T.C. Memo. 2002-170
UNITED STATES TAX COURT
JUAN EL KHOURI AND KITTY HUNTER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12873-01. Filed July 12, 2002.
Juan El Khouri and Kitty Hunter, pro sese.
Charles A. Hall, Judy Wall, and Minakshi Tyagi-Jayasinghe,
for respondent.
MEMORANDUM OPINION
DAWSON, Judge: This case was assigned to Special Trial
Judge Robert N. Armen, Jr., pursuant to the provisions of section
7443A(b)(5) and Rules 180, 181, and 183.1 The Court agrees with
1
Unless otherwise indicated, 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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and adopts the opinion of the Special Trial Judge, which is set
forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
ARMEN, Special Trial Judge: This matter is before the Court
on respondent’s motion to dismiss for lack of jurisdiction, as
supplemented. Respondent contends that the Court lacks
jurisdiction on the ground that the petition was not timely filed
pursuant to sections 6213(a) and 7502. As explained in detail
below, we shall grant respondent’s motion to dismiss, as
supplemented.
Background
On July 6, 2001, respondent issued a joint notice of
deficiency to petitioners. In the notice, respondent determined
a deficiency in petitioners’ Federal income tax for 1998 in the
amount of $96,086 and an addition to tax under section 6651(a)(1)
for failure to timely file in the amount of $13,452.60. The
notice of deficiency was sent to petitioners by certified mail at
two separate addresses and a copy of the notice was sent by
regular, first-class mail to Rod Mirand, identified as
petitioners’ authorized representative.
On October 10, 2001, the Court received and filed a joint
petition for redetermination in which petitioners challenged
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respondent’s deficiency determinations.2 The petition is dated
October 5, 2001. The petition arrived at the Court in an
envelope bearing U.S. Postal Service certified mail No. 7001 0360
0001 7533 5423 and two postmarks. One of the postmarks is a
private postmeter postmark showing Bellflower, California, as the
postal locale, and the other is a U.S. Postal Service postmark
showing Long Beach, California, as the postal locale. Both
postmarks are dated October 5, 2001.
As indicated, respondent filed a motion to dismiss for lack
of jurisdiction on the ground that the petition was not timely
filed. Petitioners filed an objection to respondent’s motion to
dismiss, alleging that they initially mailed a petition to the
Court on September 15, 2001, and, after they received no response
from the Court, they mailed a second petition to the Court on
October 4, 2001.3 Petitioners’ objection suggests that the
2
The body of the petition, which is essentially a letter
to the Tax Court, reads as follows:
Tax Court;
This letter represents a formal request for petition
forms needed to file with the court.
See attached “Notice Of Deficiency” letter dated July
6, 2001, giving us the 90 days to file the petition
forms.
Please send forms to: Juan El Khouri
[address]
3
In response to petitioners’ allegation regarding the
(continued...)
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delivery of their first petition may have been impeded because of
the terrorist attacks on September 11, 2001.
Respondent filed a response to petitioners’ objection,
asserting that petitioners failed to demonstrate that the
delivery of the petition purportedly mailed to the Court on
September 15, 2001, was impeded because of the events of
September 11, 2001.4 Respondent also argued that the U.S. Postal
Service postmark date of October 5, 2001, appearing on the
envelope in which the petition was delivered to the Court,
conclusively establishes that the petition was not mailed within
the statutory 90-day filing period. See sec. 301.7502-
1(c)(1)(iii)(A), Proced. & Admin. Regs. (regarding U.S. Postal
Service postmarks); see also sec. 301.7502-1(c)(1)(iii)(B),
Proced. & Admin. Regs. (regarding private postmeter postmarks).
The Court subsequently issued an Order directing petitioners
to provide the Court with any documentation they might have
3
(...continued)
mailing of a petition on Sept. 15, 2001, the Court searched its
records but was unable to find any indication of either a
petition filed by petitioners before Oct. 10, 2001, or any
correspondence received from them before that date.
We note that petitioners’ allegation regarding the mailing
of the petition on Oct. 4, 2001, is inconsistent not only with
the postmark dates on the envelope containing the petition but
also with the date on the petition itself.
