T.C. Memo. 1998-298
UNITED STATES TAX COURT
EDWARD C. AND MARGARET C. CHANG, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 24759-96. Filed August 18, 1998.
Basil J. Boutris, for petitioners.
James A. Whitten and Usha Ravi, for respondent.
MEMORANDUM OPINION
GALE, Judge: This case is before the Court on respondent's
motion to dismiss for lack of jurisdiction. The issue for
decision is whether petitioners filed their petition for
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redetermination within the 90-day period prescribed by section
6213(a).1
Background
On August 7, 1996, respondent issued and mailed to
petitioners a statutory notice of deficiency determining a
deficiency of $160,266 in petitioners' 1992 Federal income tax
and an accuracy-related penalty under section 6662(a) of $32,053.
The 90-day period for filing a petition for redetermination with
this Court expired on Tuesday, November 5, 1996.
The petition was received and filed by this Court on
November 18, 1996, 103 days after the mailing of the notice of
deficiency. The petition was properly addressed and mailed in an
envelope bearing a privately metered postmark dated November 5,
1996, and indicating the point of origin as Campbell, California.
The envelope did not bear a postmark or any other marking of the
U.S. Postal Service. The envelope in which the petition was
received by this Court is not torn or damaged, and there are no
markings indicating that additional postage was due or that the
normal delivery of the envelope was otherwise disrupted.
The petition was dated November 5, 1996, and was signed by
petitioners' attorney. Included in the envelope with the
petition was a check dated November 5, 1996, in the amount of $60
1
All section references are to the Internal Revenue Code,
and all Rule references are to the Tax Court Rules of Practice
and Procedure, unless otherwise indicated.
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to cover the filing fee drawn on the account of Maynard
Professional Corporation.
Discussion
Section 6213(a) provides that a taxpayer has 90 days after
the mailing of the notice of deficiency (not counting Saturday,
Sunday, or a legal holiday in the District of Columbia as the
last day) to file a petition for redetermination with this Court.
In all cases, the jurisdiction of the Court depends upon the
timely filing of a petition. Rule 13(c); Levitt v. Commissioner,
97 T.C. 437, 441 (1991).
Section 7502(a)(1) provides that the date of a U.S. postmark
is deemed to be the date of delivery if the mailing requirements
of that section are met. However, in the case of privately
metered mail, section 7502 applies "only if and to the extent
provided by regulations prescribed by the Secretary." Sec.
7502(b). Delegating the rules for privately metered mail to the
regulations process reflected congressional concern that the
postmark on such mail was susceptible to manipulation.
Since it is possible to predate postmarks where
mailing machines or other devices are used,
subsection (b) provides that a postmark not made by the
United States post office shall be deemed the date of
delivery only to the extent permitted by regulations.
* * * [H. Rept. 1337, 83d Cong., 2d Sess. (1954).]
In light of this concern, the regulations promulgated under
section 7502(b) are quite exacting and provide as follows:
(b) If the postmark on the envelope or wrapper is
made other than by the United States Post Office, (1)
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the postmark so made must bear a date on or before the
last date, or the last day of the period, prescribed
for filing the document, and (2) the document must be
received by the agency, officer, or office with which
it is required to be filed not later than the time when
a document contained in an envelope or other
appropriate wrapper which is properly addressed and
mailed and sent by the same class of mail would
ordinarily be received if it were postmarked at the
same point of origin by the United States Post Office
on the last date, or the last day of the period,
prescribed for filing the document. However, in case
the document is received after the time when a document
so mailed and so postmarked by the United State Post
Office would ordinarily be received, such document will
be treated as having been received at the time when a
document so mailed and so postmarked would ordinarily
be received, if the person who is required to file the
document establishes (i) that is was actually deposited
in the mail before the last collection of the mail from
the place of deposit which was postmarked (except for
the metered mail) by the United States Post Office on
or before the last date, or the last day of the period,
prescribed for filing the document, (ii) that the delay
in receiving the document was due to a delay in the
transmission of the mail, and (iii) the cause of such
delay. * * * [Sec. 301.7502-1(c)(1)(iii)(b), Proced. &
Admin. Regs.]
