T.C. Memo. 1996-561
UNITED STATES TAX COURT
BENJAMIN V. GOMEZ, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 23470-95. Filed December 30, 1996.
Bradford E. Henschel, for petitioner.
Guy Glaser, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge Larry L. Nameroff pursuant to section 7443A(b)and Rules
2
180, 181 and 183.1 The Court agrees with and adopts the opinion
of the Special Trial Judge, which is set forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
NAMEROFF, Special Trial Judge: This case is before us on
respondent's motion to dismiss for lack of jurisdiction. On
August 3, 1995, respondent sent petitioner a notice of deficiency
for the taxable year 1992 determining an income tax deficiency of
$11,294, and additions to tax under section 6651(a)(1) of $2,823,
and under section 6654(a) of $491. The time within which to file
a timely petition from that notice of deficiency expired on
November 1, 1995.
On November 13, 1995, the Court filed a petition with
respect to 1992. It is alleged therein that petitioner's mailing
address was 201 South Hazel, La Habra, California 90631. The
envelope in which the petition was mailed bore a private postage
meter stamp dated October 30, 1995, reflecting postage of 32
cents plus seven 32-cent postage stamps. The envelope contains a
series of markings which have been described as cancellation
stamps, indicating that the cancellation was done by a Los
Angeles Post Office on November 7, 1995.2
1
All section references are to the Internal Revenue Code
in effect for the years in issue. All Rule references are to the
Tax Court Rules of Practice and Procedure.
2
It is unclear whether these cancellation marks constitute
a postmark that would supersede the private postage meter stamp
and control the mailing date for purposes of sec. 7502. However,
in view of our disposition of respondent's motion, we need not
3
On August 24, 1995, respondent sent petitioner a notice of
deficiency for the taxable year 1993 determining an income tax
deficiency of $10,734, plus additions to tax under section
6651(a)(1) of $2,683.50, and under section 6654(a) of $449.67.
The 90-day period for timely filing a petition with respect to
the 1993 notice of deficiency expired on Wednesday, November 22,
1995. On December 7, 1995, petitioner filed with the Court an
amended petition purporting to place in issue the taxable year
1993. The Court did not retain the envelope in which this
amended petition was filed.
In his objection to respondent's motion to dismiss, and
again at the hearing in this matter, counsel for petitioner
alleged that the "incorrectly styled" amended petition was timely
filed on November 21, 1995, based upon a certificate of service
dated November 21, 1995, on which was also imprinted a private
postage meter stamp for zero postage dated November 21, 1995. In
a Supplemental Opposition to respondent's motion to dismiss for
lack of jurisdiction, petitioner contended, in part, that the
normal rules relating to the timeliness of petitions do not apply
because the Government was shut down on November 21, 1995, during
the 90-day period within which petitioner was to file his
petition, and, therefore, that day was a holiday in Washington,
D.C. In his Supplemental Opposition, counsel for petitioner
consider this question.
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requested that the Court sanction respondent in the amount of
$350. In response to petitioner's Supplemental Opposition,
counsel for respondent requested sanctions against petitioner's
counsel under section 6673(a)(2).
At the hearing held in this matter, no witnesses were
presented on behalf of petitioner, although petitioner's counsel
alleged he had timely mailed the petition and amended petition as
demonstrated by the postage meter marks on the original envelope
and on the certificate of service on the amended petition.
Respondent presented the testimony of Patricia Ann Morgan, a
witness from the U.S. Postal Service who testified that the
normal delivery time of mail from Los Angeles to Washington, D.C.
was 3 days.
The Court ordered the parties to file Memoranda of Points
and Authorities seriatim. Mr. Henschel, counsel for petitioner,
requested additional time to file his memorandum. The request
was granted, but no memorandum has been received from petitioner
or his counsel.
It is well established that this Court has jurisdiction only
if there has been a validly issued notice of deficiency and a
timely filed petition. Pyo v. Commissioner, 83 T.C. 626, 632
(1984); Keeton v. Commissioner, 74 T.C. 377, 379 (1980); Estate
of Moffat v. Commissioner, 46 T.C. 499 (1966). A petition for
redetermination of a deficiency ordinarily must be filed with
this Court within 90 days after the notice of deficiency is
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mailed to a taxpayer. Sec. 6213(a). The time provided for
filing a petition is jurisdictional and cannot be extended.