4
We note that mail service to the Court was seriously
disrupted by the anthrax attacks in Washington, D.C., last fall,
but that such attacks did not occur until mid-October 2001.
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showing that they mailed a petition to the Court on September 15,
2001, and, if available, a copy of U.S. Postal Service Form 3800,
Certified Mail Receipt, for certified mail item No. 7001 0360
0001 7533 5423. Petitioners did not respond to this Order.
This matter was called for hearing at the Court’s motions
session held in Washington, D.C., on March 27, 2002. Counsel for
respondent appeared at the hearing and offered argument in
support of respondent’s motion to dismiss. There was no
appearance by or on behalf of petitioners at the hearing, nor did
petitioners file any statement pursuant to Rule 50(c), the
applicability of which was brought to their attention by the
Court in its Order calendaring respondent’s motion for hearing.
Following the hearing, the Court directed respondent to file
a supplement to his motion to dismiss addressing the question
whether section 7508A, or any public notices issued pursuant to
that section after September 11, 2001, would provide relief to
petitioners with regard to the timeliness of their petition.
Respondent complied with the Court’s Order and filed a supplement
to his motion, asserting that petitioners are not eligible for
relief under section 7508A with regard to the petition filed in
this case.
This matter was called for further hearing at the Court’s
motions session held in Washington, D.C., on May 8, 2002.
Counsel for respondent appeared at the hearing and offered
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argument in support of the motion to dismiss, as supplemented.
In particular, counsel argued that petitioners are not entitled
to relief under section 7508A and that the petition in this case
should be dismissed on the ground that it was not timely filed.
There was no appearance by or on behalf of petitioners at the
hearing, nor did petitioners file any statement pursuant to Rule
50(c). However, after the hearing, petitioners filed an
objection to respondent’s motion in which they state that the
petition mailed to the Court on September 15, 2001, was sent by
regular, first-class mail and that they are therefore unable to
provide the Court with documentary proof of mailing.
Discussion
The Tax Court is a court of limited jurisdiction. The
Court’s jurisdiction to redetermine a deficiency depends on the
issuance of a valid notice of deficiency and a timely filed
petition. 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’s “last known address”. Sec. 6212(b);
Frieling v. Commissioner, 81 T.C. 42, 52 (1983). The taxpayer,
in turn, has 90 days (or 150 days if the notice is addressed to a
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person outside of the United States) from the date that the
notice of deficiency is mailed to file a petition in this Court
for a redetermination of the deficiency. Sec. 6213(a).
Section 7502(a), the so-called timely mailing/timely filing
rule, provides that, in certain circumstances, a timely mailed
petition will be treated as though it were timely filed. Section
7502(a)(2) provides that the timely mailing/timely filing rule
applies only if the postmark date on an envelope falls within the
prescribed period on or before the prescribed date.
Petitioners did not challenge the validity of the notice of
deficiency. We observe that the notice was mailed to petitioners
at two separate addresses and that a copy of the notice was sent
to petitioners’ authorized representative. Accordingly, it
appears that the notice was mailed to petitioners at their last
known address. See sec. 6212(b)(1). Under the circumstances,
the issue for decision is whether the petition was timely filed.
The record in this case demonstrates that the petition was
not filed within the 90-day period prescribed in section 6213(a).
The record shows that respondent mailed the notice of deficiency
to petitioners on July 6, 2001. Consequently, the 90-day filing
period expired on Thursday, October 4, 2001–-a date that was not
a legal holiday in the District of Columbia. The petition was
received and filed by the Court on October 10, 2001, 6 days after
the expiration of the 90-day period. Moreover, the petition was
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dated October 5, 2001, and it arrived at the Court in an envelope
bearing both a U.S. Postal Service postmark date and a private
postmeter postmark date of October 5, 2001–-a date that was 91
days after the mailing of the notice of deficiency. It follows
that the petition was neither mailed to the Court nor filed
within the 90-day filing period prescribed in section 6213(a) or
section 7502(a).
The only remaining question is whether petitioners are
entitled to relief because of the events of September 11, 2001.
