T.C. Memo. 2000-348
UNITED STATES TAX COURT
DONNA J. HENDLEY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3877-00. Filed November 9, 2000.
Jeffrey G. Williams, for petitioner.
Ronald L. Buch, Jr. and Erin K. Huss, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This matter is before the Court
on respondent's Motion to Dismiss for Lack of Jurisdiction, filed
May 30, 2000. As discussed in detail below, we shall grant
respondent's motion to dismiss.1
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.
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Background
On January 6, 2000, respondent mailed a notice of deficiency
to Donna J. Hendley (petitioner) determining a deficiency of
$49,053 in her Federal income tax for 1995. There is no dispute
that respondent mailed the notice to petitioner at her last known
address.
On April 7, 2000, the Court received and filed a petition
submitted on petitioner’s behalf by her counsel, Jeffrey G.
Williams (Mr. Williams). The petition is dated April 5, 2000.
The petition arrived at the Court in an envelope bearing
sufficient postage, a priority mail sticker, and multiple U.S.
Postal Service postmarks all dated April 6, 2000. The legend
around the perimeter of the postmarks states: “USPS MESA AZ. STA.
NO. 10". At the time that the petition was filed, petitioner
resided in Flagstaff, Arizona.
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 in section 6213(a). Petitioner
filed an objection to respondent's motion to dismiss, accompanied
by an affidavit executed by Mr. Williams, asserting that the
petition was timely mailed to the Court on April 5, 2000. Mr.
Williams’ affidavit states in pertinent part that on April 5,
2000, at approximately 4:30 p.m., he delivered the petition to a
so-called contract postal unit maintained at a small retail store
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known as Impressive Greetings, located at 1225 South Alma School
Road, Mesa, Arizona. Mr. Williams further states that, at the
time he mailed the petition, he saw the clerk affix a postmark on
the envelope.
This matter was called for hearing at the Court's motions
session in Washington, D.C. Counsel for respondent appeared at
the hearing and offered argument in support of respondent's
motion to dismiss. Although no appearance was entered by or on
behalf of petitioner at the hearing, petitioner did file a
written statement with the Court pursuant to Rule 50(c).
Following the hearing, the Court directed the parties to file
responses providing additional details regarding the postal
services provided at Impressive Greetings.
Both parties filed responses as directed by the Court.
Respondent’s response was accompanied by a declaration executed
by Michael J. Noggle (Mr. Noggle), identified as a co-owner of
Impressive Greetings. Mr. Noggle’s declaration states that the
services provided by Impressive Greetings as a contract postal
unit are the equivalent of services provided by the U.S. Postal
Service. The declaration further states that the contract postal
unit at Impressive Greetings processes regular, priority, and
express mail, as well as registered and certified mail. With
regard to the practices and procedures employed by the contract
postal unit at Impressive Greetings, the declaration states:
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5. The main post office branch in Mesa, Arizona
picks up mail from our contract postal unit twice a
day. Once at 2:15 p.m., and again at 4:30 p.m. The
4:30 p.m. pick-up is the last mail pick-up of the day.
There is a visible sign on the wall in the back of the
contract postal unit telling customers that the pick-up
times are at 2:15 p.m. and 4:30 p.m.
6. Impressive Greetings is open for business until
5:00 p.m. Monday through Friday.
* * * * * * *
8. Our policy is to turn our hand-stamp postmark
date to the next day at 4:30 p.m. This way, any mail
that goes out with the 4:30 p.m. mail has the current
day’s postmark on it. The mail that arrives after the
main post office has done their pickup should have the
following day’s postmark on it. The changing of the
postmark date stamp at this time is in conformity with
the direction of the Mesa, Arizona, United States Post
Office. We are not supposed to predate or postdate
mail. The postmark should reflect the date that the
mail will be picked up from our establishment by the
Mesa, Arizona, United States Post Office.
Mr. Noggle’s declaration includes a sample of the postmark used
by the postal contract unit at Impressive Greetings. The sample
postmark matches the postmark on the envelope bearing the
petition in this case.
This matter was called for a second hearing at the Court's
motions session in Washington, D.C. Counsel for respondent again
appeared and offered argument in support of respondent’s motion
to dismiss. Although no appearance was entered by or on behalf
of petitioner at the hearing, petitioner again filed a written
statement with the Court pursuant to Rule 50(c).
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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. See 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,
generally has 90 days from the date the notice of deficiency is
mailed to file a petition in this Court for a redetermination of
the deficiency. See sec. 6213(a).
There is no dispute that respondent mailed the notice of
deficiency to petitioner at her last known address on January 6,
2000. Accordingly, the 90-day period for filing a timely
petition with the Court expired on Wednesday, April 5, 2000. See
sec. 6213(a). The petition in this case was not filed until
April 7, 2000.
Although the petition was not timely filed, petitioner
maintains that the petition was mailed to the Court on April 5,
2000-–the 90th day after the mailing of the notice. Petitioner
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offered circumstantial evidence that Mr. Williams delivered the
petition to the contract postal unit at Impressive Greetings late
in the afternoon on April 5, 2000.
