dissenting:
Respectfully I dissent. The Tax Court sympathized with the plaintiff and struggled to find a way to grant him relief, but could fine none. The statute is crystal clear. The Tax Court was correct in holding that the § 6213 requirement that the petition be in the mail within 90 days is jurisdictional. Congress enacted § 7502 to make clear that the postmark stamped on the envelope shall be deemed to be the date of delivery. The 90-day requirement was not changed.
Where the language of a statute is clear, as here, and there is no constitutional question involved, it is not the province of this court to “help out” Congress by making exceptions. The majority, in an effort to bring about a just and equitable result, has overstepped the dividing line and legislated. There is no twilight zone between the branches of government here. We are plainly in legislative territory.
I join the majority in sympathizing with the taxpayer. However, if the law needs amending, let Congress do it.