references are to the Tax Court Rules of
section 7502. On August 18, 1995, petitioner filed a response to
respondent's motion, stating that the envelope in which the
petition was mailed reflected a mailing date from Birmingham,
Alabama, of June 15, 1995, which was within the 90-day period for
filing the petition. On September 7, 1995, this Court entered an
order of dismissal for lack of jurisdiction in this case on the
ground that the petition was not timely filed. The motion to
reconsider this order of dismissal was calendared for hearing at
the trial session of the Court commencing in Birmingham, Alabama,
on October 30, 1995, and pursuant to this order, the motion to
reconsider came on for hearing.
Petitioner, by agreement with respondent, offered several
affidavits and the testimony of two witnesses with respect to the
timeliness of the mailing and receipt of the petition in this
case.
The record here shows that on March 21, 1995, respondent
mailed to petitioner at his last known address by certified mail
a notice of deficiency in income tax and additions to tax for the
year ended December 31, 1992. The 90th day after the mailing of
the notice of deficiency was June 19, 1995, which was a Monday.
Petitioner's witnesses testified that on June 15, 1995, the
petition in this case was prepared by an assistant to
petitioner's attorney in this case and a summer law clerk in her
office. Sometime in the afternoon of June 15, petitioner's
Practice and Procedure, unless otherwise indicated.
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attorney returned to her office, reviewed and signed the
petition, and, because of the late hour, actually assisted the
assistant and the summer law clerk in making some necessary
photostatic copies to file with the petition. Her assistant and
summer law clerk put the petition signed by petitioner's attorney
in an envelope properly addressed to this Court, placed the
proper amount of metered postage on the envelope, and placed a
metered postmark of June 15, 1995, on the envelope. After this
was done, this envelope, together with other mail from the office
of petitioner's attorney that was to be sent out that date was
taken by petitioner's attorney's assistant, and he and
petitioner's attorney and petitioner's attorney's summer law
clerk all left the attorney's office together and went down to
the ground floor in the building in which the attorney's office
was located in Birmingham, Alabama. The assistant placed all of
the mail he had to mail for June 15, 1995, in a U.S. Postal
Service mailbox on the ground floor of the building.
Petitioner's attorney's summer law clerk and petitioner's
attorney saw the assistant place the mail in the mailbox sometime
between 5:30 and 6 p.m.
An envelope properly addressed to the U.S. Tax Court in
Washington, D.C., and mailed by regular mail from the Birmingham,
Alabama, area bearing a U.S. postmark with a date in June 1995
would ordinarily take 3 business days to reach the U.S. Tax
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Court. There were no circumstances or events known to or
recorded by the post office in Birmingham with respect to
disruption in the normal postal service between the post office
box in which petitioner's petition was mailed and Washington,
D.C., in June 1995.
An attorney practicing in Birmingham who very often mails
documents to Washington, D.C., primarily to the Department of
Justice, has found that the documents he mails from Birmingham,
Alabama, to Washington, D.C., very often take 5 business days to
arrive. When a weekend is involved it is not uncommon for
receipt of the document to be a week after the date it was
mailed.
It is petitioner's position that the evidence shows that the
envelope in which the petition in this case was mailed was placed
in a U.S. mailbox in Birmingham, Alabama, on June 15 and that its
receipt by the Court on June 26 should under the provisions of
section 7502, be sufficient to show that the petition was timely
filed.
Section 7502(a) provides that a document, including a
petition to be filed with the Tax Court, which is properly mailed
within the period prescribed for its filing and delivered to the
Tax Court after the expiration of such period will be deemed to
be filed on the date of the U.S. postmark stamped on the envelope
if the U.S. postmark date stamped on the envelope falls within
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the period prescribed for filing the document. With respect to
postmarks made by private postage meters, as was the case here,
section 7502(b) provides that section 7502 shall apply in the
case of postmarks not made by the U.S. Post Office only if and to
the extent provided by regulations prescribed by the Secretary or
his delegate. Section 301.7502-1(c)(1)(iii)(b), Proced. & Admin.
