dissenting: I respectfully dissent. The issue in this case involves the jurisdiction of this Court and therefore has added importance. This issue has been before various courts on numerous occasions since Congress first enacted section 7502 in the 1954 Code, and the courts have consistently held that the sine qua non of section 7502(a) is a timely postmark date. In my view the majority opinion overrules or undermines that entire line of cases and attempts to rewrite section 7502(a). The result is a victory for the petitioner in this one case, and the disavowal of the criteria for determining timely filing heretofore established by the law, the regulations, and a long line of court decisions, with the substitution of nothing definitive in its place.
A petition to the Tax Court for redetermination of a deficiency must be filed with this Court within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed to the taxpayer. Sec. 6213. Timely filing of the petition is jurisdictional, not procedural, Gradsky v. Commissioner, 218 F. 2d 703 (6th Cir. 1954), and failure to file within the prescribed period requires that the petition be dismissed for lack of jurisdiction. Angelo Vitale, 59 T.C. 246 (1972); Estate of Frank Everest Moffat, 46 T.C. 499 (1966); Bloch v. Commissioner, 254 F. 2d 277 (9th Cir. 1958); Rich v. Commissioner, 250 F. 2d 170 (5th Cir. 1957). Ordinarily “A paper is filed when it is delivered to the proper official and by him received to be kept on file.” Poyner v. Commissioner, 81 F. 2d 521 (5th Cir. 1936). Thus, prior to enactment of section 7502 in the Internal Revenue Code of 1954, a petitioner who wished to file his petition by mail had to send it sufficiently in advance of the expiration of the filing period to reach the Court before the due date. Thus the time available to petitioners to prepare their petitions varied depending on the time required for mail from their residences to reach Washington, D. C.; moreover, the petitioner also ran the risk of delays in the mail. To cope with this inequity some courts, relying on the presumption of timely receipt after timely mailing, found that timely mailing would suffice. Arkansas Motor Coaches v. Commissioner, 198 F. 2d 189 (8th Cir. 1952); Central Paper Co. v. Commissioner, 199 F. 2d 902 (6th Cir. 1952); Detroit Automotive Products Corp. v. Commissioner, 203 F. 2d 785 (6th Cir. 1953).1 Recognizing the inequities and the uncertainty of the measures being taken by the courts to adjust them, Congress enacted section 7502 to alleviate the hardships resulting from the failure of the mail to function properly and the inequities resulting from the differences in geographical location of petitioners. See Bloch v. Commissioner, supra; Wells Marine, Inc. v. Renegotiation Board, 54 T.C. 1189, 1191-1192 (1970).
Section 75022 provides exceptions to the general rule that a petition will not be considered timely filed unless it was timely delivered to the Tax Court. As related to a petition filed in the Tax Court, subsection (a)(1) provides that if the petition is delivered to the Tax Court by United States mail in an envelope properly addressed, postage prepaid, “the date of the United States postmark stamped on the cover” in which such petition is mailed “shall be deemed to be the date of delivery” of the petition to the Court, and hence the filing date; provided “the postmark date” falls within the prescribed period for filing the petition. Paragraph (b) provides that the section shall apply in the case of postmarks not made by the U.S. Post Office only if and to the extent provided by regulations prescribed by the Secretary.
Subsection (c) establishes another exception to the general rule. Paragraph (!) provides that, for purposes of this section, if the petition is sent to the Tax Court by U.S. registered mail, such registration shall be prima facie evidence that the petition was delivered to the Tax Court, and the date of registration shall be deemed the postmark date. Paragraph (2) authorizes the Secretary to provide by regulations the extent to which the provisions of paragraph (1) shall apply to certified mail.
Congress thus provided specific means by which a taxpayer-petitioner can avoid the risk of both delay in the mails and failure of the post office to timely postmark envelopes deposited in mailboxes.