Section 7508A, titled “Authority To Postpone Certain Tax-Related
Deadlines By Reason Of Presidentially Declared Disaster”,
provides in pertinent part:
SEC. 7508A(a). In General.–-In the case of a
taxpayer determined by the Secretary to be affected by
a Presidentially declared disaster (as defined by
section 1033(h)(3)), the Secretary may prescribe
regulations under which a period of up to 120 days may
be disregarded in determining, under the internal
revenue laws, in respect of any tax liability
(including any penalty, additional amount, or addition
to the tax) of such taxpayer--
(1) whether any of the acts described in
paragraph (1) of section 7508(a) were performed
within the time prescribed therefor * * *.[5]
5
Sec. 7508A was amended by the Victims of Terrorism Tax
Relief Act of 2001, Pub. L. 107-134, sec. 112(a), 115 Stat. 2427,
2433. The amendment confers authority to postpone certain
deadlines by reason of terroristic or military actions and
extends the period that may be disregarded from 120 days to 1
year. The amendment applies to disasters and terroristic or
military actions occurring on or after Sept. 11, 2001, with
respect to any action of the Secretary of the Treasury, the
Secretary of Labor, or the Pension Benefit Guaranty Corp.
(continued...)
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Section 7508(a)(1)(C) and (K) lists “Filing a petition with
the Tax Court for redetermination of a deficiency” and “Any other
act required or permitted under the internal revenue laws
specified in regulations prescribed under this section by the
Secretary”, respectively, as acts with regard to which the
Secretary may postpone the time for performance.6 Regarding acts
contemplated by section 7508(a)(1)(K), section 301.7508-1(a),
Proced. & Admin. Regs., provides that the period of time that may
be disregarded applies to acts specified in a revenue ruling,
revenue procedure, notice, or other guidance published in the
Internal Revenue Bulletin.
Section 301.7508A-1(c)(1), Proced. & Admin. Regs., lists the
acts performed by “affected taxpayers” the time for the
performance of which may be postponed. Included within this list
of acts are “Filing a petition with the Tax Court” and “Any other
act specified in a revenue ruling, revenue procedure, notice,
announcement, news release, or other guidance published in the
Internal Revenue Bulletin”. Sec. 301.7508A-1(c)(1)(iv), (vii),
Proced. & Admin. Regs.
5
(...continued)
occurring on or after Jan. 23, 2002. Id. sec. 112(f), 115 Stat.
2435.
6
Section 7508(a)(1)(K) was amended by the Victims of
Terrorism Tax Relief Act of 2001, Pub. L. 107-134, sec. 112(b),
115 Stat. 2427, 2434, by striking the phrase “in regulations
prescribed under this section”. The amendment applies as
described supra note 5.
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Section 301.7508A-1(d)(1), Proced. & Admin. Regs., defines
seven categories of “affected taxpayers” for purposes of section
301.7508A-1(c)(1), Proced. & Admin. Regs. Included among these
categories are any individual whose principal residence or
principal place of business is located in a covered disaster
area, a relief worker who is assisting in a covered disaster
area, any individual whose principal residence or principal place
of business is not located in a covered disaster area but whose
tax records are maintained in such an area, and the spouse of an
affected taxpayer (but solely with regard to a joint return). A
“covered” disaster area means a Presidentially declared disaster
area to which the IRS has determined that relief under section
7508A applies. Sec. 301.7508A-1(d)(2), Proced. & Admin. Regs.
Finally, section 301.7508A-1(e), Proced. & Admin. Regs., provides
as follows:
(e) Notice of postponement of certain acts. If any
tax-related deadline is postponed under section 7508A
and this section, the IRS will publish a revenue
ruling, revenue procedure, notice, announcement, news
release, or other guidance published in the Internal
Revenue Bulletin * * * describing the acts postponed,
the number of days disregarded with respect to each
act, the time period to which the postponement applies,
and the location of the covered disaster area.
Guidance under this paragraph (e) will be published as
soon as practicable after the declaration of a
Presidentially declared disaster.
Following the events of September 11, 2001, the Commissioner
promptly issued a series of Notices announcing the relief
available to taxpayers affected by the terrorist attacks.