Section 7502 provides that, under certain circumstances, a
timely-mailed petition will be treated as though it were timely
filed. Section 7502(a) states in pertinent part:
SEC. 7502(a). General Rule.–-
(1) Date Of Delivery.–-If any return, claim,
statement, or other document required to be filed,
* * * within a prescribed period or on or before a
prescribed date under authority of any provision of the
internal revenue laws is, after such period or such
date, delivered by United States mail to the agency,
officer, or office with which such return, claim,
statement, or other document is required to be filed,
* * * the date of the United States postmark stamped on
the cover in which such return, claim, statement, or
other document, or payment, is mailed shall be deemed
to be the date of delivery or the date of payment, as
the case may be.
In sum, section 7502(a) provides that if a petition is delivered
to the Court by the U.S. Postal Service, then the date of the
postmark stamped on the envelope bearing the petition shall be
deemed the date of delivery.2 See sec. 301.7502-1(c)(1)(iii)(a),
Proced. & Admin. Regs., which provides, in part, that “If the
postmark does not bear a date on or before the last date, or the
last day of the period, prescribed for filing the document, the
2
Sec. 7502(c) provides an additional safeharbor where a
taxpayer mails his petition to Court using certified or
registered mail. Because Mr. Williams concedes that he did not
use certified or registered mail in this case, we need not
consider sec. 7502(c).
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document will be considered not to be filed timely, regardless of
when the document is deposited in the mail.” (Emphasis added.)
Based upon the record presented, we conclude that the
petition was not timely filed pursuant to section 7502(a).
Simply put, the U.S. Postal Service postmark date of April 6,
2000, affixed to the envelope bearing the petition, is conclusive
proof that the petition was not timely filed under section
7502(a).
Petitioner offers extrinsic evidence that the petition was
timely mailed on April 5, 2000. Although we allow extrinsic
evidence to prove the date of mailing where an envelope lacks a
postmark or the postmark is illegible, see Sylvan v.
Commissioner, 65 T.C. 548, 553-555 (1975), such evidence is
irrelevant in this case inasmuch as the envelope bears legible
U.S. Postal Service postmarks dated after the 90th day prescribed
for filing a timely petition. See Shipley v. Commissioner, 572
F.2d 212 (9th Cir. 1977); Drake v. Commissioner, 554 F.2d 736
(5th Cir. 1977); Kahle v. Commissioner, 88 T.C. 1063 (1987);
Wiese v. Commissioner, 70 T.C. 712 (1978); Hamilton v.
Commissioner, T.C. Memo. 1982-201. In conjunction with the
foregoing, we note that the April 6, 2000 postmark date, a date 1
day before the petition was delivered to the Court, is not
overtly erroneous on its face. See Harrison v. Commissioner,
T.C. Memo. 1990-458 (private postage meter postmark on envelope
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bearing a petition was treated as a nullity where the petition
was delivered to the Court more than a week before the date of
the postmark).
Petitioner cites Anderson v. Commissioner, 966 F.2d 487 (9th
Cir. 1992), for the proposition that she has offered sufficient
evidence to invoke the common-law “mailbox” rule. Petitioner’s
reliance on Anderson v. Commissioner, supra, and the mailbox rule
is misplaced.
The question presented in Anderson v. Commissioner, supra,
was whether the taxpayer would be permitted to present extrinsic
evidence of the date of mailing of a tax return where the
Commissioner had no record of having received the return. Under
the facts presented in that case, the Court of Appeals for the
Ninth Circuit (1) rejected the Commissioner’s argument that
section 7502 presented the sole means for the taxpayer to prove
the date of mailing of the missing tax return, and (2) allowed
the taxpayer’s extrinsic evidence. After sustaining the district
court’s holding that the taxpayer had established the date of
mailing, the Court of Appeals went on to sustain the District
Court’s holding that the taxpayer could rely on the rebuttable
presumption under the common law mailbox rule that a document
properly and timely mailed is received by the addressee.
Contrary to petitioner’s position, Anderson v. Commissioner,
supra, does not stand for the broader proposition that a taxpayer
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may offer extrinsic evidence to rebut the date of a postmark
affixed to an envelope bearing a petition filed with the Court.
Indeed, in the course of its analysis, the Court of Appeals in
Anderson v. Commissioner, supra, acknowledged its earlier holding
in Shipley v. Commissioner, supra, that, in the absence of a
receipt for certified mail, the taxpayer was precluded under
section 7502 from introducing extrinsic evidence to prove that
the postmark date affixed to the envelope bearing a petition
filed with the Court was incorrect.
Although the circumstances leading to the late filed
petition in this case are unfortunate, we note that the mailing
of the petition on the 90th day raised “the spectre of possible
timeliness problems” requiring a heightened degree of care in the
mailing process. See Drake v. Commissioner, supra at 739.
Moreover, although we lack jurisdiction in this case, petitioner
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 Court of Federal Claims. See id. at 739; McCormick
v. Commissioner, 55 T.C. 138, 142 (1970). Consistent with the
preceding discussion, we shall grant respondent's Motion to
Dismiss for Lack of Jurisdiction.
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To give effect to the foregoing,
An order of dismissal for
lack of jurisdiction will be
entered.