Regs., sets forth the conditions under which a private metered
postmark, which bears a date within the time allowed for filing a
document, will meet the requirements of section 7502 that the
postmark date is the filing date. These regulations provide that
if a document containing a private metered postmark is delivered
within the time ordinarily required for the delivery of a
document properly mailed on the date of the postmark, the date of
the private metered postmark will be considered the filing date
if it falls on the last day or before the last day allowed for
the filing of the document. This regulation further provides
that if the document is not delivered within the time ordinarily
required for delivery of such a document, the document will be
considered timely filed only if the person who is required to
file the document shows that the document was actually deposited
in the mail in time to be collected from the place of deposit on
or before the last day prescribed for filing, that the delay in
the delivery was attributable to delay in the transmission of the
mail, and the cause of such delay.
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Here, if we accept that petitioner has shown that the
document was actually deposited in the mail in time to be
collected from the place of deposit on or before the last day
prescribed for filing, we cannot under these regulations find
that the petition was timely mailed, since petitioner has not
shown that the delay in delivery was attributable to delay in the
transmission of the mail or, if any such delay occurred, the
reason therefor.
Petitioner's first argument is that the document deposited
in the mail was actually received in the ordinary time required
for documents to be received in Washington from Birmingham.
However, if we accept the June 15th postmark which was on the
envelope in which the petition was mailed, and the testimony of
petitioner's witnesses as showing June 15, 1995, as the date of
mailing of the petition, the petition should have been received
in Washington on Monday, June 19, 1995, the 90th day after the
mailing of the notice of deficiency. If Saturday and Sunday are
not counted in the time of normal receipt of mail, it would
normally have been received at least by June 20, 1995. We take
the Postal Service's statement of the normal time for delivery of
mail since, in our view, the experience of one lawyer primarily
with mail addressed to one Government agency, even though the
occurrence may be frequent, is not sufficient proof of the normal
time for delivery of mail. However, if the time experienced by
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the lawyer for mail delivery were used, delivery would have been
on June 22, 1995, but was not until June 26, 1995. Therefore,
clearly, delivery was not within the normal time for mailing if
in fact the envelope containing the petition was mailed on June
15, 1995, as petitioner contends.
Since the final date for filing the petition was not until
June 19, 1995, we specifically asked petitioner's attorney to
state whether petitioner was contending that receipt in the
normal time from June 19, 1995, would cause the filing date of
the petition to be timely. Petitioner made no argument in this
regard. However, the delivery date of June 26 was not within the
normal time for transmission of mail from Birmingham, Alabama, to
Washington, D.C., in June 1995, according to the experience of
the U.S. Postal Service, for a document mailed on June 19, 1995.
However, since the actual private metered postmark date was June
15 and the testimony is that June 15 was the date of mailing, it
would appear that normal receipt would be judged from that date.
It is certainly unfortunate that a petition purportedly
mailed 4 days before the 90th day after the mailing of the notice
of deficiency was not received by the Court until the 11th day
after its mailing. However, since petitioner used a private
metered postmark rather than taking the envelope to the post
office and having it postmarked, the regulations have not been
complied with in this case since petitioner has not shown that
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there was a delay in the transmission of the mail to which the
delay in delivery was attributable and since petitioner has not
shown any reason for the delay in the transmission of the mail if
there was such a delay. Petitioner in effect argues that since
there was a delay in the mail with respect to the envelope
containing his petition, the late receipt of the petition was due
to a delay in the transmission of the mail. We do not consider
petitioner's interpretation of the regulation the proper
interpretation. However, even if petitioner's interpretation
were proper, petitioner has failed to show the cause of the
delay.
This Court and other courts have upheld the regulations with
respect to when a private metered postmark will be accepted as a
filing date. Lindemood v. Commissioner, 566 F.2d 646 (9th Cir.
1977), affg. T.C. Memo. 1975-195; Fishman v. Commissioner, 51
T.C. 869, 872 (1969), affd. 420 F.2d 491 (2d Cir. 1970).
Based on the facts established by this record, the
regulations with respect to mail postmarked by a private postal
meter, and the cases of this and other Courts upholding the
regulations, we conclude that petitioner has failed to show any
reason why this case should not be dismissed for lack of
jurisdiction, and, therefore, we shall deny petitioner's motion
to reconsider our order of dismissal for lack of jurisdiction of
this case entered September 7, 1995.
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Petitioner's motion to reconsider
the order of dismissal will be denied.