Section 301.7502-1, Proced. & Admin. Regs., pertinent parts of which are reproduced in the footnote,3 deals with the provisions of section 7502. Paragraph (a) notes that if the requirements of the section are met a document shall be deemed filed on the date of the postmark stamped on the cover in which such document is mailed. Paragraph (c) relates the mailing requirements to make section 7502 applicable. The document must be contained in an envelope or appropriate wrapper properly addressed to the agency with which it is to be filed, and it must be deposited within the prescribed time in the U.S. mail with sufficient postage prepaid. Subparagraph (l)(iii)(a), which pertains most directly to the issue with which we are concerned, see footnote 3 for complete text, provides in substance, that if the postmark on the envelope is made by the U.S. Post Office, such postmark must bear a date on or before the due date for filing. If the postmark does not bear such date, the document will be considered not to be timely filed, regardless of when the document is deposited in the mail. Accordingly, the sender who relies on section 7502 assumes the risk that the postmark will bear a timely date, unless registered or certified mail is used. It also provides that if the postmark on the envelope is not legible, the petitioner has the burden of proving the time when the postmark was made.
Subdivision (iii)(b) sets forth the rather detailed requirements for reliance on a postmark made other than by the U.S. mail, such as privately metered mail.
Subparagraph (2) of paragraph (c) sets forth the requirements for reliance on registered and certified mail. With respect to certified mail, it is provided that 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 such receipt shall be 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 overcome by the use of registered or certified mail.”
The wording and meaning of section 7502 is explicit and clear, except with regard to certified mail and mail bearing a postmark other than a U.S. Post Office postmark, with respect to which the law specifically authorized the Secretary to implement by regulation. The regulation is also explicit and clear and appears to be a valid interpretation and implementation of the law. Under both the law and the regulation there can be little doubt that the date on the U.S. postmark is the sine qua non for the applicability of section 7502, see Jacob L. Rappaport, 55 T.C. 709 (1971), affd. 456 F. 2d 1335 (2d Cir. 1972), and, except in the case of an illegible U.S. postmark, see sec. 301.7502-l(c)(l)(iii)(a), Proced. & Admin. Regs., and a postmark other than one made by the U.S. Post Office, see P. P. Leventis, Jr., 49 T.C. 353 (1968), and Irving Fishman, 51 T.C. 869 (1969), the date on which the document (petition) is deposited in the mail is immaterial.
All of the published opinions of this Court and other courts involving the application of section 7502 that we have found stand, either directly or indirectly, for the above proposition.4
In Rich v. Commissioner, supra, the petition was timely executed and turned over, to a prison warden for mailing, but due to the negligence of the prison officials, it was not timely mailed. Recognizing that it was a harsh result, the Fifth Circuit nevertheless affirmed the Tax Court’s dismissal for lack of jurisdiction, saying at page 174:
The language of that section [7502] is clear, explicit, and strictly limited. It applies only if there is a postmark date or a date of registration falling within the prescribed period. * * * The plain and unambiguous meaning of the text of the section cannot be extended by its title or heading: “Timely mailing treated as timely filing. * * *”
It also said, at page 175: “This is a hard case presenting a grossly inequitable situation, but neither the Tax . Court nor this Court has any authority to relieve the taxpayer from the clear jurisdictional requirements of the law.” The Ninth Circuit reached the same conclusion under similar circumstances in Bloch v. Commissioner, supra.
In Luther A. Madison, 28 T.C. 1301 (1957), the envelope in which the petition was mailed was properly addressed and stamped and the stamps were canceled with wavy lines, but there was no date in the cancellation and no postmark on the envelope. This Court dismissed the petition as being untimely, saying that section 7502 cannot be and was not intended to be satisfied unless a postmark date had been stamped on the cover, and that the statute did not make the filing date depend on when the cover containing the petition was placed in the mailbox.
