T.C. Memo. 1997-303
UNITED STATES TAX COURT
GERRY DAN AND KELLY M. LANGSTON, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22262-96. Filed July 1, 1997.
James D. Williams, for petitioners.
Ann L. Darnold, for respondent.
MEMORANDUM OPINION
COUVILLION, Special Trial Judge: Respondent filed a motion
to dismiss this case for lack of jurisdiction on the ground that
the petition was not timely filed. Petitioners, through counsel,
filed a notice of objection. The motion was assigned for hearing
- 2 -
pursuant to section 7443A(b)(4)1 and Rules 180, 181, and 183.
The motion was calendared for hearing and was heard.
Respondent determined against petitioners the following
deficiencies in Federal income taxes, additions to tax, and
penalties for the years indicated:
Addition to Tax Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
1993 $7,977 $1,995 $ 963
1994 5,251 263 1,050
At the time the petition was filed, petitioners' legal residence
was Tulsa, Oklahoma.
Respondent mailed the notice of deficiency by certified
mail, on June 14, 1996, to petitioners' last known address. The
period for timely filing the petition in this Court, pursuant to
section 6213(a), ended Thursday, September 12, 1996, which date
was not a legal holiday in the District of Columbia. The
petition was filed with this Court on October 16, 1996, which
date was 124 days after the mailing of the notice of deficiency.
Respondent contends the petition was not timely filed within
the time prescribed by sections 6213(a) and 7502(b) and the
1
Unless otherwise indicated, section references are to
the Internal Revenue Code in effect for the years at issue. All
Rule references are to the Tax Court Rules of Practice and
Procedure.
- 3 -
regulations thereunder. Petitioners contend their petition was
timely filed, by mail, on September 12, 1996.
A petition for redetermination of a deficiency must
generally be filed with this Court within 90 days after the
notice of deficiency is mailed to the taxpayer. Sec. 6213(a).
If a taxpayer fails to file within the statutory period, the
petition must be dismissed for lack of jurisdiction. Sylvan v.
Commissioner, 65 T.C. 548, 549-550 (1975).
If a petition is received after the 90-day period, the
petition is deemed filed when mailed if the requirements of
section 7502 are satisfied. Stotter v. Commissioner, 69 T.C.
896, 897 (1978). Under section 7502(a), if the envelope
containing the petition bears a postmark made by the U.S. Postal
Service (Postal Service), if the date of such postmark falls
within the 90-day period, and if the other requirements of
section 7502 are satisfied, then the otherwise untimely petition
will be deemed timely filed. Stotter v. Commissioner, supra.
When there is an illegible postmark or the postmark was
inadvertently left off, a taxpayer may submit evidence to show
that, in fact, the petition was timely mailed. Sylvan v.
Commissioner, supra at 553. To obtain the benefits of section
7502, a taxpayer has the burden of proof to establish timely
mailing. Sec. 301.7502-1(c)(1)(iii)(a), Proced. & Admin. Regs.;
Mason v. Commissioner, 68 T.C. 354, 356-357 (1977).
- 4 -
The petition in this case was mailed to this Court by
ordinary mail, first class, but the parcel was neither certified
nor registered. The mailing cover or envelope was properly
addressed to the Court and bears a postmark by the Postal Service
that is not legible. The envelope, however, bears two rubber-
stamped notations that state: "Found in supposedly empty
equipment." At the hearing on the motion, an employee of the
Postal Service acknowledged that the two rubber-stamped notations
were those of the Postal Service, and the message on these
notations could account for the delay in the delivery of the
petition to the Tax Court. Based on this testimony, the Court
concludes that the delay in delivery of the petition to this
Court was due to a delay in the transmission of the mail, and
that the cause of such delay was the Postal Service. In the
absence of the envelope's having been misplaced or left in the
empty equipment of the Postal Service, the Court is satisfied
that the petition would have been delivered to the Court in the
normal period of time for a parcel mailed from Tulsa, Oklahoma,
to Washington, D.C.
As noted above, in order for petitioners to rely on the
timely mailing, timely filing provisions of section 7502(a) where
the postmark is illegible, they must prove the date the postmark
was made. See Berry v. Commissioner, T.C. Memo. 1994-224.
- 5 -
Petitioners' case is made difficult by the fact that the
petition, the accompanying statement designating the place of
trial, the attorney's cover letter of transmittal, and the
attorney's check for the Court's filing fee all bear dates of
September 13, 1996--which is a date 91 days from the date the
notice of deficiency was mailed. Petitioners called one witness
at the hearing, a paralegal who was employed by petitioners'
attorney, who testified that he prepared the final draft of the
petition in the late afternoon on September 12, 1996, and that
both he and petitioners' counsel were cognizant that
September 12, 1996, was the 90th day from the date the notice of
deficiency was mailed, and that the petition had to be mailed on
that date. He testified further that he inadvertently typed the
date of September 13 because, in preparing legal documents in the
late afternoon, he customarily dated such documents the
succeeding day. Petitioners' counsel, who was present at the
hearing, represented to the Court that he was likewise aware that
the petition had to be mailed on September 12, and that he
personally hand delivered the petition, addressed to this Court,
to the Tulsa, Oklahoma, post office on September 12, 1996,
shortly before 7 p.m. He rang the bell at the post office and
handed the envelope containing the petition to a postal clerk,
specifically requesting that the parcel be postmarked that date.
- 6 -
The postal clerk responded that the parcel would be postmarked as
requested.
The Court is satisfied that the testimony of petitioners'
witness and the representations of their attorney are credible,
and that the petition was mailed by counsel for petitioners on
September 12, 1996. Counsel for respondent, at the hearing,
agreed that "Petitioner has provided sufficient, credible
evidence that the petition was mailed on September 12th". The
Court holds, therefore, that petitioners have sustained their
burden of proving that their petition was timely mailed.
Respondent's motion, therefore, will be denied.
An appropriate order
will be issued.