T.C. Memo. 1996-561

UNITED STATES TAX COURT

BENJAMIN V. GOMEZ, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 23470-95. Filed December 30, 1996.

Bradford E. Henschel, for petitioner.

Guy Glaser, for respondent.

MEMORANDUM OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Larry L. Nameroff pursuant to section 7443A(b)and Rules
2

 

1 All section references are to the Internal Revenue Code

in effect for the years in issue. All Rule references are to the

Tax Court Rules of Practice and Procedure.

 

2 It is unclear whether these cancellation marks constitute

a postmark that would supersede the private postage meter stamp

and control the mailing date for purposes of sec. 7502. However,

in view of our disposition of respondent's motion, we need not

180, 181 and 183.1 The Court agrees with and adopts the opinion

of the Special Trial Judge, which is set forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

NAMEROFF, Special Trial Judge: This case is before us on

respondent's motion to dismiss for lack of jurisdiction. On

August 3, 1995, respondent sent petitioner a notice of deficiency

for the taxable year 1992 determining an income tax deficiency of

$11,294, and additions to tax under section 6651(a)(1) of $2,823,

and under section 6654(a) of $491. The time within which to file

a timely petition from that notice of deficiency expired on

November 1, 1995. 

On November 13, 1995, the Court filed a petition with

respect to 1992. It is alleged therein that petitioner's mailing

address was 201 South Hazel, La Habra, California 90631. The

envelope in which the petition was mailed bore a private postage

meter stamp dated October 30, 1995, reflecting postage of 32

cents plus seven 32-cent postage stamps. The envelope contains a

series of markings which have been described as cancellation

stamps, indicating that the cancellation was done by a Los

Angeles Post Office on November 7, 1995.2
3

consider this question.

On August 24, 1995, respondent sent petitioner a notice of

deficiency for the taxable year 1993 determining an income tax 

deficiency of $10,734, plus additions to tax under section

6651(a)(1) of $2,683.50, and under section 6654(a) of $449.67. 

The 90-day period for timely filing a petition with respect to

the 1993 notice of deficiency expired on Wednesday, November 22,

1995. On December 7, 1995, petitioner filed with the Court an

amended petition purporting to place in issue the taxable year

1993. The Court did not retain the envelope in which this

amended petition was filed. 

In his objection to respondent's motion to dismiss, and

again at the hearing in this matter, counsel for petitioner

alleged that the "incorrectly styled" amended petition was timely

filed on November 21, 1995, based upon a certificate of service

dated November 21, 1995, on which was also imprinted a private

postage meter stamp for zero postage dated November 21, 1995. In

a Supplemental Opposition to respondent's motion to dismiss for

lack of jurisdiction, petitioner contended, in part, that the

normal rules relating to the timeliness of petitions do not apply

because the Government was shut down on November 21, 1995, during

the 90-day period within which petitioner was to file his

petition, and, therefore, that day was a holiday in Washington,

D.C. In his Supplemental Opposition, counsel for petitioner
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requested that the Court sanction respondent in the amount of

$350. In response to petitioner's Supplemental Opposition,

counsel for respondent requested sanctions against petitioner's

counsel under section 6673(a)(2).

At the hearing held in this matter, no witnesses were

presented on behalf of petitioner, although petitioner's counsel

alleged he had timely mailed the petition and amended petition as

demonstrated by the postage meter marks on the original envelope

and on the certificate of service on the amended petition. 

Respondent presented the testimony of Patricia Ann Morgan, a

witness from the U.S. Postal Service who testified that the

normal delivery time of mail from Los Angeles to Washington, D.C.

was 3 days.

The Court ordered the parties to file Memoranda of Points

and Authorities seriatim. Mr. Henschel, counsel for petitioner,

requested additional time to file his memorandum. The request

was granted, but no memorandum has been received from petitioner

or his counsel.

