T.C. Memo. 1997-303

UNITED STATES TAX COURT

GERRY DAN AND KELLY M. LANGSTON, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 22262-96. Filed July 1, 1997.

James D. Williams, for petitioners.

Ann L. Darnold, for respondent.

MEMORANDUM OPINION

COUVILLION, Special Trial Judge: Respondent filed a motion

to dismiss this case for lack of jurisdiction on the ground that

the petition was not timely filed. Petitioners, through counsel,

filed a notice of objection. The motion was assigned for hearing
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1 Unless otherwise indicated, section references are to

the Internal Revenue Code in effect for the years at issue. All

Rule references are to the Tax Court Rules of Practice and

Procedure.

pursuant to section 7443A(b)(4)1 and Rules 180, 181, and 183. 

The motion was calendared for hearing and was heard.

Respondent determined against petitioners the following

deficiencies in Federal income taxes, additions to tax, and

penalties for the years indicated:

 Addition to Tax Penalty 

 Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)

 1993 $7,977 $1,995 $ 963

 1994 5,251 263 1,050

At the time the petition was filed, petitioners' legal residence

was Tulsa, Oklahoma.

Respondent mailed the notice of deficiency by certified

mail, on June 14, 1996, to petitioners' last known address. The

period for timely filing the petition in this Court, pursuant to

section 6213(a), ended Thursday, September 12, 1996, which date

was not a legal holiday in the District of Columbia. The

petition was filed with this Court on October 16, 1996, which

date was 124 days after the mailing of the notice of deficiency.

Respondent contends the petition was not timely filed within

the time prescribed by sections 6213(a) and 7502(b) and the
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regulations thereunder. Petitioners contend their petition was

timely filed, by mail, on September 12, 1996.

A petition for redetermination of a deficiency must

generally be filed with this Court within 90 days after the

notice of deficiency is mailed to the taxpayer. Sec. 6213(a). 

If a taxpayer fails to file within the statutory period, the

petition must be dismissed for lack of jurisdiction. Sylvan v.

Commissioner, 65 T.C. 548, 549-550 (1975).

If a petition is received after the 90-day period, the

petition is deemed filed when mailed if the requirements of

section 7502 are satisfied. Stotter v. Commissioner, 69 T.C.

896, 897 (1978). Under section 7502(a), if the envelope

containing the petition bears a postmark made by the U.S. Postal

Service (Postal Service), if the date of such postmark falls

within the 90-day period, and if the other requirements of

section 7502 are satisfied, then the otherwise untimely petition

will be deemed timely filed. Stotter v. Commissioner, supra. 

When there is an illegible postmark or the postmark was

inadvertently left off, a taxpayer may submit evidence to show

that, in fact, the petition was timely mailed. Sylvan v.

Commissioner, supra at 553. To obtain the benefits of section

7502, a taxpayer has the burden of proof to establish timely

mailing. Sec. 301.7502-1(c)(1)(iii)(a), Proced. & Admin. Regs.;

Mason v. Commissioner, 68 T.C. 354, 356-357 (1977).
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The petition in this case was mailed to this Court by

ordinary mail, first class, but the parcel was neither certified

nor registered. The mailing cover or envelope was properly

addressed to the Court and bears a postmark by the Postal Service

that is not legible. The envelope, however, bears two rubberstamped notations that state: "Found in supposedly empty

equipment." At the hearing on the motion, an employee of the

Postal Service acknowledged that the two rubber-stamped notations

were those of the Postal Service, and the message on these

notations could account for the delay in the delivery of the

petition to the Tax Court. Based on this testimony, the Court

concludes that the delay in delivery of the petition to this

Court was due to a delay in the transmission of the mail, and

that the cause of such delay was the Postal Service. In the

absence of the envelope's having been misplaced or left in the

empty equipment of the Postal Service, the Court is satisfied

that the petition would have been delivered to the Court in the

normal period of time for a parcel mailed from Tulsa, Oklahoma,

to Washington, D.C.

As noted above, in order for petitioners to rely on the

timely mailing, timely filing provisions of section 7502(a) where

the postmark is illegible, they must prove the date the postmark

was made. See Berry v. Commissioner, T.C. Memo. 1994-224.
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Petitioners' case is made difficult by the fact that the

petition, the accompanying statement designating the place of

trial, the attorney's cover letter of transmittal, and the

attorney's check for the Court's filing fee all bear dates of

September 13, 1996--which is a date 91 days from the date the

notice of deficiency was mailed. Petitioners called one witness

at the hearing, a paralegal who was employed by petitioners'

attorney, who testified that he prepared the final draft of the

petition in the late afternoon on September 12, 1996, and that

both he and petitioners' counsel were cognizant that

September 12, 1996, was the 90th day from the date the notice of

deficiency was mailed, and that the petition had to be mailed on

that date. He testified further that he inadvertently typed the

date of September 13 because, in preparing legal documents in the

late afternoon, he customarily dated such documents the

succeeding day. Petitioners' counsel, who was present at the

hearing, represented to the Court that he was likewise aware that

the petition had to be mailed on September 12, and that he

personally hand delivered the petition, addressed to this Court,

to the Tulsa, Oklahoma, post office on September 12, 1996,

shortly before 7 p.m. He rang the bell at the post office and

handed the envelope containing the petition to a postal clerk,

specifically requesting that the parcel be postmarked that date. 
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The postal clerk responded that the parcel would be postmarked as

requested.

The Court is satisfied that the testimony of petitioners'

witness and the representations of their attorney are credible,

and that the petition was mailed by counsel for petitioners on

September 12, 1996. Counsel for respondent, at the hearing,

agreed that "Petitioner has provided sufficient, credible

evidence that the petition was mailed on September 12th". The

Court holds, therefore, that petitioners have sustained their

burden of proving that their petition was timely mailed. 

Respondent's motion, therefore, will be denied.

 An appropriate order

 will be issued.