T.C. Memo. 1996-478

UNITED STATES TAX COURT

ESTATE OF ANTONINO CAMPILONGO, DECEASED, RAFELINA MAGLIO,

EXECUTRIX, Petitioner v

. COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 6122-95. Filed October 23, 1996.

Stephen C. Ryan and Andrew H. Wilson , for petitioner.

Cynthia K. Hustad and Elaine L. Sierra , for respondent.

MEMORANDUM OPINION

JACOBS, Judg e : This matter is before the Court on

respon dent's motion to dismiss for lack of jurisdiction.

Respondent contends that the petition was not filed within the 90--2-

1 All section references are to the Internal Revenue

Code, and all Rule references are to the Tax Court Rules of

Practice and Procedure. day period prescribed by section 6213(a). 1

Respondent determined a deficiency in petitioner's Federal

estate tax of $108,648.89 and an addition to tax under section

6651(a) of $61,664.44. Antonino Campilongo died on January 29,

1990, while a resident of California. Rafelina Maglio, Antonino's

sister, is the executrix of her brother's estate; she was a

resident of California on the date the petition was filed. The

statutory no tice of deficiency was mailed to Rafelina Maglio, as

executrix of the Estate of Antonino Campilongo, on January 19,

1995. The 90-day period provided by section 6213(a) for filing a

petition with this Court expired on Wednesday, April 19, 1995,

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

The postage on the envelope containing the petition was made

by private postage meter and is dated April 21, 1995. The petition

was received by the C ourt's mailroom on April 24, 1995, and was

filed on that date.

Petitioner acknowledges that the envelope in which the Court

received the petition be ars a legible postmark date which is

outside the 90-day period p rescribed by section 6213(a). But

petitioner claims:

1) The petition was originally mailed on April 18, 1995, by

certified mail, return receipt requested;-3-

2) an employee of petitioner's counsel's law firm affixed a

postage meter label to the envelope in which the petition was

placed; and

3) the postage meter label af fixed to the envelope

containing the petition apparently became unattached in transit,

causing the post office to return the envelope to petitioner's

counsel's law firm on April 21, 1995, stamped "Returned for

Postage".

Petitioner wishes to introduce extrinsic evidence to support

its claims. Respondent contends that extrinsic evidence may not

properly be considered when it would contradict a legible postmark

on the envelope containing the petition.

In general, to be timely, a petition for redetermination of a

deficiency must be filed with this Court within 90 days after the

notice of deficiency is mailed. Sec. 6213(a). The Court lacks

jurisdiction if the petition is untimely filed. P ietanza v.

Commissioner

, 92 T.C . 729, 735 (1989), affd. without published

opinion 935 F.2d 1282 (3d Cir. 1991). If a petition is received

after the 90-day period, it will be deemed filed on the date of the

United States postmark stamped on the envelope if the requirements

of section 7502 are satisfied.

Section 7502 does not apply unless a petition is timely

deposi ted in the United States mail with sufficient postage

prepaid. Sec. 7502(a)(2); sec. 301.7502-1(c)(1)(ii), Proced. &

Admin. Regs. When a private postage meter is used, the postmark-4-

date must be within the prescribed period for filing, and the

document must be received by the addressee within the normal

delivery period for an envelope postmarked by the United States

Post Office at the same point of origin. Sec. 301.7502-

1(c)(1)(iii)(B), Proced. & Admin. Regs. If a document is sent by

certified mail and the sender's receipt is postmarked by a postal

employee, the date on the receipt is treated as the postmark date

of the document. Sec. 301.7502-1(c)(2), Proced. & Admin. Regs.

As previously stated, the requirements of section 7502 and the

regulations must be satisfied in order to treat a petition as

timely fil ed when it reaches this Court by mail after the period

prescribed by section 6213(a). One of these requirements is that

a private postage meter postmark must bear a legible date that is

on or before the last date prescribed for filing the document. Sec.

301.7502-1(c)(1)(iii)(B), Proced. & Admin. Regs. In this case, the

A pril 21, 1995, postmark on petitioner's envelope is beyond the

required 90-day period for filing.