It is well established that this Court has jurisdiction only

if there has been a validly issued notice of deficiency and a

timely filed petition. Pyo v. Commissioner, 83 T.C. 626, 632

(1984); Keeton v. Commissioner, 74 T.C. 377, 379 (1980); Estate

of Moffat v. Commissioner, 46 T.C. 499 (1966). A petition for

redetermination of a deficiency ordinarily must be filed with

this Court within 90 days after the notice of deficiency is
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mailed to a taxpayer. Sec. 6213(a). The time provided for

filing a petition is jurisdictional and cannot be extended. 

Failure to file within the prescribed period requires that the

petition be dismissed for lack of jurisdiction. Estate of

Rosenberg v. Commissioner, 73 T.C. 1014, 1016-1017 (1980); Estate

of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980); Stone v.

Commissioner, 73 T.C. 617, 618 (1980); Cassell v. Commissioner,

72 T.C. 313, 316-317 (1979); Estate of Moffat v. Commissioner,

supra at 501. A petition is filed on the date received. If,

however, a petition is received more than 90 days after the

mailing of the notice of deficiency, the petition is deemed to

have been filed when mailed if the requirements of section 7502

are satisfied.

Pursuant to section 7502(a), if the envelope or wrapper

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

Postal Service, and the other requirements of section 7502 are

met, the postmark date will be deemed to be the filing date. 

However, where the postmark is not made by the U.S. Postal

Service, as in the instant case, the timely mailing rule shall

apply "only if and to the extent provided by regulations

prescribed by the Secretary." Sec. 7502(b).
6

 

3 The regulations under section 7502(b) have been held to

be valid. Lindemood v. Commissioner, 566 F.2d 646, 648-649 (9th

Cir. 1977), affg. per curiam T.C. Memo. 1975-195; Fishman v.

Commissioner, 51 T.C. 869, 872-873 (1969), affd. per curiam 420

F.2d 491 (2d Cir. 1970).

Section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.,3

provides that privately metered mail qualifies for the timely

mailing rule of section 7502 if the postmark bears a timely date

and the document is received no later than the time ordinarily

required for the delivery of a document postmarked at the same

point of origin by the Postal Service on the last day for its

filing. If the document is not delivered within such time, the

taxpayer must establish, among other things, that the delay in

the delivery was due to delay in the transmission of mail and the

cause of the delay.

For 1992, the petition was received on November 13, 1995, 14

days after the alleged mailing on October 30, 1995. For 1993,

the amended petition was received on December 7, 1995, 16 days

after the alleged mailing on November 21, 1995. Inasmuch as

normal delivery time between Los Angeles and Washington, D.C. is

3 days, neither the petition nor the amended petition was

received within the ordinary time for delivery. Therefore, the

regulations require petitioner to establish: (1) The documents

were actually deposited in the mail on or before the last dates

prescribed for filing; (2) the delays in delivery were

attributable to delays in the transmission of the mail; and (3)
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the cause of such delays. Lindemood v. Commissioner, 566 F.2d

646 (9th Cir. 1977), affg. per curiam T.C. Memo. 1975-195;

Fishman v. Commissioner, 51 T.C. 869, 872-873 (1969), affd. per

curiam 420 F.2d 491 (2d Cir. 1970); sec. 301.7502-(c)(1)(iii)(b),

Proced. & Admin. Regs.

Petitioner has failed to meet his burden of proof. Even if

we concluded that the petition and the amended petition were

timely deposited in the mails, petitioner has not established

that the delays in delivery were due to delays in the

transmission of the mail or the cause of such delays. Sec.

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

closing of the Government did not affect the transmission of the

mail. Moreover, even if November 21, 1995, were a holiday in

Washington, D.C., it would not extend the 90-day period for the

1993 year beyond November 22, 1995. Thus, petitioner has not

established that the petition and the amended petition were

timely mailed under sections 6213(a) and 7502. See also Rule

41(a). Accordingly, this case must be dismissed for lack of

jurisdiction.

Petitioner may still be able to obtain a judicial hearing on

the merits of respondent's determinations in Federal District

Court or the United States Court of Federal Claims by following

the refund procedures.

In view of the circumstances involved in this case, we

decline to award petitioner any requested costs or to sanction
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petitioner's counsel under section 6673(a)(2) as requested by

respondent.

An order granting respondent's 

motion and dismissing this case for

lack of jurisdiction will be entered.