T.C. Memo. 1998-235
UNITED STATES TAX COURT
GREGORY KEITH WADE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 17766-97. Filed July 2, 1998.
Gregory Keith Wade, pro se.
Paul B. Burns, for respondent.
MEMORANDUM OPINION
WOLFE, Special Trial Judge: This matter is before the Court
on respondent's Motion to Dismiss for Lack of Jurisdiction.
Respondent contends that this Court lacks jurisdiction because
the petition was not filed within the applicable 90-day period
after mailing of the deficiency notice as required by sections
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6213(a) and 7502.1 Petitioner objects to respondent's Motion to
Dismiss for Lack of Jurisdiction and contends that he should be
allowed 150 days from the date of mailing of the deficiency
notice to file his petition with this Court because he was
outside of the United States on the day the notice of deficiency
was issued.
On March 19, 1997, respondent sent a notice of deficiency
for the taxable year 1994 to petitioner at his last known
address. On August 16, 1997, 150 days after the notice of
deficiency was sent, petitioner filed with this Court his
petition contesting the addition to tax under section 6651(a) and
the accuracy-related penalty under section 6662(a). Petitioner
resided in San Clemente, California, when his petition was filed.
During the hearing, the parties agreed to an oral stipulation of
facts, which was read into the record and incorporated by this
reference. Subsequent to the hearing, the parties submitted an
additional stipulation of facts and attached exhibits that are
also incorporated by this reference.
This Court's jurisdiction is strictly limited by statute,
and unless a petition is filed within the time prescribed by
statute, we lack jurisdiction and must dismiss the case. Estate
of Moffat v. Commissioner, 46 T.C. 499, 501 (1966). For the
1
All section references are to the Internal Revenue Code in
effect for the tax year in issue, unless otherwise indicated.
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reasons discussed below, we deny respondent's Motion to Dismiss
for Lack of Jurisdiction.
Generally, a petition must be filed within 90 days after the
notice of deficiency is mailed to a taxpayer within the United
States. Secs. 6213(a), 7502; Monge v. Commissioner, 93 T.C. 22,
27 (1989). If the notice of deficiency is addressed to a person
outside the United States, the taxpayer has 150 days to file a
petition. Sec. 6213(a). The statute states in pertinent part:
SEC. 6213(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 (not counting
Saturday, Sunday, or a legal holiday in the District of
Columbia as the last day), the taxpayer may file a
petition with the Tax Court for a redetermination of
the deficiency. * * *
The 90-day period for filing with this Court expired on
Tuesday, June 17, 1997, which was not a legal holiday in the
District of Columbia. The envelope in which the petition was
mailed bore a legible United States postmark of August 16, 1997,
exactly 150 days after the mailing of the notice of deficiency.
Sec. 7502(a)(1). This Court received and filed petitioner's
petition on August 26, 1997. Respondent concedes that, if the
longer period is applicable, petitioner has satisfied the 150-day
requirement for filing a notice of deficiency pursuant to
sections 6213(a) and 7502(a). Our jurisdiction, therefore,
depends on whether petitioner was entitled to file his petition
within 150 days after the notice of deficiency was mailed.
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This Court has determined that the 150-day period applies
not only to persons who are outside of the United States "on some
settled business and residential basis," but also to persons who
are temporarily absent from the country. Levy v. Commissioner,
76 T.C. 228, 231 (1981). In addition, the taxpayer's absence
from the country must result in delayed receipt of the deficiency
notice. Lewy v. Commissioner, 68 T.C. 779, 783 (1977).
In Levy v. Commissioner, supra, the taxpayers left their
home in Chicago for a vacation in Jamaica on the same day that
the notice of deficiency was mailed to them. The taxpayers
returned to their home 5 days later, at which time they received
the notice of deficiency. In holding that the 150-day period
applied, this Court found that, "the full 90-day period for
reviewing their position and determining their options was not
available to the * * * [taxpayers], and it was this precise
hardship which occasioned the drafters to allow 150 days for a
response where the taxpayer is abroad." Id. at 231.
The evidence in this case establishes that petitioner
departed on Korean Airlines flight number 11, from Los Angeles,
California, to Seoul, South Korea, on March 19, 1997, the day the
notice of deficiency was issued. Prior to his departure from the
United States, petitioner put his mail delivery on hold at his
local post office. Petitioner arrived in the Philippines, his
destination on this journey, on March 21, 1997. On April 3,
1997, petitioner left the Philippines and returned directly to
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the United States. Subsequently, petitioner picked up the notice
of deficiency at his local post office on April 7, 1997.
Petitioner was temporarily absent from the United States and
was delayed approximately 19 days2 in receiving the notice of
deficiency. See Estate of Krueger v. Commissioner, 33 T.C. 667
(1960). Petitioner did not have the full 90-day period for
considering the matter after the mailing of the deficiency notice
and, as noted above, in accordance with the purpose of the
statute as well as the terms of section 6213(a), the 150-day
period is applicable here. See Levy v. Commissioner, supra at
231. Respondent's argument that petitioner had sufficient time
to file the notice of deficiency within the 90-day period after
his return to the United States and, therefore, is not eligible
for the extended 150-day period, is unpersuasive under the
circumstances here. Petitioner's absence from the United States
was not an "ephemeral one, a weekend trip" and consequently the
"practical" test set forth Malekzad v. Commissioner, 76 T.C. 963,
970-972 (1981), is inapplicable here.
Accordingly, petitioner is entitled to avail himself of the
150-day filing period. Respondent's motion is denied.
An appropriate order will
be issued.
2
Petitioner returned to the United States 15 days after the
notice of deficiency was mailed but, acting reasonably under the
circumstances of his lengthy travel, did not pick up his mail at
the post office until 19 days after the mailing of the notice.