Lundy v. Commissioner

T.C. Memo. 1997-14

UNITED STATES TAX COURT

ROBERT T. LUNDY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13677-96. Filed January 8, 1997.

Eric W. Lundy, Rita A. Cavanagh, and Gerald A. Kafka,1 for

petitioner.

John R. Mikalchus and Jordan S. Musen, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Chief Special

Trial Judge Peter J. Panuthos pursuant to the provisions of

1
Attorneys Cavanagh and Kafka filed an entry of appearance
in this case on September 16, 1996, after respondent's motion to
dismiss for lack of jurisdiction was filed.
 -2-

section 7443A(b)(4) and Rules 180, 181, and 183.2 The Court

agrees with and adopts the opinion of the Special Trial Judge,

which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

PANUTHOS, Chief Special Trial Judge: This matter is before

the Court on respondent's Motion to Dismiss for Lack of

Jurisdiction. The issue for decision is whether petitioner filed

his petition for redetermination with the Court within the 90-day

period prescribed in section 6213(a).

Background

The material facts in this case are not in dispute.

On Friday, March 29, 1996, respondent mailed a notice of

deficiency to petitioner determining deficiencies in his Federal

income taxes in the amounts of $13,349, $21,445, $18,646, and

$19,165 for the taxable years 1991, 1992, 1993, and 1994,

respectively. The date that the notice of deficiency was mailed

to petitioner is evidenced by the postmark on the postal receipt

for certified mail (U.S. Postal Service Form 3877) that

respondent obtained at the time the notice of deficiency was

mailed. Petitioner received the notice of deficiency on

Saturday, March 30, 1996, as reflected on the domestic return

receipt (U.S. Postal Service Form 3811) signed by petitioner at

2
All section references are to the Internal Revenue Code
in effect for the years in issue, unless otherwise indicated.
All Rule references are to the Tax Court Rules of Practice and
Procedure.
 -3-

the time the notice was delivered. Although the notice of

deficiency was mailed on March 29, 1996, the cover page of the

notice of deficiency is incorrectly dated March 29, 1997.

The notice of deficiency states in pertinent part:

If you want to contest this deficiency in court
before making any payment, you have 90 days from the
above mailing date of this letter * * * to file a
petition with the United States Tax Court for a
redetermination of the deficiency. * * *

Petitioner did not retain the envelope containing the notice

of deficiency. There is no evidence in the record whether the

envelope containing the notice of deficiency bore a postmark.

Based upon the actual date of mailing, the 90-day period

prescribed in section 6213(a) for filing a timely petition with

the Court expired on Thursday, June 27, 1996, a day that was not

a legal holiday in the District of Columbia.

The petition was hand-delivered to the Court on Friday, June

28, 1996. The petition is dated June 28, 1996, and is signed by

petitioner's counsel, Eric W. Lundy. At the time the petition

was filed, petitioner resided at West Friendship, Maryland.

As indicated, respondent filed a Motion to Dismiss for Lack

of Jurisdiction asserting that the case should be dismissed on

the ground that the petition was not timely filed under section

6213(a). Petitioner filed an objection to respondent's motion

arguing that, due to the erroneous date of mailing on the notice

of deficiency, the 90-day period prescribed in section 6213(a)

for filing a petition with the Court should be computed from
 -4-

Saturday, March 30, 1996, the date that petitioner actually

received the notice of deficiency.

This case was called for hearing in Washington, D.C., at the

Court's motions session. Counsel for both parties appeared at

the hearing and presented argument on the pending motion.

Discussion

The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The

Court's jurisdiction to redetermine a deficiency depends upon the

issuance of a valid notice of deficiency and a timely filed

petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

Section 6212(a) expressly authorizes the Commissioner, after

determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail. It is sufficient for

jurisdictional purposes if the Commissioner mails the notice of

deficiency to the taxpayer's "last known address." Sec. 6212(b);

Frieling v. Commissioner, 81 T.C. 42, 52 (1983). If a notice of

deficiency is mailed to the taxpayer's last known address, actual

receipt of the notice is immaterial. King v. Commissioner, 857

F.2d 676, 679 (9th Cir. 1988), affg. 88 T.C. 1042 (1987); Yusko

v. Commissioner, 89 T.C. 806, 810 (1987); Frieling v.

