T.C. Memo. 2009-241
UNITED STATES TAX COURT
DEARON AND ROCHELLE L. MADDOX, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1809-09. Filed October 26, 2009.
Allan C. Miles, for petitioners.
Matthew A. Williams, for respondent.
MEMORANDUM OPINION
GERBER, Judge: Respondent moved to dismiss this case on the
ground that the petition was not filed within 90 days of the
mailing of the notice of deficiency. Petitioners counter that
the petition was timely mailed even though not received by the
Court within the 90-day period. We must decide whether the
petition was timely mailed.
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All section references are to the Internal Revenue Code, and
all Rule references are to the Tax Court Rules of Practice and
Procedure, unless otherwise indicated.
Background
Respondent, on October 7, 2008, mailed a notice of
deficiency to petitioners for tax years 2005, 2006, and 2007. A
petition signed by petitioners’ attorney, Allan C. Miles
(Attorney Miles), and dated December 17, 2008, was received and
filed by this Court on January 23, 2009, which was 108 days after
the mailing of the notice of deficiency. The envelope in which
the petition was received was properly addressed to this Court
and had sufficient postage. The U.S. Postal Service (USPS)
cancellation stamps appear on the envelope, but the exact date of
cancellation is illegible. January 5, 2009, was the 90th day
after the mailing of the notice of deficiency. On March 11,
2009, respondent’s motion to dismiss for lack of jurisdiction was
filed.
Attorney Miles “mailed” the petition by placing it in the
mailroom in his office building before 4 p.m. on Friday, January
2, 2009. The mailroom was locked, and only building tenants and
the USPS had access. The outgoing mail was placed in a USPS
basket. Each weekday, Monday through Friday, the USPS
would pick up the mail at approximately 4 p.m. On Saturdays the
pickup was at approximately 12 p.m.
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Discussion
A Tax Court petition must be filed within 90 days after the
notice of deficiency is mailed. Sec. 6213(a). In this case the
90th day fell on January 5, 2009. If a petition is received by
the Court after the 90-day period, then the postmark date, if
timely, can be deemed the date of delivery. Sec. 7502.
Normally, the postmark placed on the envelope in which the
petition has been mailed is accepted as evidence of timely
mailing and hence timely filing. In this case, however, the
postmark is illegible, and accordingly, petitioners have the
burden of proving that their petition was mailed on or before
January 5, 2009. See sec. 301.7502-1(c)(1)(iii)(A), Proced. &
Admin. Regs.
This 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); Levitt v. Commissioner,
97 T.C. 437, 441 (1991). Section 6213(a) provides that a
petition for redetermination of a deficiency determined by the
Commissioner is timely filed if it is filed within 90 days after
a notice of deficiency is mailed (or 150 days if the notice is
mailed to a taxpayer outside the United States). Petitioners’
petition was received by the Court on January 23, 2009. The 90-
day period had expired on January 5, 2009. A petition received
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and filed by the Court after the expiration of the 90-day period
may be deemed timely filed if it was timely mailed.
The general rule is that the date of a USPS postmark, if
within the 90-day period, is deemed to be the delivery date.
Sec. 7502(a). For this general rule to apply, however, a
taxpayer must have mailed the document at issue in a properly
addressed envelope, postage prepaid, and postmarked by the USPS
within the prescribed period or on or before the last date for
the filing, including any extensions granted for filing. See
sec. 301.7502-1(c)(1), Proced. & Admin. Regs.
The Court did not receive the envelope in which the petition
was mailed until 18 days after the expiration of the 90-day
period for filing. Because petitioners’ petition was received
and filed outside the prescribed period, bearing an illegible
USPS postmark, it will be deemed timely filed only if petitioners
can show the date that the postmark was made and that the date
was within the 90-day period.
It is well established in this Court that a taxpayer may
establish the date of mailing a petition if the postmark date is
illegible or missing. Mason v. Commissioner, 68 T.C. 354 (1977);
Sylvan v. Commissioner, 65 T.C. 548 (1975). Extrinsic evidence
may be used to prove timely mailing of a document.
Petitioners have shown by credible testimony that the
envelope containing the petition was placed in the USPS mail
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before the expiration of the 90-day period. They have also shown
that the envelope was postage prepaid and had a USPS
cancellation. The record also reveals that the envelope was
received by the Court and that the petition was filed.
Accordingly, petitioners have shown that the petition was timely
placed in the USPS mail and timely postmarked (albeit illegibly).
See Mason v. Commissioner, supra at 356-357.
Respondent attempted to offer an affidavit of a USPS
employee that purported to explain “normal” delivery times for
USPS mail. The Court sustained petitioners’ objection to the
affidavit on hearsay grounds and because petitioners would not be
able to cross-examine the affiant. Accordingly, we conclude that
the petition was timely postmarked and timely mailed and, hence,
timely filed.
To reflect the foregoing,
An order will be issued
denying respondent’s motion to
dismiss for lack of jurisdiction.