The regulations thus provide two tests under which privately
metered mail bearing a timely postmark received after the 90-day
statutory filing period will be deemed timely filed under section
7502(a). The first test requires that the petition be received
not later than the time that mail postmarked at the same mailing
point by the U.S. Postal Service on the last date prescribed for
filing, and sent by the same class of mail, would ordinarily be
received. The second test, applicable if the petition is
received after the time prescribed in the preceding test,
requires that the taxpayer show (i) that the petition was
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actually deposited in the mail within the prescribed period for
filing, (ii) that the delay in receipt was due to a delay in the
transmission of the mail, and (iii) the cause of such delay.
In the instant case, the petition was received by the Court
13 days after the last date prescribed for filing. Since the
privately metered postmark on the envelope is November 5, 1996,
the last date prescribed for filing, the petition will be deemed
timely under the regulations if it was received within the time
that mail of the same class would ordinarily be received if
mailed on that date from the same point of origin. The parties
agree that the point of origin for these purposes is San Jose,
California. Whether a petition has been received within the
normal mailing period is a factual question, and petitioners have
the burden of proving that the 13-day delivery is within the
normal mailing period for mail sent from San Jose, California, to
Washington, D.C. Castro v. Commissioner, T.C. Memo. 1994-530. A
U.S. Postal Service statistical programs coordinator in the San
Jose office, called by respondent, testified that the normal
delivery time from San Jose to Washington, D.C., in November 1996
was 3 days for first class mail and 5 to 7 days for third class
mail. The envelope contains no markings indicating its postage
class, and petitioners have offered no other evidence on this
point. On this record, we find that petitioners have failed to
show that the petition was received within the time that mail
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deposited in San Jose on November 5, 1996, would ordinarily be
received in Washington, D.C.
As a result, petitioners must show in the alternative that
(1) the petition was actually deposited in the mail on or before
November 5, 1996, prior to the last collection of mail, (2) that
the delay in receiving the petition was due to a delay in the
transmission of the mail, and (3) the cause for such delay.
As proof that the petition was mailed on November 5, 1996,
petitioners' attorney, Basil Boutris, testified on their behalf.
Mr. Boutris testified that his office inadvertently failed to
"calendar" the Chang case, and as a result he did not discover
that the petition needed to be filed until November 5, 1996, the
last day prescribed for filing. He testified that he accordingly
prepared a petition, used a private postage meter in an adjacent
law office for postage so as to insure the envelope bore the
correct date, and then personally took the envelope containing
the petition to the post office because it was election day and
he was traveling that way to vote. According to Mr. Boutris, he
took the petition to the Meridian Branch of the San Jose Post
Office at approximately 5:30 p.m. and handed it to a postal
employee who reviewed the privately metered date on the envelope
and dropped it in the bin.
This testimony is consistent with the policy of the U.S.
Postal Service to check the accuracy of the date stamped on
privately metered mail and only stamp the envelope with a U.S.
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Postal Service postmark if the date is incorrect. However,
according to the U.S. Postal Service employee called by
respondent, this verification only occurs when the mail is
presented to a postal employee.
We need not decide, however, whether Mr. Boutris'
uncorroborated testimony as to the mailing date is sufficient
proof thereof because petitioners in any event have not satisfied
their burden of proof as to the last two conditions found under
section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs. Namely,
petitioners have failed to establish that the delay in receipt
was due to a delay in the transmission of the mail and the cause
therefor.