Commissioner, supra at 52. The taxpayer, in turn, has 90 days

from the date the notice of deficiency is mailed (150 days if the
 -5-

notice is mailed to a taxpayer outside of the United States) to

file a petition in this Court for a redetermination of the

deficiency. Sec. 6213(a); Estate of Moffat v. Commissioner, 46

T.C. 499, 501 (1966).

There is no dispute that respondent mailed the notice of

deficiency to petitioner on March 29, 1996. If the 90-day period

for filing a petition with the Court is computed from the date

that respondent actually placed the notice of deficiency in the

mail, we would be compelled to dismiss this case for lack of

jurisdiction on the ground that the petition was hand-delivered

to the Court and filed 91 days after this date. The question to

be resolved in this case, however, is whether the erroneous date

appearing on the notice of deficiency (March 29, 1997, rather

than March 29, 1996) provides a basis for computing the 90-day

period from March 30, 1996--the date that petitioner actually

received the notice of deficiency.

Section 6213(a) provides in pertinent part:

(a) Time For Filing Petition and Restriction On
Assessment.--Within 90 days, or 150 days if the notice
is addressed to a person outside the United States,
after the notice of deficiency authorized in section
6212 is mailed * * *, the taxpayer may file a petition
with the Tax Court for a redetermination of the
deficiency. * * *

We have held that the date of mailing for purposes of computing

the 90-day filing period prescribed under section 6213(a)

generally is the date that the Commissioner actually places the

notice of deficiency in the mail. See Traxler v. Commissioner,
 -6-

61 T.C. 97, 99 (1973), modified 63 T.C. 534 (1975); Southern

California Loan Association v. Commissioner, 4 B.T.A. 223, 226

(1926); Hurst, Anthony & Watkins v. Commissioner, 1 B.T.A. 26, 27

(1924). Under normal circumstances, the Commissioner can

establish the date that a notice of deficiency is mailed by

relying on the postmark on U.S. Postal Service Form 3877. See

Coleman v. Commissioner, 94 T.C. 82, 90-91 (1990); Magazine v.

Commissioner, 89 T.C. 321, 324 (1987); Meader v. Commissioner,

T.C. Memo. 1982-288.

In extraordinary circumstances, we have recognized

exceptions to the general rule that the date of mailing is the

date that the Commissioner actually places the notice of

deficiency in the mail. One of the more comprehensive

discussions of the subject is set forth in our original opinion

in Traxler v. Commissioner, supra.

In Traxler, the taxpayers received a notice of deficiency

dated March 29, 1973, in an envelope that was date stamped March

31, 1973. The taxpayers mailed their petition to the Court 91

days after the date appearing on the notice of deficiency but 89

days after the date stamp appearing on the envelope bearing the

notice of deficiency. The Commissioner moved to dismiss the

petition for lack of jurisdiction on the ground that it was not

timely filed. The taxpayers objected to the Commissioner's

motion asserting that the date of mailing for purposes of section
 -7-

6213(a) should be the date stamped on the envelope in which the

notice of deficiency was mailed.

In attempting to define the term "is mailed" appearing in

section 6213(a), we first observed that:

The term itself is not precise, and the legislative
history shows only that such date is not the date of
actual receipt by the taxpayer. See Seidman's
Legislative History of Federal Income Tax Laws (1938-
1861) p.759; United Telephone Co., 1 B.T.A. 450 (1925).
[Traxler v. Commissioner, 61 T.C. at 98-99.]

See Metropolitan Community Service, Inc. v. Commissioner, T.C.

Memo. 1987-240.

In the absence of a statutory definition of the term "is

mailed", we focused on three dates that arguably could apply for

purposes of computing the 90-day filing period: (1) The date

appearing on the notice of deficiency; (2) the date that the

Commissioner delivered the notice of deficiency to the U.S.

Postal Service; and (3) the date of the postmark (if any)

appearing on the envelope bearing the notice of deficiency.

