T.C. Memo. 1997-167
UNITED STATES TAX COURT
JOHN B. MARKHAM, Petitioner v. COMMISSIONER
OF INTERNAL REVENUE, Respondent
Docket No. 23398-96. Filed April 7, 1997.
John B. Markham, pro se.
Stuart Spielman, for respondent.
MEMORANDUM OPINION
FAY, Judge: This case was assigned to Special Trial Judge
Robert N. Armen, Jr., pursuant to the provisions of section
7443A(b)(4) and Rules 180, 181, and 183.1 The Court agrees with
1
All section references are to the Internal Revenue Code,
as amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
and adopts the opinion of the Special Trial Judge, which is set
forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
ARMEN, Special Trial Judge: This matter is before the Court
on respondent's Motion to Dismiss for Lack of Jurisdiction, filed
December 23, 1996.
Background
Respondent mailed duplicate original notices of deficiency
(the notice of deficiency) to petitioner on July 26, 1996. In
the notice of deficiency, respondent determined that petitioner
is liable for additions to tax for the taxable years and in the
amounts as follows:
Additions to Tax
Penalty
Year Sec. 6653(b) Sec. 6651(f) Sec. 6663
1988 $4,472.25 -- --
1989 -- $10,953.75 --
1990 -- 15,451.50 --
1991 -- 11,513.25 --
1992 -- 6,417.00 --
1993 -- -- $828.75
1994 -- -- 2,616.00
Respondent mailed the notice of deficiency to petitioner at two
different addresses: (1) RD1, Box 254, Chenango Forks, New York
13746 (the Chenango Forks address), and (2) #06471052, P.O. Box
2000, Unit 1, Lewisburg Camp, Lewisburg, Pennsylvania 17837 (the
Lewisburg address). Respondent did not mail a copy of the notice
of deficiency to any authorized representative.
The notice of deficiency that was mailed to the Chenango
Forks address is undated. The record does not reveal whether the
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notice of deficiency that was mailed to the Lewisburg address was
also undated.2
Petitioner filed a petition for redetermination (the
petition) with the Court on October 30, 1996.3 The petition,
signed by petitioner, is dated October 25, 1996. The petition
states that petitioner received the notice of deficiency in
August 1996. Attached to the petition is a copy of the notice of
deficiency that was mailed to the Chenango Forks address.4
The petition arrived at the Court in an envelope bearing the
return address label of Kenneth P. Whiting, an attorney from
Binghamton, New York. The envelope bears a private postage meter
postmark label that appears to have been inadvertently cut in
half from top to bottom. The portion of the postmark date
appearing on the label that is missing is the month of mailing.
The portion of the postmark date that remains reads "25 '96",
thus indicating that the envelope was mailed in 1996 on the 25th
day of some month. We are also able to discern from the postmark
that the city of origin is Binghamton, New York. Considering all
of the circumstances, we are satisfied that the private postage
2
The copy of such notice that was retained by respondent in
her administrative file is dated July 26, 1996.
3
At the time that the petition was filed, petitioner was
incarcerated at the Lewisburg Prison Camp in Lewisburg,
Pennsylvania (the Lewisburg prison camp).
4
The record does not include a copy of the notice of
deficiency mailed to the Lewisburg address.
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meter postmark date on the envelope containing the petition is
October 25, 1996, the date that the petition was signed.
As indicated, on December 23, 1996, respondent filed a
Motion to Dismiss for Lack of Jurisdiction on the ground that the
petition was not filed within the 90-day period prescribed by
section 6213(a) or section 7502. Attached to respondent's motion
is a copy of Postal Service Form 3877, which shows that duplicate
notices of deficiency were mailed to petitioner on July 26, 1996.
On January 10, 1997, petitioner filed a reply to
respondent's motion asserting that the Commissioner bears the
burden of proving the date that a notice of deficiency is mailed.
Petitioner's reply further states:
When Petitioner actually received the notice the prison
was in a complete shut-down. Circumstances that
Petitioner could not control. As soon as possible,
Petitioner retained a lawyer for the purpose of
formulating a petition. The lawyer [formulated] the
petition and mailed it to the Petitioner for approval
and signature. Again, the mail was not delivered
timely and a lot of time was wasted, waiting on the
prison personnel. After reading the petition and
signing it, there was more delays in getting the
petition out of the prison and into the main stream of
postal items.
Respondent's motion was called for hearing in Washington,
D.C., on February 26, 1997. Counsel for respondent appeared at
the hearing and presented argument in support of respondent's
motion. Petitioner filed a Rule 50(c) statement with the Court
contesting the merits of respondent's determination.
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Discussion
This 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 at the taxpayer's
"last known address". Sec. 6212(b); Frieling v. Commissioner, 81
T.C. 42, 52 (1983). The taxpayer, in turn, has 90 days (or 150
days if the notice is addressed to a person outside of the United
States) from the date that the notice of deficiency is mailed to
file a petition in this Court for a redetermination of the
deficiency. Sec. 6213(a).
Based upon the Postal Service Form 3877 attached to
respondent's motion to dismiss, and petitioner's statement in his
petition that he received the notice of deficiency in August
1996, we are satisfied that respondent mailed the notice of
deficiency to petitioner on July 26, 1996. See Coleman v.
Commissioner, 94 T.C. 82, 90-91 (1990). Moreover, the fact that
petitioner received an undated notice of deficiency does not
preclude respondent from asserting that the petition was not
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timely filed.5 See Casqueira v. Commissioner, T.C. Memo. 1981-
428; Hurst, Anthony & Watkins v. Commissioner, 1 B.T.A. 26
(1924).
The 90-day period for filing a timely petition with the
Court expired on Thursday, October 24, 1996. As previously
noted, the private postage meter postmark date on the envelope
containing the petition is October 25, 1996. Because the
petition was neither mailed nor filed with this Court within the
90-day period prescribed in section 6213(a) and section 7502, it
therefore follows that this case must be dismissed for lack of
jurisdiction.
Although petitioner does not dispute that the notice of
deficiency was mailed to him at his last known address,
petitioner makes vague and wholly unsubstantiated claims that his
failure to file a timely petition is attributable to delays in
the mail system of the Lewisburg prison camp. Given petitioner's
statement that he received the notice of deficiency in August
1996, petitioner had, at a minimum, nearly 2 months to file a
timely petition with the Court. He has not established the date
on which he deposited his petition in the prison mail system.
Nor has he shown that delays in the prison mail system caused him
to file an untimely petition. See, e.g., Curry v. Commissioner,
5
It should be recalled that the record does not reveal
whether the notice of deficiency that was mailed to the Lewisburg
address was also undated; however, the copy of such notice that
was retained by respondent in her administrative file is dated.
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571 F.2d 1306, 1309-1310 (4th Cir. 1978); Woods v. Commissioner,
T.C. Memo. 1991-433, affd. without published opinion 967 F.2d 597
(9th Cir. 1992).
Consistent with the foregoing, we shall grant respondent's
motion to dismiss for lack of jurisdiction on the ground that
petitioner failed to file a timely petition for redetermination.6
To reflect the foregoing,
An order granting
respondent's Motion to Dismiss
for Lack of Jurisdiction will
be entered.
6
Although petitioner cannot pursue his case in this Court,
he is not without a legal 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).