T.C. Memo. 2002-218
UNITED STATES TAX COURT
LANDER GIBSON, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 615-02. Filed August 27, 2002.
Lander Gibson, pro se.
Edward D. Fickess, for respondent.
MEMORANDUM OPINION
VASQUEZ, Judge: This case is before the Court on
respondent’s motion to dismiss for lack of jurisdiction on the
ground that the petition was not filed within the time prescribed
by section 6213(a) or 7502.1
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
(continued...)
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Background
At the time he filed his petition and amended petition,
petitioner resided in Syracuse, New York.
In the notice of deficiency, dated September 4, 2001,
respondent determined a deficiency in petitioner’s 1999 Federal
income tax of $5,028.2 The notice of deficiency advised
petitioner that he had 90 days from the date of the notice to
file a petition in the Tax Court for a redetermination of the
deficiency. The notice of deficiency stated that the last date
to petition the Tax Court was December 3, 2001.
Petitioner mailed a petition properly addressed to the Court
in late November 2001 at a post office in the Carousel shopping
mall in Syracuse after he finished work. The Court received the
petition on January 2, 2002, which is 120 days after the mailing
of the notice of deficiency. In November and December 2001 and
January 2002, the Court was experiencing significant anthrax-
related mail delays following the closure of the post office
serving the Court. In January 2002, the Court was still
receiving mail from November and December 2001. All of the
regular U.S. mail received by the Court was subject to
irradiation treatment. As a result of the irradiation treatment,
1
(...continued)
are to the Tax Court Rules of Practice and Procedure.
2
Amounts are rounded to the nearest dollar.
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the postmark on the envelope in which the petition arrived was
illegible.3
On April 12, 2002, respondent filed a motion to dismiss for
lack of jurisdiction on the ground that the petition was not
timely filed. On May 10, 2002, petitioner objected to the
granting of this motion.
Discussion
Our 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)(1); 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 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).
3
We take judicial notice of the facts regarding the mail
delivery service to the Court. See also “Mail Delays Addressed”,
15 Daily Tax Rept. (BNA) G-2 (Jan. 23, 2002).
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Section 7502(a)(1) 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 if the postmark date on an
envelope falls within the prescribed period or on or before the
prescribed date.
Petitioner did not challenge the validity of the notice of
deficiency. Our jurisdiction depends on whether the petition was
timely filed.
The petition was received and filed by this Court more than
90 days after the mailing of the notice of deficiency. As noted
above, the Court was experiencing delays in U.S. mail delivery
when the petition was mailed. Additionally, the postmark was
illegible by the time it was received by the Court because of the
irradiation treatment.
If the postmark is illegible, the taxpayer may offer
extrinsic evidence to establish what was or should have been the
actual date of the postmark. Sylvan v. Commissioner, 65 T.C.
548, 553 (1975); Molosh v. Commissioner, 45 T.C. 320, 322 (1965).
The taxpayer bears the burden of proving timely mailing. Sec.
301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.
Petitioner, through testimony, sought to establish that he
mailed his petition timely and that the postmark, although
illegible, was timely. See Mason v. Commissioner, 68 T.C. 354,
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357 (1977) (finding on the basis of the taxpayer’s testimony that
he mailed his petition timely). We found petitioner to be
forthright and candid and his testimony to be credible.
Petitioner testified that, in mailing the petition, he was
“rushing” to make sure he “beat the time several days ahead”, and
the post office assured him that the petition would arrive “on
time”. Petitioner testified that he mailed the petition return
receipt requested and made sure the receipt was stamped at the
post office. Once the petition arrived at the Court, however, he
testified that he did not think to save the receipt because he
did not think it was important once he knew that the Court had
received the petition. Further, petitioner provided credible
testimony as to where and when the petition was mailed. We
conclude that petitioner timely mailed his petition.
Accordingly, respondent’s motion to dismiss for lack of
jurisdiction will be denied.
To reflect the foregoing,
An appropriate order
will be issued.