T.C. Memo. 2001-102
UNITED STATES TAX COURT
IRVIN KIRSCHENBAUM, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10133-00. Filed April 26, 2001.
Marc C. Rosenberg, for petitioner.
Jack H. Klinghoffer, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge Stanley J. Goldberg, pursuant to Rules 180, 181, and 183.
Unless otherwise indicated, section references are to the
Internal Revenue Code, and Rule references are to the Tax Court
Rules of Practice and Procedure. The Court agrees with and
adopts the opinion of the Special Trial Judge, which is set forth
below.
- 2 -
OPINION OF THE SPECIAL TRIAL JUDGE
GOLDBERG, Special Trial Judge: This matter is before the
Court on respondent’s Motion to Dismiss for Lack of Jurisdiction.
Respondent moved for dismissal on the ground that the petition
was not filed within the time period prescribed in section
6213(a) or section 7502. Petitioner, in his objection to
respondent’s motion, contends that the petition was deposited in
the mail before the expiration of the 90-day period for filing.1
A hearing was held on the motion in Los Angeles, California.
Petitioner resided in Beverly Hills, California, at the time the
petition was filed.
Background
In a notice of deficiency dated June 20, 2000, and sent by
certified mail on that day, respondent determined a deficiency in
petitioner’s Federal income tax of $50,821 for the taxable year
1996. There is no dispute that respondent mailed the notice of
deficiency to petitioner’s last known address. The 90-day period
for filing a petition with this Court expired on Monday,
September 18, 2000, which was not a legal holiday in the District
of Columbia.
1
The notice of deficiency was addressed to Irvin
Kirschenbaum and Evelyn Kirschenbaum. However, Evelyn
Kirschenbaum did not sign the petition to the Tax Court and is
not a party in this case.
- 3 -
The petition was signed by petitioner’s attorney, Marc C.
Rosenberg (Mr. Rosenberg), on September 11, 2000. The petition
was received and filed with this Court on September 28, 2000.
The envelope in which the petition arrived at the Court bears a
private postage-meter postmark that reads, in part, “Tarzana CA
Sep.15.00 POSTALIA 288967".2
At the hearing on respondent’s motion, Mr. Rosenberg
testified that on Friday, September 15, 2000, he applied the
postage on the envelope addressed to the Tax Court. Mr.
Rosenberg stated that he then dropped the petition into the
office building’s mail receptacle “in the evening” at the end of
the day, apparently after the last U.S. Postal Service pickup at
4 p.m. It is unclear whether the U.S. Postal Service picked up
the mail from his office building on Saturday, the following day.
There is no Sunday pickup.
Mr. Rosenberg used a Francotyp-Postalia, model T-1000 (T-
1000), postage meter to apply the postage and date on the
envelope addressed to this Court. Although the T-1000
automatically sets the date and time for postal metering, the
operators manual provides simple step-by-step instructions under
the heading “To Change the Date Manually” to override its
automatic internal clock. The T-1000 does not have any internal
2
POSTALIA refers to a private postage meter,
specifically known as Francotyp-Postalia, model T-1000.
- 4 -
functions indicating whether the time or date had been altered
from its original setting.
Respondent’s witness, William Pace (Mr. Pace) from the U.S.
Postal Service, testified that ordinary delivery of first class
mail from Tarzana, California, to Washington, D.C., is about 3
days. Furthermore, about 89.7 percent of first class mail sent
from Tarzana, California, to Washington, D.C., is delivered
within 3 days. The percentage increases to about 97 to 98
percent of such mail being delivered within 4 days, and nearly
100 percent delivered within 5 days. Mr. Pace’s testimony is
based on monthly statistics maintained by the U.S. Postal
Service. According to the records maintained by the
Transportation and Network Division of the Santa Clarita
Processing and Distribution Center of the Postal Service, no
special circumstances existed during the period of September 15
through 28, 2000, that would explain the delay in delivery of the
petition.
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).
- 5 -
Section 6212(a) authorizes the Secretary, upon determining
that there is a deficiency in income tax, to send a notice of
deficiency to the taxpayer by certified or registered mail.
Ordinarily, a petition for redetermination of a deficiency must
be filed with this Court within 90 days from the mailing of the
notice of deficiency. See sec. 6213(a). The time provided for
the filing of a petition with this Court is jurisdictional and
cannot be extended. Failure to file within the prescribed period
requires that the petition be dismissed for lack of jurisdiction.
See Estate of Rosenberg v. Commissioner, 73 T.C. 1014, 1016-1017
(1980).
The 90-day period for filing a timely petition with this
Court expired on Monday, September 18, 2000. The petition was
filed with the Court on Thursday, September 28, 2000, which is
100 days after the mailing of the notice of deficiency.
Although the petition was received on the 100th day after
the mailing of the notice of deficiency, petitioner contends that
the petition was timely mailed to the Court on Friday, September
15, 2000, the 87th day after the mailing of the notice of
deficiency. Petitioner also contends that even if the mail was
not picked up until Monday, September 18, 2000, the 90th day
after the mailing of the notice of deficiency, the petition was,
nevertheless, mailed within the prescribed time period.
- 6 -
Section 7502 and the regulations thereunder provide that, in
certain circumstances, a timely mailed petition will be treated
as though it were timely filed. See sec. 7502; sec. 301.7502-
1(c)(1)(iii)(a), Proced. & Admin. Regs. However, where the
postmark in question is made by a private postage meter, as in
this case, section 301.7502-1(c)(1)(iii)(b), Proced. & Admin.
Regs., provides the following:
If the postmark on the envelope or wrapper is made
other than by the United States Post Office, (1) 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 States 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 it 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. * * *
Although petitioner argues that “normal” delay in the
transmission of the mail occurred, he failed to establish what
- 7 -
constituted “normal” delay in his case and the cause of such
delay. Petitioner’s belief that error in the transmission of
mail caused the petition to arrive on the 100th day--13 days
after the petition was allegedly mailed-–is unfounded. He is
essentially claiming, on the basis of “chance”, and without
evidentiary support, that compounded human errors, including mail
lodged in mail boxes or drop slots and accidental mailing to
Washington State, may have delayed the receipt of his petition by
this Court by 10 days beyond its ordinary delivery time.
Petitioner’s argument, without corroboration, is mere conjecture
and does not meet the criteria established in section 7502 and
its regulations. See sec. 301.7502-1(c)(1)(iii)(b), Proced. &
Admin. Regs.
In the alternative, Mr. Rosenberg argues that because he did
not know that the date could be altered on the T-1000 or how to
alter the date on the T-1000 at the time of the mailing, then he
could not have altered the postage date on the envelope of the
petition; thus, “it was as good as a date stamp at the U.S. Post
Office or by certified mail.” This argument has no basis in the
law. The regulations state the specific criteria that must be
met if a taxpayer does not use a U.S. Postal Service postmark,
and instead chooses to use a private postage meter postmark to
mail and file time-sensitive documents with the Court.
- 8 -
The petition was received by the Court after the expiration
of the 90-day filing period, and petitioner has failed to meet
the criteria stated in the regulations to prove a timely filing.
Accordingly, we hold that this case must be dismissed for lack of
jurisdiction on the ground that the petition was not timely
filed. Petitioner could have avoided such a result if the
envelope containing the petition had been mailed by registered or
certified mail and postmarked by the U.S. Postal Service on or
before September 18, 2000. See sec. 7502(a), (c); sec. 301.7502-
1(c)(2), Proced. & Admin. Regs.
To reflect the foregoing,
An order and order of
dismissal for lack of
jurisdiction will be entered.