The envelope containing the petition must be timel y mailed

with sufficient postage prepaid. Sec. 7502(a)(2); sec. 301.7502-

1(c)(1)(ii), Proced. & Admin. Regs. Although petitioner claims

that this requirement was met, a U.S. Postal Service stamp on the

envelope indicates that it was returned for postage. We shall not

speculate about whether proper postage was affixed to the envelope

when originally mailed, or whether any such post age became

unattached before or after the envelope was deposited in the mail.-5-

A second mailing of the petition bears a private postmeter date of

April 21, 1995.

In Wiese v Commissioner

, 70 T.C. 712 (1978), the taxpayer

claimed that the date on a private postage meter was set

incorrectly, resulting in an untimely postmark that was 1 day later

than the actual date that the petition was mailed. The taxpayer

therein attempted to introduce ext rinsic evidence to support his

claim. In declining to receive the taxpayer's proffer of extrinsic

evidence, we stated:

The general s c heme of section 7502 and implementing

regulations is designed to avoid testimony as to date of

mailing in favor of tangible evidence in the form of an

officia l Government notation. As such, when a legible

Postal S ervice postmark appears on an envelope, no

evidence that the petition was mailed on some other day

will be allowed. S hipley v. Commissioner

, 572 F.2d 212,

214 (9th Cir. 1977), affg. a Memorandum Opinion of this

Court; Sylvan v. Commissioner , 65 T.C. 548, 552 (1975);

sec. 301.7502-1(c)(1)(iii)(a), Proced. & Admin. Regs.

Where non-Postal Service postmarks are used, the

statute does permit extrinsic evidence other than the

t angible evidence of the postmark. In such cases, the

regulations require the timely private postage meter

postmark date to be independently corroborated by facts

beyond the taxpayer's control. * * * But the statute and

regulations clearly contemplate presentation of such

extrinsic evidence only when the private posta ge meter

postmark reflects a date on or before the 90th day after

mailing the notice of deficiency.

* * * * * * *

we b elieve our position maintains the obvious parity

sought by Congress between private postage meter and

Postal Service postmarks--that both be made on or before

the 90th day. We noted that where a legible Postal

Service postmark reflected a date after the 90th day, no

evidence could be presented to contradict it. We see no

reason why a taxpayer who has inde pendent control over-6-

his postmark should fare any better, especially when the

regulations require both postmarks to be made on or

before the 90th day. * * *

Wiese v. Commissioner

, supra at 714-715; see also Kahle v.

Commissioner

, 88 T.C. 1063 (1987) (petition postmarked on 91st day

was untimely whether postmark made by private meter or U.S. Postal

Service; pos tmark date conclusive and extrinsic evidence not

admissible to contradict it).

In the instant case, the Apr il 21, 1995, postmark on

petitioner's envelope is conclusive. Petitioner's claimed prior

attempt to mail the petition was unsuccessful and did not result in

the filing of the petition. Evidence of such attempted mailing is

inadmissible under Wiese and Kahle

.

Petitioner relies on Sylvan v. Commissioner

, 65 T.C. 548

(1975), in which we considered extrinsic evidence of the date of

mailin g when the Post Office failed to postmark the envelope

c ontaining taxpayer's petition. In that case, the envelope had

sufficient postage. It reached the Court within the normal period

following a timely maili ng. The Court drew an analogy to cases

where the postmark on the envelope is illegible. See sec. 301-

7502-1(c)(iii)(A). In this case, petitioner's prior claimed

mailing did not reach the Court and was returned for postage.

Unlike Sylvan

, the subsequen t mailing bore a legible private

postmeter date beyond the 90-day period for filing. S ylvan is

therefore distinguishable on its facts.

Petitioner could have obtained a United States postmark on a-7-

certified mail receipt , but did not do so. Such postmark is

treated as the postmark date of the document, at least in cases

where the envelope reaches its destination. See sec. 301.7502-

1(c)(2) and (d), Proced. & Admin. Regs.

While we are sympathetic with petitioner's plight, because the

petition was filed outside the 90-day period prescribed by section

6213(a), we lack jurisdiction to h ear petitioner's case.

Consequently, respondent's m otion to dismiss for lack of

jurisdiction will be granted. Petitioner, however, is not without

a judicial remedy. Petitioner may pay the tax, file a claim for

refund with the Internal Revenue Service, and if the refund claim

is denied, sue for a refund in the appropriate Federal District

Court or the United States Court of Federal Claims.

To reflect the foregoing,

An order granting

respondent's motion will be

entered

.