Failure to file within the prescribed period requires that the
petition be dismissed for lack of jurisdiction. Estate of
Rosenberg v. Commissioner, 73 T.C. 1014, 1016-1017 (1980); Estate
of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980); Stone v.
Commissioner, 73 T.C. 617, 618 (1980); Cassell v. Commissioner,
72 T.C. 313, 316-317 (1979); Estate of Moffat v. Commissioner,
supra at 501. A petition is filed on the date received. If,
however, a petition is received more than 90 days after the
mailing of the notice of deficiency, the petition is deemed to
have been filed when mailed if the requirements of section 7502
are satisfied.
Pursuant to section 7502(a), if the envelope or wrapper
containing the petition bears a timely postmark made by the U.S.
Postal Service, and the other requirements of section 7502 are
met, the postmark date will be deemed to be the filing date.
However, where the postmark is not made by the U.S. Postal
Service, as in the instant case, the timely mailing rule shall
apply "only if and to the extent provided by regulations
prescribed by the Secretary." Sec. 7502(b).
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Section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.,3
provides that privately metered mail qualifies for the timely
mailing rule of section 7502 if the postmark bears a timely date
and the document is received no later than the time ordinarily
required for the delivery of a document postmarked at the same
point of origin by the Postal Service on the last day for its
filing. If the document is not delivered within such time, the
taxpayer must establish, among other things, that the delay in
the delivery was due to delay in the transmission of mail and the
cause of the delay.
For 1992, the petition was received on November 13, 1995, 14
days after the alleged mailing on October 30, 1995. For 1993,
the amended petition was received on December 7, 1995, 16 days
after the alleged mailing on November 21, 1995. Inasmuch as
normal delivery time between Los Angeles and Washington, D.C. is
3 days, neither the petition nor the amended petition was
received within the ordinary time for delivery. Therefore, the
regulations require petitioner to establish: (1) The documents
were actually deposited in the mail on or before the last dates
prescribed for filing; (2) the delays in delivery were
attributable to delays in the transmission of the mail; and (3)
3
The regulations under section 7502(b) have been held to
be valid. Lindemood v. Commissioner, 566 F.2d 646, 648-649 (9th
Cir. 1977), affg. per curiam T.C. Memo. 1975-195; Fishman v.
Commissioner, 51 T.C. 869, 872-873 (1969), affd. per curiam 420
F.2d 491 (2d Cir. 1970).
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the cause of such delays. Lindemood v. Commissioner, 566 F.2d
646 (9th Cir. 1977), affg. per curiam T.C. Memo. 1975-195;
Fishman v. Commissioner, 51 T.C. 869, 872-873 (1969), affd. per
curiam 420 F.2d 491 (2d Cir. 1970); sec. 301.7502-(c)(1)(iii)(b),
Proced. & Admin. Regs.
Petitioner has failed to meet his burden of proof. Even if
we concluded that the petition and the amended petition were
timely deposited in the mails, petitioner has not established
that the delays in delivery were due to delays in the
transmission of the mail or the cause of such delays. Sec.
301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs. The alleged
closing of the Government did not affect the transmission of the
mail. Moreover, even if November 21, 1995, were a holiday in
Washington, D.C., it would not extend the 90-day period for the
1993 year beyond November 22, 1995. Thus, petitioner has not
established that the petition and the amended petition were
timely mailed under sections 6213(a) and 7502. See also Rule
41(a). Accordingly, this case must be dismissed for lack of
jurisdiction.
Petitioner may still be able to obtain a judicial hearing on
the merits of respondent's determinations in Federal District
Court or the United States Court of Federal Claims by following
the refund procedures.
In view of the circumstances involved in this case, we
decline to award petitioner any requested costs or to sanction
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petitioner's counsel under section 6673(a)(2) as requested by
respondent.
An order granting respondent's
motion and dismissing this case for
lack of jurisdiction will be entered.