T.C. Memo. 1996-535
UNITED STATES TAX COURT
JACQUELINE SABLE, a.k.a. JACQUELINE SABAL, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 18478-96. Filed December 4, 1996.
Jacqueline Sable, pro se.
Alison W. Lehr, for respondent.
MEMORANDUM OPINION
RUWE, Judge: This matter is before the Court on
respondent's motion to dismiss for lack of jurisdiction. The
sole issue for decision is whether the petition in this case was
- 2 -
filed within the 90-day period prescribed by section 6213(a)1 as
augmented by section 7502 and the regulations thereunder.
The notice of deficiency in this case was mailed on May 24,
1996. The 90-day period under section 6213(a) for timely filing
a petition expired on Thursday, August 22, 1996. Petitioner's
petition was properly addressed and mailed2 to the Tax Court in a
large envelope bearing a privately metered postmark dated August
20, 1996. The postmark also indicates the origin of mailing as
Fort Lauderdale, Florida.3 The petition was received and filed
by the Court on August 26, 1996, 4 days beyond the period for
filing prescribed by section 6213(a).
Generally, the Court does not have jurisdiction over a case
unless the petition is filed within the 90 days allowed by
section 6213(a). Under section 7502, however, some relief is
provided in those cases where the petition is mailed within the
90-day period but received for filing after the expiration of
that period. Section 7502(a) provides that the date of the U.S.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code as amended.
2
The petition was mailed to the Court by certified mail.
However, this does not afford petitioner any relief, since the
regulation dealing with certified mail, sec. 301.7502-1(c)(2),
Proced. & Admin. Regs., applies only if the taxpayer has an
employee of the U.S. Postal Service postmark the sender's
receipt. There is no evidence that this was done here.
3
The petition lists petitioner's residence as Pompano Beach,
Florida.
- 3 -
postmark stamped on the envelope, in which such petition is
mailed, shall be deemed to be the date of delivery if certain
requirements are met. With respect to privately metered mail,
section 7502(b) states that the provisions of section 7502 will
apply "only if and to the extent provided by regulations
prescribed by the Secretary."
Regulations have been promulgated pursuant to section
7502(b) to govern cases involving privately metered mail.
Section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.,
provides in part:
(b) If the postmark on the envelope or wrapper is
made other than by the United States Post Office, (1)
the postmark so made must bear a date on or before the
last date, or the last day of the period, prescribed
for filing the document, and (2) the document must be
received by the agency, officer, or office with which
it is required to be filed not later than the time when
a document contained in an envelope or other
appropriate wrapper which is properly addressed and
mailed and sent by the same class of mail would
ordinarily be received if it were postmarked at the
same point of origin by the United States Post Office
on the last date, or the last day of the period,
prescribed for filing the document. * * *
Thus, section 7502 applies to privately metered mail if: (1) The
postmark bears a timely date, and (2) delivery occurs within the
time that it ordinarily takes for delivery of an envelope,
bearing a postmark of the U.S. Postal Service, properly mailed on
the last day prescribed for filing.
The petition in issue was mailed in an envelope bearing a
privately metered postmark with the timely date of August 20,
- 4 -
1996. Therefore, petitioner satisfies the first element of
section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.
However, respondent argues that petitioner does not satisfy the
second element of this section because a properly addressed
envelope "mailed by regular mail from the Boca Raton area and
bearing a United States postmark with a date of August 20, 1996
would have ordinarily been received on August 23, 1996 at the Tax
Court." Since the petition was not filed until August 26, 1996,
respondent concludes that it was not timely.
Respondent misinterprets the requirement of section
301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs. The regulation
clearly states that the ordinary period of time it takes for
delivery starts on the last day prescribed for filing, not, as
respondent contends, the date indicated on the privately metered
postmark.
The last day for filing the petition was August 22, 1996.
For purposes of deciding this motion, we accept respondent's
allegation that the ordinary delivery period for properly
addressed regular mail from the Boca Raton area to the Tax Court
is approximately 3 days.4 Therefore, had the petition been
4
Whether the petition was received by the Tax Court within
the time that a document mailed on the 90th day would have
ordinarily been received is purely a factual question. Stotter
v. Commissioner, 69 T.C. 896, 898 (1978). Although we apply
respondent's allegation of ordinary delivery time for purposes of
this case, we make no independent finding of fact regarding this
(continued...)
- 5 -
mailed on Thursday, August 22, 1996, 3 days later would have been
Sunday, August 25, 1996. Since there is no mail delivery to the
Tax Court on weekends, weekend mail deliveries are held until the
following Monday morning. Thus, the petition would not have
reached the Tax Court until Monday, August 26, 1996.
The petition in issue was received by the Court on August
26, 1996. Therefore, we find that the petition was timely filed
under section 7502 and the regulations thereunder, since it
reached the Court at the same time an envelope properly
addressed, mailed, and postmarked by the U.S. Postal Service on
August 22, 1996, ordinarily would have reached the Court.
McCurry v. Commissioner, T.C. Memo. 1981-68.
An appropriate order
will be issued.
4
(...continued)
matter.