In Nathaniel A. Denman, 35 T.C. 1140 (1961), the envelope in which the document in question was delivered to the Tax Court several days late bore a smudged but decipherable U.S. postmark that was not within the filing period. It also bore a certified mail sticker. Petitioner produced a sender’s certified mail receipt which had a timely date typed on it but had no U.S. postmark or date on it. We dismissed for lack of jurisdiction. After discussing how certified mail can be used, we pointed out that petitioner did not take advantage of section 7502(c)(2) and section 301.7502-1(c)(2), Proced. & Admin. Regs., by having the sender’s receipt postmarked, and his statement that he personally mailed the petition on the 90th day made no difference. We were faced with very similar circumstances in C. Louis Wood, 41 T.C. 593 (1964), affd. 338 F. 2d 602 (9th Cir. 1964), except that petitioner could not produce the sender’s certified mail receipt, claiming that it was lost. We again held that section 7502(c)(2) was not applicable.
Boccuto v. Commissioner, 277 F.2d 549 (3d Cir. 1960), involved a petition filed in February of 1959, before the Secretary issued his regulation implementing section 7502(c)(2) relative to certified mail. The petition was received late and the U.S. postmark on the envelope bore a date which was the 91st day after the notice of deficiency was mailed. However, petitioner produced a sender’s certified mail receipt postmarked on the 90th day. Despite this fact, the Court dismissed the petition for lack of jurisdiction because section 7502(c)(2) had not been implemented and the postmark date on the envelope was controlling with regard to the applicability of section 7502.
Skolski v. Commissioner, 351 F. 2d 485 (3d Cir. 1965), revg. an order of dismissal entered by this Court, was the first case involving section 7502 in which the date of mailing was found to be material and was taken into consideration in holding that the petition was timely filed. The petition was received by the Tax Court on June 26,1964, 2 days late, in an envelope which bore a postmark stamp with a date that was illegible to the naked eye. The Post Office Department was asked whether it could determine the postmark date. It concluded from an examination of the envelope that it was mailed from Camden, N.J., on June 2 — , but could not determine whether there was a numeral following the 2 and if so, what it was. The Court of Appeals held that the Tax Court erred in not permitting the petitioner to attempt to prove what the illegible date on the postmark actually was, i.e., the date of the postmark. The court noted that—
it is the “date of the United States postmark” which section 7502(a) makes the significant date. * * * Here the postmark admittedly had a date although that date was in part illegible and therefore could not be read from the face of the postmark. Under these circumstances we are satisfied that it was competent for the taxpayers to establish what the date of the postmark actually was by evidence other than that appearing on the face of the postmark itself. * * * [351 F.2d at 487-488.]
The court relied on the language of section 301.7502-l(c)(l)(iii)(a), Proced. & Admin. Regs., for support of its conclusion. In closing, the court stated at page 488:
We are not here dealing with a case in which the postmark bore a clearly legible date which was not the actual date of mailing, compare Boccuto v. Commissioner, 3 Cir. 1960, 277 F. 2d 549, nor with a case in which the cover contained no postmark at all, compare Wood v. Commissioner, 9 Cir. 1964, 338 F. 2d 602. Here the postmark actually has a date which under section 7502(a) is, if it can be determined, to be deemed the date of delivery of the taxpayers’ petition to the Tax Court. * * *
Shortly after the Court of Appeals decided Skolski, this Court was faced with a case involving quite similar circumstances in Alexander Molosh, 45 T. C. 320 (1965). Relying on Skolskimd section 301.7502-l(c)(l)(iii)(a), Proced. & Admin. Regs., we held that where an illegible date was postmarked on the envelope, the petitioner may offer evidence aliunde to prove what the postmark date was. If the evidence is sufficient to prove what the postmark date was, that date shall be deemed the date of delivery. We distinguish Luther A. Madison, supra, because in that case there was no postmark date ever stamped on the envelope, and affirmed that this Court was correct in stating in Madison that “The statute does not make the filing date depend upon when the cover containing the petition was placed in the U.S. mail box.”'