Petitioners cite Rotenberry v. Commissioner, 847 F.2d 229
(5th Cir. 1988), revg. and remanding an Order of this Court, in
support of their contention that they have adequately explained
the delay. In Rotenberry, the Court of Appeals for the Fifth
Circuit held that the taxpayer could meet his burden of proving
the cause of delay with proof of general reasons for delay in
mail delivery between the receiving station and the addressee,
without having to pinpoint the specific reason why the item of
mail in question was delayed. The petition at issue in
Rotenberry was mailed on December 23 and received 8 days later on
December 31, which this Court found to be longer that the
ordinary delivery time. The Court of Appeals noted that the
taxpayers had presented uncontroverted evidence of the following:
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(1) the dramatic increase in the volume of holiday
mail; (2) the mailing by the IRS of 87 million tax
return forms on December 27, 1985; (3) the recognized
proclivity of some post office employees to take time
off, leave early, and work less diligently during the
holidays; (4) the addition of temporary postal
employees during the holiday rush with their known
deficiencies in accuracy and efficiency; (5) the heavy
airline passenger traffic during the holidays,
requiring that mail be pulled off flights and held for
later flights, causing mail handling delays at Houston
Intercontinental Airport of up to 48 hours; (6) the
inclement weather during the critical period and the
adverse effect it had on travel in the District of
Columbia; and (7) the mail routine which calls for
delivery of mail to the Tax Court only once a day, in
the early morning, so that any item received at its
immediate post office during the day is not delivered
until the next. * * * [Id. at 232-233; fn. ref.
omitted.]
On the basis of this evidence, the Court of Appeals concluded
that the taxpayers had met the requirements of section 301.7502-
1(c)(1)(iii)(b), Proced. & Admin. Regs.2
On brief, petitioners attempt to bring themselves within a
Rotenberry scenario by repeated speculations about the impact of
"holiday" conditions on mail service. The mailing period at
issue in this case is November 5, 1996 (the date on which
petitioners allege the petition was mailed), through November 18,
1996 (the date on which the petition was received). In 1996,
Thanksgiving Day fell on November 28. We do not believe that
petitioners have shown that "holiday" conditions existed that
2
The Commissioner had conceded that the delay in receipt
was occasioned by a delay in the transmission of the mail; the
dispute was over the adequacy of the taxpayer's proof of the
cause therefor.
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would have had a significant impact on mail service during the
relevant period. In addition, petitioners assert that there was
a severe storm creating flooding conditions in the Washington,
D.C., area on November 8, 1996. Even were we to accept this
contention, it at most accounts for a delay in receipt from
Friday, November 8, until Tuesday or Wednesday, November 12 or
13, 1996. (Monday, November 11, 1996, was a Federal holiday.)
Finally, in his testimony, Mr. Boutris made the bald assertion
that there were "delivery problems" at the Meridian Branch of the
San Jose Post Office. This assertion was not corroborated, even
though Mr. Boutris testified that his secretary experienced the
same problems.
Because the foregoing evidence falls well short of that in
Rotenberry v. Commissioner, supra, we have no occasion to
consider whether we should adopt the Rotenberry standard in
applying section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.
Suffice it to say that petitioners have failed to prove that the
delay in receipt was due to a delay in the transmission of the
mail and the cause therefor, even under the liberal Rotenberry
standard. In any event, Rotenberry v. Commissioner, supra, would
not be binding authority here because it is to the Court of
Appeals for the Ninth Circuit that appeal of this case lies. See
Hanna & Associates, P.C. v. Commissioner, T.C. Memo. 1997-376;
Little v. Commissioner, T.C. Memo. 1995-491; Oswald v.
Commissioner, T.C. Memo. 1995-17; Weinreich v. Commissioner, T.C.
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Memo. 1994-32; Vanderstappen v. Commissioner, T.C. Memo. 1993-
109; see also Lindemood v. Commissioner, 566 F.2d 646 (9th Cir.
1977), affg. per curiam T.C. Memo. 1975-195.
Because petitioners have failed to show that they meet the
requirements of section 301.7502-1(c), Proced. & Admin. Regs.,
the petition is not rendered timely by section 7502 and therefore
was not timely filed under section 6213(a). Accordingly, we
grant respondent's motion to dismiss for lack of jurisdiction on
the ground that the petition was not timely filed.
To reflect the foregoing,
An appropriate order of dismissal
for lack of jurisdiction will be
entered.