T.C. Memo. 1996-478
UNITED STATES TAX COURT
ESTATE OF ANTONINO CAMPILONGO, DECEASED, RAFELINA MAGLIO,
EXECUTRIX, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 6122-95. Filed October 23, 1996.
Stephen C. Ryan and Andrew H. Wilson, for petitioner.
Cynthia K. Hustad and Elaine L. Sierra, for respondent.
MEMORANDUM OPINION
JACOBS, Judge: This matter is before the Court on
respondent's motion to dismiss for lack of jurisdiction.
Respondent contends that the petition was not filed within the 90-
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day period prescribed by section 6213(a).1
Respondent determined a deficiency in petitioner's Federal
estate tax of $108,648.89 and an addition to tax under section
6651(a) of $61,664.44. Antonino Campilongo died on January 29,
1990, while a resident of California. Rafelina Maglio, Antonino's
sister, is the executrix of her brother's estate; she was a
resident of California on the date the petition was filed. The
statutory notice of deficiency was mailed to Rafelina Maglio, as
executrix of the Estate of Antonino Campilongo, on January 19,
1995. The 90-day period provided by section 6213(a) for filing a
petition with this Court expired on Wednesday, April 19, 1995,
which was not a legal holiday in the District of Columbia.
The postage on the envelope containing the petition was made
by private postage meter and is dated April 21, 1995. The petition
was received by the Court's mailroom on April 24, 1995, and was
filed on that date.
Petitioner acknowledges that the envelope in which the Court
received the petition bears a legible postmark date which is
outside the 90-day period prescribed by section 6213(a). But
petitioner claims:
1) The petition was originally mailed on April 18, 1995, by
certified mail, return receipt requested;
1
All section references are to the Internal Revenue
Code, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
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2) an employee of petitioner's counsel's law firm affixed a
postage meter label to the envelope in which the petition was
placed; and
3) the postage meter label affixed to the envelope
containing the petition apparently became unattached in transit,
causing the post office to return the envelope to petitioner's
counsel's law firm on April 21, 1995, stamped "Returned for
Postage".
Petitioner wishes to introduce extrinsic evidence to support
its claims. Respondent contends that extrinsic evidence may not
properly be considered when it would contradict a legible postmark
on the envelope containing the petition.
In general, to be timely, a petition for redetermination of a
deficiency must be filed with this Court within 90 days after the
notice of deficiency is mailed. Sec. 6213(a). The Court lacks
jurisdiction if the petition is untimely filed. Pietanza v.
Commissioner, 92 T.C. 729, 735 (1989), affd. without published
opinion 935 F.2d 1282 (3d Cir. 1991). If a petition is received
after the 90-day period, it will be deemed filed on the date of the
United States postmark stamped on the envelope if the requirements
of section 7502 are satisfied.
Section 7502 does not apply unless a petition is timely
deposited in the United States mail with sufficient postage
prepaid. Sec. 7502(a)(2); sec. 301.7502-1(c)(1)(ii), Proced. &
Admin. Regs. When a private postage meter is used, the postmark
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date must be within the prescribed period for filing, and the
document must be received by the addressee within the normal
delivery period for an envelope postmarked by the United States
Post Office at the same point of origin. Sec. 301.7502-
1(c)(1)(iii)(B), Proced. & Admin. Regs. If a document is sent by
certified mail and the sender's receipt is postmarked by a postal
employee, the date on the receipt is treated as the postmark date
of the document. Sec. 301.7502-1(c)(2), Proced. & Admin. Regs.
As previously stated, the requirements of section 7502 and the
regulations must be satisfied in order to treat a petition as
timely filed when it reaches this Court by mail after the period
prescribed by section 6213(a). One of these requirements is that
a private postage meter postmark must bear a legible date that is
on or before the last date prescribed for filing the document. Sec.
301.7502-1(c)(1)(iii)(B), Proced. & Admin. Regs. In this case, the
April 21, 1995, postmark on petitioner's envelope is beyond the
required 90-day period for filing.