Estate of Frank Everest Moffat, 46 T. C. 499 (1966),. was the next case considered by this Court on this issue. There it was acknowledged that the petition was mailed in New . York on December 29, 1965, the 90th day, and was received by the Tax Court 2 days late. There was a postmark on the envelope but the date thereof was illegible to the naked eye. The Post Office Department determined the postmark date to be December 30, 1965, and we dismissed for lack of jurisdiction holding that the petition was not timely filed. The legible postmark date being 1 day late permitted no other conclusion. We noted that this conclusion was consistent with our opinion in Luther A. Madison, supra, and the Court of Appeals opinion in Rich v. Commissioner, supra, and that .it was sharply distinguishable from Skolski v. Commissioner, supra, and Alexander Molosh, supra, both of which involved illegible postmark dates.
The most recent published opinion of this Court on the subject is Jacob L. Rappaport, supra. The facts in that case were almost identical to those before us now. The petition was mailed by ordinary mail on the 90th day but was received by the Tax Court after the 90-day period expired, and the envelope in which it was delivered bore no postmark. The question decided was whether petitioner should be afforded the opportunity to present evidence as to when the envelope would have been postmarked by the U.S. Post Office. We noted that “If the requirement of a postmark is the sine qua non of timely filing, such evidence would be irrelevant.” Making reference to many of the cases cited above, we noted that this Court, and others, had consistently taken the position that the requirement of a postmark is essential to obtaining the benefits of section 7502(a) and that we would continue to adhere to our position that the risk of postmarking is on the taxpayer. We held that evidence as to when the envelope would have been postmarked in the normal course of the U.S. Post Office Department business was irrelevant and immaterial and therefore inadmissible, so respondent’s motion to dismiss for lack of jurisdiction was granted.
In the course of this opinion, it was stated:
We recognize that there may be some logical inconsistency between the rule applicable where there is no postmark at all and the rationale of the cases which permit a taxpayer, in the situation where there is an illegible postmark, to sustain his burden by submitting evidence of time of mailing to prove when the postmark was made [citing Skolski, Molosh, and the regulation]. But the fact remains that, in the latter category of cases, there is a postmark, so that there is at least prima facie compliance with the requirements of section 7502(a).
The opinion in Rappaport was Court reviewed with no dissents.
It seems very clear to the writer that under the statute, the regulations, and the case law cited above section 7502 is not applicable unless there is a postmark of some sort, U.S. Post Office or otherwise, on either the cover in which the petition is mailed to the Tax Court, or on the sender’s receipt for certified mail, or unless the petition is mailed by registered mail. Absent a postmark, evidence of what the postmark date would have or should have been is irrelevant and immaterial because the “postmark date” is made the sine qua non of timely filing under section 7502 (except in the case of registered mail). The statute is clear and explicit, the regulations, which have been on the books for some time, are clear and explicit, and there are no published opinions which support a contrary conclusion. In my view it is injudicious and most inappropriate for this Court to change its position at this time, absent congressional legislation. To write the requirement of a postmark date out of section 7502 at this time is clear judicial legislation, which is not the province of this Court.
In this case the petition was received and filed by this Court more than 90 days after the notice of deficiency was mailed to petitioner so we must grant respondent’s motion to dismiss for lack of jurisdiction unless the petition can be deemed timely delivered under section 7502. The envelope in which the petition was mailed bore no postmark, U.S. or private meter, and was not sent by either registered or certified mail. Consequently, section 7502 is not applicable; the petition was not timely filed and in my opinion, respondent’s motion to dismiss must be granted.
Petitioner argues that the postmark date on the certificate of mailing which he received when he mailed the petition should be deemed to be the date of delivery of the petition under section 7502, without referring to any particular subsection and without citation of authority. We cannot agree. The certificate of mailing is not the same as a sender’s receipt for certified mail or a registered mail receipt, which are referred to in section 7502(c).5 At best the receipt is evidence of when the petition was mailed, which is neither in dispute here nor material to the issue to be decided. Luther A. Madison, supra; Estate of Frank Everest Moffat, supra.