Traxler v. Commissioner, 61 T.C. at 99. Consistent with cases

such as Southern California Loan Association v. Commissioner,

supra, and Hurst, Anthony & Watkins v. Commissioner, supra, we

immediately eliminated from consideration the date appearing on

the notice of deficiency. We reasoned that "it seems best not to

make taxpayers dependent on the efficiency of the Internal

Revenue Service [in dating the notice of deficiency]". Traxler

v. Commissioner, 61 T.C. at 99.
 -8-

Turning our attention to the two remaining possibilities,

the date of actual mailing and the date stamped on the envelope

bearing the notice of deficiency, we observed:

Certainly in everyday parlance a postmark date is
regarded as the date of mailing. Normally if one is
asked when a letter "is mailed," he will look to the
postmark. That is obviously what the petitioners did
in this case. They saw the date "Mar. 31, 1973" on the
envelope. The best evidence of the postmark date is
the postmark itself. Without it, the next best
evidence is the Commissioner's receipt for certified
mail. This will not place any additional burden on the
Internal Revenue Service. If its receipt for certified
mail shows that more than 90 days has passed, the
normal challenge to jurisdiction will be forthcoming.
Only in cases where the postmark carries a later date
can the petitioner successfully resist. In no case
will the Commissioner's certified mail procedure need
to be changed. [Id. at 100.]

Based upon the assumption that the date stamp appearing on the

envelope bearing the notice of deficiency constituted a postmark,

we concluded that the taxpayers could reasonably have relied on

that date in computing the 90-day period for filing their

petition. Because the petition was mailed within 90 days of

March 31, 1973, we denied the Commissioner's motion to dismiss

for lack of jurisdiction.3 To the same effect, see Sandor v.

Commissioner, T.C. Memo. 1992-643; Bill Wright Toyota, Inc. v.

Commissioner, T.C. Memo. 1992-344.

3
However, in Traxler v. Commissioner, 63 T.C. 534 (1975),
we modified our earlier opinion, 61 T.C. 97 (1973), and granted
the Commissioner's motion to dismiss for lack of jurisdiction, in
light of evidence demonstrating that the date stamp in question
was a postal administrative control marking as opposed to a
postmark. See also Page v. Commissioner, T.C. Memo. 1994-180;
Toppin v. Commissioner, T.C. Memo. 1976-154.
 -9-

Notwithstanding the statement in Traxler v. Commissioner,

supra, to the contrary, we also have had occasion to hold that

the date appearing on the notice of deficiency is the date of

mailing for purposes of section 6213(a). In particular, in both

Loyd v. Commissioner, T.C. Memo. 1984-172, and Jones v.

Commissioner, T.C. Memo. 1984-171, the Commissioner placed the

notices of deficiency in the mail 3 days prior to the date

appearing on the notices of deficiency. The petitions were

mailed to the Court within 90 days of the date appearing on the

notices of deficiency but more than 90 days after the date that

the notices were actually mailed.

In denying the Commissioner's motions to dismiss for lack of

jurisdiction in Loyd v. Commissioner, supra, and Jones v.

Commissioner, supra, we concluded that the taxpayers (or their

counsel) had reasonably relied upon the erroneous date appearing

on the notices of deficiency as the date of mailing.

Consequently, to avoid frustrating the statutory provisions

designed to afford taxpayers an opportunity for prepayment review

of the Commissioner's deficiency determinations, we decided to

treat the notices of deficiency as if they were mailed on the

date appearing on the notices.4

4
But cf. Meader v. Commissioner, T.C. Memo. 1982-288 (the
date of mailing is the date appearing on U.S. Postal Service Form
3877 notwithstanding that the taxpayers may reasonably have
misread the date of mailing appearing on the notice of
deficiency).
 -10-

We conclude our survey of the case law in this area with a

brief mention of the line of cases involving undated notices of

deficiency. See Hurst, Anthony & Watkins v. Commissioner, 1

B.T.A. 26 (1924); and Casqueira v. Commissioner, T.C. Memo. 1981-

428. We have uniformly analyzed these cases by applying the

normal rule that the date of mailing is the date that the notice

of deficiency is actually placed in the mail. Cf. Donoghue v.

Commissioner, T.C. Memo. 1977-276 (90-day period computed from

actual date of mailing where notice of deficiency was actually

mailed March 18, 1976, but erroneously dated March 18, 1975).