The envelope containing the petition must be timely mailed
with sufficient postage prepaid. Sec. 7502(a)(2); sec. 301.7502-
1(c)(1)(ii), Proced. & Admin. Regs. Although petitioner claims
that this requirement was met, a U.S. Postal Service stamp on the
envelope indicates that it was returned for postage. We shall not
speculate about whether proper postage was affixed to the envelope
when originally mailed, or whether any such postage became
unattached before or after the envelope was deposited in the mail.
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A second mailing of the petition bears a private postmeter date of
April 21, 1995.
In Wiese v Commissioner, 70 T.C. 712 (1978), the taxpayer
claimed that the date on a private postage meter was set
incorrectly, resulting in an untimely postmark that was 1 day later
than the actual date that the petition was mailed. The taxpayer
therein attempted to introduce extrinsic evidence to support his
claim. In declining to receive the taxpayer's proffer of extrinsic
evidence, we stated:
The general scheme of section 7502 and implementing
regulations is designed to avoid testimony as to date of
mailing in favor of tangible evidence in the form of an
official Government notation. As such, when a legible
Postal Service postmark appears on an envelope, no
evidence that the petition was mailed on some other day
will be allowed. Shipley v. Commissioner, 572 F.2d 212,
214 (9th Cir. 1977), affg. a Memorandum Opinion of this
Court; Sylvan v. Commissioner, 65 T.C. 548, 552 (1975);
sec. 301.7502-1(c)(1)(iii)(a), Proced. & Admin. Regs.
Where non-Postal Service postmarks are used, the
statute does permit extrinsic evidence other than the
tangible evidence of the postmark. In such cases, the
regulations require the timely private postage meter
postmark date to be independently corroborated by facts
beyond the taxpayer's control. * * * But the statute and
regulations clearly contemplate presentation of such
extrinsic evidence only when the private postage meter
postmark reflects a date on or before the 90th day after
mailing the notice of deficiency.
* * * * * * *
we believe our position maintains the obvious parity
sought by Congress between private postage meter and
Postal Service postmarks--that both be made on or before
the 90th day. We noted that where a legible Postal
Service postmark reflected a date after the 90th day, no
evidence could be presented to contradict it. We see no
reason why a taxpayer who has independent control over
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his postmark should fare any better, especially when the
regulations require both postmarks to be made on or
before the 90th day. * * *
Wiese v. Commissioner, supra at 714-715; see also Kahle v.
Commissioner, 88 T.C. 1063 (1987) (petition postmarked on 91st day
was untimely whether postmark made by private meter or U.S. Postal
Service; postmark date conclusive and extrinsic evidence not
admissible to contradict it).
In the instant case, the April 21, 1995, postmark on
petitioner's envelope is conclusive. Petitioner's claimed prior
attempt to mail the petition was unsuccessful and did not result in
the filing of the petition. Evidence of such attempted mailing is
inadmissible under Wiese and Kahle.
Petitioner relies on Sylvan v. Commissioner, 65 T.C. 548
(1975), in which we considered extrinsic evidence of the date of
mailing when the Post Office failed to postmark the envelope
containing taxpayer's petition. In that case, the envelope had
sufficient postage. It reached the Court within the normal period
following a timely mailing. The Court drew an analogy to cases
where the postmark on the envelope is illegible. See sec. 301-
7502-1(c)(iii)(A). In this case, petitioner's prior claimed
mailing did not reach the Court and was returned for postage.
Unlike Sylvan, the subsequent mailing bore a legible private
postmeter date beyond the 90-day period for filing. Sylvan is
therefore distinguishable on its facts.
Petitioner could have obtained a United States postmark on a
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certified mail receipt, but did not do so. Such postmark is
treated as the postmark date of the document, at least in cases
where the envelope reaches its destination. See sec. 301.7502-
1(c)(2) and (d), Proced. & Admin. Regs.
While we are sympathetic with petitioner's plight, because the
petition was filed outside the 90-day period prescribed by section
6213(a), we lack jurisdiction to hear petitioner's case.
Consequently, respondent's motion to dismiss for lack of
jurisdiction will be granted. Petitioner, however, is not without
a judicial remedy. Petitioner may pay the tax, file a claim for
refund with the Internal Revenue Service, and if the refund claim
is denied, sue for a refund in the appropriate Federal District
Court or the United States Court of Federal Claims.
To reflect the foregoing,
An order granting
respondent's motion will be
entered.