The reason for this rather exhaustive dissenting opinion is that the majority seem to think that it is unreasonable and illogical to permit a petitioner to prove by evidence aliunde the postmark date of an illegible postmark stamped on the envelope, but to deny this right to the petitioner when there is no postmark on the envelope in which the petition is received. My review of all the published opinions on the subject was made to show that this distinction is justified, reasonable, and logical. In Skolski v. Commissioner and Alexander Molosh, both supra, on which the majority rely, there was a postmark date on the envelope, but the date could not be determined from the postmark itself. Thus, outside evidence, including evidence of time of mailing, was considered to be relevant to prove the postmark date, which, if proven to be timely, would make section 7502(a) applicable. See sec. 301.7502-l(c)(l)(iii)(a), Proced. & Admin. Regs. But where there is no postmark on the envelope, as here, the most the outside evidence could prove would be what the postmark date would have been had a postmark been stamped on the envelope in due course. This would not make section 7502 applicable because it would not be “the date of the United States postmark stamped on the cover” as required by section 7502(a).
Whether the requirement of a U.S. postmark date stamped on the cover is reasonable or logical is not for the courts to say. That is within the province of Congress, and Congress has stated its requirements in clear and explicit terms. Those terms have been interpreted by the regulation, and the courts, for many years to mean that a postmark date is required to make the section applicable and the regulation must by now be deemed to have the force and effect of law. National Lead Co. v. United States, 252 U.S. 140 (1920). Furthermore, Congress has indicated its ability to make the time of mailing controlling when that is what it intends. Section 7502(e), enacted in 1968 (sec. 106(a) of Pub. L. 90-364), provides that any deposit required to be made on or before a prescribed date, which is delivered by the U.S. mail, shall be deemed received by the bank or trust company on the date the deposit was mailed. But Congress did not change the wording of section 7502(a) at that time.
While the conclusion I would reach here may seem harsh, as did many of the other decisions cited above, it is required by law and is not inequitable. The petitioner is provided with several methods by whicbuhe can avoid the risks of post office negligence; and he also still has the remedy of paying the asserted deficiency and suing for refund in the U. S. District Court or the Court of Claims. Furthermore, I believe it is preferable to determine jurisdiction by precise, objective standards rather than by imprecise standards under which emotions may play a part in weighing the evidence.
Raum, Scott, Sterrett, and Wiles, JJ., agree with this dissent.In Bloch v. Commissioner, 254 F. 2d 277, 279 (9th Cir. 1958), the court indicated that since the enactment of sec. 7502, “There are no presumptions which we can indulge in appellant’s [petitioner’s] behalf.”
SEC. 7502. TIMELY MAILING TREATED AS TIMELY FILING AND PAYING.
(a) General Rule.—
(1) Date of delivery. — If any return * * * or other document required to be filed * * * within a prescribed period * * * under authority of any provision of the internal revenue laws is, after such period * * *, delivered by United States mail to the agency * * * with which such * * * document is required to be filed, * * * the date of the United States postmark stamped on the cover in which such * * * other document * * * is mailed shall be deemed to be the date of delivery * * *
(2) Mailing requirements — This subsection shall apply only if—
(A) the postmark date falls within the prescribed period * * *
(i) for the filing * * * of the * * * other document * * * and * * *
(B) the * * * other document * * * was, within the time prescribed in subparagraph (A), deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the agency * * * with which the * * * other document is required to be filed * * *
(b) Postmarks. — This section shall apply in the case of postmarks not made by the United States Post Office only if and to the extent provided by regulations prescribed by the Secretary or his delegate.