Respondent contends that the date that the notice of

deficiency was actually mailed in this case is controlling for

purposes of computing the 90-day period for filing a petition

with the Court, and that it was unreasonable for petitioner to

rely on any other date in filing his petition. Relying on cases

such as Loyd v. Commissioner, supra, and Jones v. Commissioner,

supra, petitioner counters that it has been the Court's practice

to permit a taxpayer to use the best date available under the

circumstances in computing the 90-day period for filing a

petition with the Court. Because the notice of deficiency that

he received was incorrectly dated, petitioner contends that he

should be permitted to rely on the date that he actually received

the notice of deficiency (as the best date available to him) in

computing the 90-day period for filing a petition with the Court.
 -11-

Our survey of the case law in this area shows that the best

evidence of the date of mailing of a notice of deficiency is the

postmark, if there is one, on the envelope bearing the notice of

deficiency. See Traxler v. Commissioner, 61 T.C. at 99, modified

63 T.C. 534 (1975). In the absence of such a postmark, the date

of mailing of a notice of deficiency is the date that the

Commissioner places the notice of deficiency in the mail,

although an exception may be made where the taxpayer has been

misled or has reasonably relied to his detriment upon some later

date appearing on the deficiency notice itself. Petitioner does

not contend that he was misled or that he reasonably relied upon

another date of mailing. To the contrary, petitioner asserts

that, because of uncertainty as to the correct date of mailing,

he was entitled to treat the date that he received the notice of

deficiency as the date of mailing. Unfortunately for petitioner,

we have previously rejected the proposition that the date of

mailing contemplated in section 6213(a) can be equated with the

date that a taxpayer actually receives a notice of deficiency.

See Traxler v. Commissioner, 61 T.C. at 98-99. We see no reason

to abandon that position under the circumstances presented.5

5
Although the date that a taxpayer actually receives a
notice of deficiency generally is not treated as the date of
mailing under sec. 6213(a), some courts have used the date of
actual receipt to begin the running of the 90-day period for
timely filing a petition. These situations did not involve a
question of the date of mailing, but rather whether the
Commissioner sent the notice to the taxpayer's last known
(continued...)
 -12-

The notice of deficiency was delivered by the U.S. Postal

Service to petitioner on Saturday, March 30, 1996. Given that

the date of delivery is known, it follows that the notice of

deficiency must have been mailed at least one day prior to its

delivery to, and receipt by, petitioner. When petitioner

received the notice of deficiency on March 30, 1996 (delivered by

the U.S. Postal Service) it would have been unreasonable for him

to assume a mailing date later than March 29, 1996, the date

prior to delivery. In fact, March 29, 1996, was the actual date

of mailing, and petitioner has failed to allege or show that the

envelope containing the notice was not postmarked on that date.

The date on the face of the notice, being a full year later than

the date of mailing, was so patently the result of clerical error

that petitioner makes no claim of detrimental reliance. The fact

that petitioner's counsel, Eric W. Lundy, did not sign and hand-

deliver the petition to the Court until Friday June 28, 1996, 91

days after the mailing of the notice of deficiency, was not

(...continued)
address. See Gaw v. Commissioner, 45 F.3d 461, 468 (D.C. Cir.
1995), revg. T.C. Memo. 1993-379 (90-day filing period is
computed from date taxpayers actually received notice of
deficiency where the Commissioner failed to exercise due
diligence in determining the taxpayers' correct address); Powell
v. Commissioner, 958 F.2d 53, 57 (4th Cir. 1992) (90-day filing
period is computed from date taxpayers actually received the
Commissioner's final notice of intent to levy). In both Gaw and
Powell, the taxpayers did not receive the notice of deficiency in
time to file a petition within 90 days of its mailing. In the
instant case, petitioner received the notice of deficiency the
day after it was mailed.
 -13-

attributable to the erroneous date on the notice as in Loyd v.

Commissioner, supra, or Jones v. Commissioner, supra.

Accordingly, based on the particular circumstances of this

case, we conclude that the 90-day period for filing a petition

with the Court is computed from the actual mailing date of March

29, 1996. Because the petition was not filed within 90 days of

that date, we will grant respondent's motion to dismiss for lack

of jurisdiction.6

To reflect the foregoing,

An order will be entered

granting respondent's Motion to

Dismiss for Lack of Jurisdiction.

6
Although petitioner cannot pursue his case in this Court,
he is not without a remedy. In short, petitioner may pay the
tax, file a claim for refund with the Internal Revenue Service,
and if the claim is denied, sue for a refund in the Federal
District Court or the U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).