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Notice 2001-61
In Notice 2001-61, 2001-40 I.R.B. 305, released September
15, 2001, the Commissioner announced relief under section 7508A,
section 6081 (providing for extensions of time for filing
returns), and section 6161 (providing for extension of time for
paying tax) for taxpayers affected by the terrorist attacks on
September 11, 2001. The Notice acknowledges that President
George W. Bush declared five New York counties and Arlington
County, Virginia, as Federal disaster areas. As a result, those
areas qualified as “covered disaster areas” and taxpayers
residing in those areas qualified as “affected taxpayers” under
section 7508A. Notice 2001-61 states that the Commissioner
determined that other specified taxpayers would be considered
affected taxpayers, regardless of where they resided, including
victims of the crashed airliners, relief workers assisting in a
covered disaster area or in Pennsylvania, and taxpayers whose
place of employment was located in the declared disaster areas.
Notice 2001-61 grants six particular types of relief. In
particular, the notice grants a 120-day postponement of time to
“affected taxpayers” to perform the acts (other than those
specifically addressed in the notice) described in section
301.7508A-1(c)(1), Proced. & Admin. Regs., which acts
specifically include the filing of a petition with the Tax Court.
The postponement applies to acts required to be performed within
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the period beginning on September 11, 2001, and ending on
November 30, 2001.
Notice 2001-63
In Notice 2001-63, 2001-40 I.R.B. 308, released September
15, 2001, the Commissioner announced additional relief under
sections 7508A, 6081, and 6161, for all taxpayers regardless of
their location. In particular, Notice 2001-63 states in
pertinent part:
The Internal Revenue Service has determined that the
due date for all federal tax obligations falling
between September 10, 2001, and September 24, 2001, is
postponed to September 24, 2001. This postponement of
time covers the filing of returns and claims for
refund, the payment of tax (including estimated tax
payments), making elections, and filing any other
Federal tax documents. The postponement does not apply
to deposits of federal taxes. * * * [Emphasis added.]
Notice 2001-68
Finally, in Notice 2001-68, 2001-47 I.R.B. 504, released
November 10, 2001, the Commissioner announced additional relief
to supplement the relief granted in Notice 2001-61. As relevant,
Notice 2001-68 states in pertinent part:
C. ADDITIONAL GRANT OF RELIEF
* * * * * * *
(2) Under paragraph (4) of the Grant of Relief section
of Notice 2001-61, the IRS granted to all affected
taxpayers a 120-day postponement of time to perform the
acts described in section 301.7508A-1(c)(1), [Proced. &
Admin. Regs.,] if the last day to perform the act fell
within the period beginning on September 11, 2001, and
ending on November 30, 2001. One of these acts is the
filing of any Tax Court petition. Under this notice,
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the relief provided by paragraph 4 is expanded as
follows. If the last date for filing any Tax Court
petition would otherwise be on or after December 1,
2001, and on or before December 31, 2001, the last date
for filing the petition is postponed by 60 days under
section 7508A.
In short, Notice 2001-68 expanded the period during which an
affected taxpayer would be permitted to file a petition with the
Court.
Based upon our review of section 7508A, section 301.7508A-1,
Proced. & Admin. Regs., and Notices 2001-61, 2001-63, and 2001-
68, we conclude that petitioners are not entitled to relief with
regard to the late-filed petition in this case. Petitioners, who
are residents of southern California, have not alleged or shown
that they are “affected taxpayers” within the meaning of section
301.7508A-1(d)(1)(i)-(vi), Proced. & Admin. Regs., or Notices
2001-61 and 2001-68. Moreover, the generic relief extended to
all taxpayers in Notice 2001-63, see section 301.7508A-
1(d)(1)(vii), Proced. & Admin. Regs., is of no benefit to
petitioners. The latter Notice states that the deadline for all
Federal tax obligations falling between September 10, 2001, and
September 24, 2001, is postponed to September 24, 2001. Because
the deadline for filing a timely petition in this case expired on
October 4, 2001, it follows that such deadline is not postponed
under Notice 2001-63.
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Consistent with the preceding discussion, we shall grant
respondent’s motion to dismiss for lack of jurisdiction, as
supplemented.
To reflect the foregoing,
An order will be entered
granting respondent’s motion to
dismiss for lack of jurisdiction
as supplemented.