T.C. Memo. 1998-197

UNITED STATES TAX COURT

THEODORE JONES, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

CATHERINE ALLEN-JONES, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket Nos. 14565-97, 14566-97. Filed May 28, 1998.

John L. Green, for petitioners.

Victoria J. Sherlock, for respondent.

MEMORANDUM OPINION

GOLDBERG, Special Trial Judge: These cases are before the

Court on respondent's motions to dismiss for lack of

jurisdiction. The issue for decision is whether petitioners

filed their separate petitions within the 90-day period
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1 Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

prescribed by section 6213(a).1 The motions were assigned for

hearing pursuant to section 7443A(b)(4) and Rules 180, 181, and

183. A hearing was held on respondent's motions in Houston,

Texas.

On March 26, 1997, respondent issued and mailed to each

petitioner a separate notice of deficiency. In each notice,

respondent determined the following deficiencies and additions in

Federal income taxes:

 Petitioner Theodore Jones

 Additions to Tax

 Sec. Sec. 

Year Deficiency 6651(a) 6654

1991 $43,943 $10,986 $2,511

1992 92,037 23,009 4,014

1993 32,932 8,233 1,380

 Petitioner Catherine Allen-Jones

 Additions to Tax

 Sec. Sec. 

Year Deficiency 6651(f) 6654

1991 $52,602 $39,452 $3,006

1992 101,043 75,782 4,407

1993 41,931 31,448 1,757

The 90-day period for filing a petition with this Court

expired on Tuesday, June 24, 1997, which was not a legal holiday

in the District of Columbia.
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2 Payment of the fees was received by the Court on July 18,

1997.

The petitions were received and filed with this Court on

Tuesday, July 8, 1997, 104 days after the mailing of the notices

of deficiency. The petitions were signed by petitioners' counsel

(Mr. Green) and were dated June 24, 1997. The petitions were

mailed to the Court, together in a properly addressed envelope

bearing a private postage-meter postmark date of June 24, 1997. 

No check in payment of the filing fees was included.2

Above the address label, the envelope bears two rubberstamped notations, apparently placed there by someone with the

United States Postal Service (Postal Service), that read: 

"Return to Sender Undeliverable as addressed No forwarding

order on file". Both stamps have been crossed out in red ink and

scratched over in black ink. Below the address label, the

envelope bears the handwritten notation: "Good Address", in

black ink. The return address on the envelope was that of Mr.

Green's office.

The envelope containing the petitions was mailed from the

Longpoint Post Office in Houston, Texas. The last pickup time

for mail deposited at the Longpoint Post Office located at 1702

Hillendahl Blvd., Houston, Texas, 77055, on June 24, 1997, was

5:30 p.m..

The parties agree that the normal delivery time for a

properly addressed envelope sent from Houston, Texas, to
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Washington, D.C., is 3 days. Statistical sampling records

maintained by the Postal Service in Houston, Texas, as part of

its Origin-Destination Information System, show that during the

period June 21, 1997, through July 18, 1997, 100 percent of the

metered mail mailed from Houston, Texas, to Washington, D.C., was

delivered within 3 days of mailing. Similar statistics for

metered mail and stamped mail combined also show 100-percent

delivery within 3 days. According to the records maintained by

the Transportation & Network Division of the Houston Office of

the Postal Service, no special circumstances existed on or near

June 24, 1997, that would explain the delay in delivery of the

petitions.

Section 6213(a) provides in part that a taxpayer has 90 days

from the date that the notice of deficiency is mailed within

which to file a petition with the Court. Failure to file within

the prescribed period requires that the petition be dismissed for

lack of jurisdiction. Estate of Moffat v. Commissioner, 46 T.C.

499 (1966). Section 7502 provides that a timely mailed petition

will be treated as timely filed in certain circumstances. In the

case of an envelope bearing a postmark other than that of the

Postal Service, section 7502 applies only to the extent provided

by regulation. Sec. 7502(b).

Where, as here, the envelope bears a private postage-meter

postmark:
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(1) the postmark so made must bear a date on or before the

last date, or the last day of the period, prescribed for

filing the document, and (2) the document must be received

by the agency, officer, or office with which it is required

to be filed not later than the time when a document

contained in an envelope or other appropriate wrapper which

is properly addressed and mailed and sent by the same class

of mail would ordinarily be received if it were postmarked

at the same point of origin by the United States Post Office

on the last date, or the last day of the period, prescribed

for filing the document. However, in case the document is

received after the time when a document so mailed and so

postmarked by the United States Post Office would ordinarily

be received, such document will be treated as having been

received at the time when a document so mailed and so

postmarked would ordinarily be received, if the person who

is required to file the document establishes (i) that it was

actually deposited in the mail before the last collection of

the mail from the place of deposit which was postmarked

(except for the metered mail) by the United States Post

Office on or before the last date, or the last day of the

period, prescribed for filing the document, (ii) that the

delay in receiving the document was due to a delay in the

transmission of the mail, and (iii) the cause of such delay. 

[Sec. 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.]

In these cases, the petitions were not received within the

normal 3-day mailing time between Houston, Texas, and Washington,

D.C.. The petitions were not received until July 8, 1997, 14

days after they were purportedly mailed. Therefore, under

section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.,

petitioners must establish that the petitions were actually

deposited in the mail before the last collection on June 24,

1997, that the delay in receiving the petitions was due to a

delay in the transmission of the mail, and the cause of such

delay.
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The petitions in these cases were mailed on June 24, 1997. 

Mr. Green's affidavit, attached to respondent's motions, states

that Mr. Green personally deposited the envelope containing the

separate petitions in the mail in the early evening on June 24,

1997. In petitioners' separate objections to respondent's

motion, it is alleged that the envelope was mailed from the

Longpoint Post Office at around 4 p.m.. In petitioners'

memoranda of law, it is alleged that Mr. Green left his office at

approximately 3 p.m. and deposited the envelope at the Longpoint

Post Office prior to time for the last pickup. Although not all

of these statements are precise, in our view they are not

inconsistent. We have no reason to doubt Mr. Green's veracity. 

Therefore, we find that petitioners have established that their

separate petitions were deposited in the mail on June 24, 1997,

prior to the last collection for the date.

The markings on the envelope containing the petitions

suggest that a delay in delivery may have occurred. Mr. Green

asserts that the envelope was not returned to his office. Our

careful scrutiny of the envelope has revealed that there is no

other address contained thereon underneath of the address label

bearing the Court's correct address. Attached to each of

petitioners' memorandum of law was a letter, dated January 6,

1998, from Jerry R. Warren, the manager of the Consumer Affairs

Division of the Houston Office of the Postal Service. In
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reference to the envelope containing the petitions, Mr. Warren

writes:

Since the correct address was used, it is impossible to

explain why your envelope was stamped "return to sender". 

However, because the envelope was stamped "return to sender

undeliverable as addressed", this may have been the main

cause for delay.

Mr. Green, it is difficult to say where or who may have

crossed out the "return to sender" stamp on the front of the

envelope since you have stated it was never returned to you. 

It is quite possible someone in the Washington Post Office

discovered the error and crossed out the stamp rerouting the

envelope as a good address.

Based on the appearance of the envelope and Mr. Warren's letter,

we conclude that the delay in delivery of the petitions to this

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

that the delay was caused by the Postal Service. See, e.g.,

Langston v. Commissioner, T.C. Memo. 1997-303.

Petitioners have satisfied the three elements of section

301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs., and the

petitions are deemed to have been filed timely. Therefore,

respondent's motions to dismiss for lack of jurisdiction will be

denied.

To reflect the foregoing,

An appropriate order

will be issued.
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