T.C. Memo. 2002-23
UNITED STATES TAX COURT
MARK ERNEST AND ESTHER RUBKE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10015-01. Filed January 22, 2002.
Mark Ernest and Esther Rubke, pro sese.
H. Clifton Bonney, Jr., for respondent.
MEMORANDUM OPINION
RUWE, Judge: This case is before the Court on respondent’s
Motion to Dismiss for Lack of Jurisdiction. Respondent’s motion
is based on the ground that the petition in this case was not
timely filed. The Court held a hearing on respondent’s motion.
On May 3, 2001, respondent mailed petitioners a notice of
deficiency for their taxable year 1996. The 90-day period for
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filing a petition with this Court expired on August 1, 2001.1
The petition was received and filed by this Court on August 10,
2001, 99 days after the mailing of the notice of deficiency.2
The petition was mailed to the Court in a properly addressed
envelope bearing a privately metered postmark dated August 1,
2001, and showing the point of origin as Oakland, California.
Affixed to the envelope is a certified mail sticker. Neither the
envelope nor the certified mail sticker bears any U.S. Postal
Service postmark. Additionally, the sender’s receipt does not
contain a U.S. Postal Service postmark.
Respondent contends that this case should be dismissed
because the petition was not filed within the time prescribed by
section 6213(a) or section 7502.3 Petitioners claim that their
petition is timely because the envelope containing the petition
bears a timely postmark date and is properly addressed with the
correct postage.
This Court’s jurisdiction to redetermine a deficiency
depends upon the issuance of a valid notice of deficiency and a
1
Aug. 1, 2001, was a Wednesday and was not a legal holiday
in the District of Columbia.
2
Aug. 10, 2001, was a Friday and was not a legal holiday in
the District of Columbia.
3
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at all relevant times, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
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timely filed petition. Rule 13(a); Monge v. Commissioner, 93
T.C. 22, 27 (1989); Abeles v. Commissioner, 91 T.C. 1019, 1025
(1988); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).
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. Sec. 6213(a). The failure to file within
the prescribed period requires that the petition be dismissed for
lack of jurisdiction. Estate of Rosenberg v. Commissioner, 73
T.C. 1014, 1016-1017 (1980).
Section 7502 and the regulations thereunder provide that, in
certain circumstances, a timely mailed petition will be treated
as though it were timely filed. Section 301.7502-1(c)(2),
Proced. & Admin. Regs., provides:
If the document * * * is sent by U.S. certified mail
and the sender’s receipt is postmarked by the postal
employee to whom the document * * * is presented, the
date of the U.S. postmark on the receipt is treated as
the postmark date of the document. Accordingly, the
risk that the document will not be postmarked on the
day that it is deposited in the mail may be eliminated
by the use of * * * certified mail.
In the instant case, petitioners sent their petition by certified
mail. However, the regulation does not apply because the
sender’s receipt4 was never presented to any postal employee and
4
A sender’s receipt to which sec. 301.7502-1(c)(2), Proced.
& Admin. Regs., refers is part of a certified mail form. Denman
v. Commissioner, 35 T.C. 1140, 1142 (1961); Brown v.
Commissioner, T.C. Memo. 1982-165. The receipt is filled in by
the sender, and, upon request, it will be postmarked by the
(continued...)
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was not postmarked. See Denman v. Commissioner, 35 T.C. 1140,
1144 (1961); Peterson v. Commissioner, T.C. Memo. 2001-11; Brown
v. Commissioner, T.C. Memo. 1982-165. In this circumstance,
petitioners cannot avail themselves of the safe harbor provided
by the use of certified mail.
Section 7502(a) provides that if the envelope or wrapper
containing the petition bears a timely postmark made by the U.S.
Postal Service, and certain other requirements are met, the
postmark date will be deemed the filing date. However, where the
postmark is not made by the U.S. Postal Service, the timely
mailing/timely filing rule shall apply “only if and to the extent
provided by regulations prescribed by the Secretary.” Sec.
7502(b).
Where the postmark in question is made by a private postage
meter, section 301.7502-1(c)(1)(iii)(B), Proced. & Admin. Regs.,
applies. This regulation provides that privately metered mail
qualifies for the timely mailing rule of section 7502 if the
postmark bears a timely date and the document is received no
4
(...continued)
postal employee and returned to the sender at the time of
mailing. Denman v. Commissioner, supra; Brown v. Commissioner,
supra. Certified mail does not have to be processed by a postal
employee prior to mailing. Brown v. Commissioner, supra. If a
sender does not desire to have his receipt postmarked, he can
attach the certified mail sticker to the article to be mailed,
retain the sender’s receipt with whatever entries he wishes to
make on it, and place the article in a postal collection box.
Denman v. Commissioner, supra at 1143; Brown v. Commissioner,
supra.