(c) Registered and Certified Mailing—
(1) Registered mail. — For purposes of this section, if any * * * other document * * * is sent by United States registered mail—
(A) such registration shall be prima facie evidence that the * * * other document was delivered to the agency * * * to which addressed, and
(B) the date of registration shall be deemed the postmark date.
(2) Certified mail. — The Secretary or his delegate is authorized to provide by regulations the extent to which the provisions of paragraph (1) of this subsection with réspect to prima facie evidence of delivery and the postmark date shall apply to certified mail.
Sec. 301.7502-1. Timely mailing treated as timely filing.
(a) General rule. Section 7502 provides that, if the requirements of such section are met, a document shall be deemed to be filed on the date of the postmark stamped on the cover in which such document was mailed. Thus, if -the cover containing such document bears a timely postmark, the document will be considered filed timely although it is received after the last date, or the last day of the period, prescribed for filing such document. * * *
(b)***
(c) Mailing requirements. (1) Section 7502 is not applicable unless the document is mailed in accordance with the following requirements:
(i) The document must be contained in an envelope or other appropriate wrapper, properly addressed to the agency, officer, or office with which the document is required to be filed.
(ii) The document must be deposited within the prescribed time in the mail in the United States with sufficient postage prepaid. For this purpose, a document is deposited in the mail in the United States when it is deposited with the domestic mail service of the United States Post Office. * * *
(iii) (a) If the postmark on the envelope or wrapper is made by the United States Post Office, such postmark must bear a date on or before the last date, or the last day of the period, prescribed for filing the document. If the postmark does not bear a date on or before the last date, or the last day of the period, prescribed for filing the document, the document will be considered not to be filed timely, regardless of when the document is deposited in the mail. Accordingly, the sender who relies upon the applicability of section 7502 assumes the risk that the postmark will bear a date on or before the last date, or the last day of the period, prescribed for filing the document, but see subparagraph (2) of this paragraph with respect to the Use of registered mail or certified mail to avoid this risk. If the postmark on the envelope or wrapper is not legible, the person who is required to file the document has the burden of proving the time when the postmark was made. Furthermore, in case the cover containing a document bearing a timely postmark made by the United States Post Office is received after the time when a document postmarked and mailed at such time would ordinarily be received, the sender may be required to prove that it was timely mailed.
(b) If the postmark on the envelope or wrapper is made other than by the United States Post Office * * *
(2) If the document is sent by United States registered mail, the date of registration of the document shall be treated as the postmark date. If the document is sent by United States certified mail and the sender’s receipt is postmarked by the postal employee to whom such document is presented, the date of the United States postmark on such receipt shall be 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 overcome by the use of registered mail or certified mail.
(3)***
(d) Delivery. (1) Section 7502 is not applicable unless the document is delivered by United States mail to the agency, officer, or office with which it is required to be filed. However, if the document is sent by registered mail or certified mail, proof that the document was properly registered or that a postmarked certified mail sender’s receipt was properly issued therefor, and that the envelope or wrapper was properly addressed to such agency, officer, or office shall constitute prima facie evidence that the document was delivered to such agency, officer, or office.
But see Perry Segura & Associates, Inc., T.C. Memo. 1975-80.
Certificates of mailing are described in Postal Service Regs, in 39 CFR Part 165. The certificate of mailing, PS Form 3817, simply states that the postal service received from — (petitioner’s counsel in this instance) one piece of ordinary mail addressed to-(the U.S. Tax Court in this instance). It contains no identifying number and cannot, on its face, be related to any particular piece of mail. There is no indication on the cover mailed that a certificate of mailing has been issued. On the other hand, with both certified mail and registered mail, which are authorized by sec. 7502, a sticker is placed on the cover that is mailed which bears an identifying number that is matched with the identifying number on the sender’s certified mail receipt or the registration receipt so the document mailed can be definitely identified. See Nathaniel A. Denman, 35 T. C. 1140 (1961), for a discussion of certified mail.