T.C. Memo. 2001-230
UNITED STATES TAX COURT
MOSHE ROTHBARD, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 398-01. Filed August 23, 2001.
Leo Salzman (specially recognized), for petitioner.
Michael A. Menillo, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before us on respondent’s
motion to dismiss for lack of jurisdiction (respondent’s motion)
because the petition was not timely filed. The Court held an
evidentiary hearing on respondent’s motion.
In the petition, petitioner indicated that his principal
residence as of the date the petition was filed was in Manches-
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ter, England.
On September 26, 2000, respondent mailed to petitioner at
111 Clymer St., Apt. 3E, Brooklyn, N.Y., a notice of deficiency
with respect to his taxable year 1997 (notice). The petition was
filed on January 8, 2001, 104 days after the date on which
respondent mailed the notice to petitioner.
The petition was mailed to the Court in an envelope (enve-
lope in question) that was properly addressed to the Court and
that contained a privately metered postage stamp (private postage
stamp). The private postage stamp bore the date of December 26,
2000, and showed the point of origin as Brooklyn, N.Y.
If the envelope in question had been postmarked by the U.S.
Postal Service (Postal Service) on December 26, 2000, at the same
point of origin, that envelope would ordinarily have been re-
ceived by the Court two days after the date on which it was
mailed (i.e., two days after the Postal Service postmark date of
December 26, 2000). If the envelope in question had been post-
marked by the Postal Service on December 26, 2000, at the same
point of origin, it would have been out of the ordinary for that
envelope to have been received by the Court 13 days after the
date on which it was mailed (i.e., 13 days after the Postal
Service postmark date of December 26, 2000).
While there generally is an increase in the number of pieces
of mail handled by the Postal Service during the Christmas
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holiday season, that increase has been slight in recent years.
That is because many people have not been using the Postal
Service for regular mail, and, due to the increase by the Postal
Service in the price of postage, people have not been mailing
many Christmas cards. In order to accommodate the slight in-
crease in the number of pieces of mail during the Christmas
holiday season, the Postal Service has not permitted its person-
nel to take vacations during the month of December. Even if
there had been a delay in recent years in the delivery of mail
postmarked by the Postal Service during the Christmas holiday
season, it would not have been very likely that any such delay
would have been as long as 13 days.
Petitioner does not dispute, and we find on the record
before us, (1) that the postmark on the envelope in question was
not a postmark made by the Postal Service, (2) that section
7502(b)1 and the regulations thereunder pertaining to postmarks
not made by the Postal Service apply in the instant case, and
(3) that he does not satisfy that section and those regulations.
Instead, petitioner asks the Court to disregard section 7502(b)
and the regulations thereunder in determining whether the peti-
tion is to be treated as timely filed under section 7502(a). We
reject that request. On the instant record, we are required to
1
All section references are to sections of the Internal
Revenue Code (Code) in effect at all relevant times.
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apply those provisions of the Code and the regulations.
On the record before us, we find that petitioner has failed to
establish (1) that the envelope in question was actually deposited
in the U.S. mail on or before December 26, 2000, the last day for
timely filing a petition in the Court,2 see secs. 6213(a), 7503;
(2) that the delay in the Court’s receiving the petition was due to
a delay in the transmission of the U.S. mail; and (3) the cause of
the delay. See sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin.
Regs. On that record, we find that petitioner has failed to show
that the petition was timely filed. See secs. 6213(a), 7502(b);
sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs. Accordingly,
we shall grant respondent’s motion.
To reflect the foregoing,
An appropriate order granting
respondent’s motion to dismiss for
lack of jurisdiction will be entered.
2
Petitioner does not dispute that he was required to file a
petition in the Court on or before Dec. 26, 2000, with respect to
the notice that respondent issued to him for his taxable year
1997.