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later than the time ordinarily required for the delivery of a
document postmarked at the same point of origin by the U.S. Post
Office on the last day for its filing. If such document is not
delivered within such time, a taxpayer seeking to rely on the
timely mailing/timely filing rule must establish that the
document was actually deposited in the mail on or before the last
date prescribed for filing, that the delay in delivery was
attributable to delay in the transmission of the mail, and the
cause of the delay. Lindemood v. Commissioner, 566 F.2d 646,
648-649 (9th Cir. 1977), affg. per curiam T.C. Memo. 1975-195;
Fishman v. Commissioner, 51 T.C. 869, 872-873 (1969), affd. per
curiam 420 F.2d 491 (2d Cir. 1970); sec. 301.7502-(c)(1)(iii)(B),
Proced. & Admin. Regs.
In the instant case, the petition was received by the Court
9 days after the last date prescribed for filing. Since the
privately metered postmark on the envelope is August 1, 2001, 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 point of
origin for these purposes is Oakland, California. Whether a
petition has been received within the normal mailing period is a
factual question, and petitioners bear the burden of proving that
the 9-day delivery time is within the normal mailing period for
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mail sent from Oakland, California, to Washington, D.C. See
Stotter v. Commissioner, 69 T.C. 896, 898 (1978); Fishman v.
Commissioner, supra at 873 (1969); Chang v. Commissioner, T.C.
Memo. 1998-298; Castro v. Commissioner, T.C. Memo. 1994-530.5
Petitioners claim that they relied on statements in the
notice of deficiency that a petition will be considered timely
filed if the postmark date on the envelope containing the
petition falls within the prescribed 90-day period. Petitioners
contend that they mailed their petition on August 1, 2001, and
that certified mail takes longer to deliver than regular mail.
Petitioners introduced no evidence to establish the normal
delivery time for mail sent from Oakland, California, to
Washington, D.C. They have not produced evidence in support of
their contention that certified mail takes longer to deliver than
noncertified mail or otherwise demonstrated that a 9-day delivery
time is within the normal mailing period.6 Thus, petitioners
5
In certain circumstances, if the taxpayer introduces
credible evidence with respect to any factual issue relevant to
ascertaining the proper tax liability, sec. 7491 places the
burden of proof on respondent. Sec. 7491(a); Rule 142(a)(2).
Sec. 7491 is effective with respect to court proceedings arising
in connection with examinations commencing after July 22, 1998.
Internal Revenue Service Restructuring and Reform Act of 1998,
Pub. L. 105-206, sec. 3001(c)(2), 112 Stat. 726. Petitioners do
not contend, nor is there evidence, that their examination
commenced after July 22, 1998, or that sec. 7491 applies in this
case.
6
At the hearing, respondent attempted to introduce into
evidence a declaration from a U.S. postal employee as to the
(continued...)
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have not established that their petition was received no later
than the time ordinarily required for the delivery of a petition
postmarked at the same point of origin by the U.S. Post Office on
the last day for its filing.7 Accordingly, petitioners’ petition
will be deemed untimely unless they can establish that the
petition was actually deposited in the mail on or before August
1, 2001, that the delay in delivery was attributable to delay in
the transmission of the mail, and the cause of the delay.
6
(...continued)
normal delivery time for mail sent from Oakland, California, to
Washington, D.C. We sustained petitioners’ hearsay objection to
the declaration.
7
We note that case law indicates that a 9-day delivery time
has not historically been within the normal mailing period for
mail sent from Oakland, California to Washington, D.C. See,
e.g., Lindemood v. Commissioner, 566 F.2d 646, 647 (9th Cir.
1977) (normal delivery time from San Francisco, California, to
Washington, D.C., is 3 days for first class mail), affg. per
curiam T.C. Memo. 1975-195; Kirschenbaum v. Commissioner, T.C.
Memo. 2001-102 (normal delivery time from Tarzana, California, to
Washington, D.C., is 3-5 days); Fujioka v. Commissioner, T.C.
Memo. 1999-316 (citing Lindemood v. Commissioner, supra, for
proposition that normal delivery time from San Francisco,
California, to Washington, D.C., is approximately 3 days); Chang
v. Commissioner, T.C. Memo. 1998-298 (normal delivery time from
San Jose, California, to Washington, D.C., is 3 days for first
class mail and 5-7 days for third class mail); Koenig v.
Commissioner, T.C. Memo. 1998-215 (document received 8 days after
postage meter date exceeded normal mailing time when mailed from
Santa Cruz, California, to Washington, D.C.), affd. without
published opinion 221 F.3d 1348 (9th Cir. 2000); Gomez v.
Commissioner, T.C. Memo. 1996-561 (normal delivery time from Los
Angeles, California, to Washington, D.C., is 3 days); Berdell v.
Commissioner, T.C. Memo. 1991-529 (parties agreed that normal
mailing time from California to Washington, D.C., was 3 days).
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Petitioners have not argued or presented evidence that there
was a delay in delivery attributable to delay in the transmission
of the mail, and the cause of the delay. Consequently,
petitioners have failed to establish that they qualify for the
timely mailing/timely filing rule of section 7502. Accordingly,
we hold that the petition was not timely filed.
An appropriate order of
dismissal for lack of
jurisdiction will be entered.