T.C. Memo. 2007-184

UNITED STATES TAX COURT

WAYNE D. BLAKE, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1763-07. Filed July 12, 2007.

Barry L. Dahne, for petitioner.

Michael T. Sargent, for respondent.

MEMORANDUM OPINION

CHIECHI, Judge: This case is before the Court on respondent’s motion to dismiss for lack of jurisdiction (respondent’s

motion). We shall deny respondent’s motion.

Background

The record establishes and/or the parties do not dispute the

following.
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1The Court filed the petition at 10:56 a.m. on Jan. 22,

2007.

2All Rule references are to the Tax Court Rules of Practice

and Procedure. All section references are to the Internal

Revenue Code in effect at all relevant times.

Petitioner resided in Baltimore, Maryland, at the time the

petition was filed.

On October 16, 2006, respondent mailed to petitioner by

certified mail to his last known address, which is also his

address of record in this case, a notice of deficiency with

respect to his taxable year 2000 (2000 notice). 

On January 22, 2007, the Court received a petition with

respect to the 2000 notice.1 Barry L. Dahne (Mr. Dahne), petitioner’s counsel of record in this case, signed the petition. 

Included in the envelope in which the petition was mailed to the

Court was a check for $60 drawn on the account of Barry L. Dahne

that was signed by him, made payable to “US TAX COURT”, and dated

“1/16/2007” (January 16, 2007 check). The Court used that check

to pay the $60 filing fee required by Rule 20(b),2 and on January

22, 2007, at 11:35 a.m., issued a receipt for that payment that

it sent to Mr. Dahne. 

The envelope containing the petition and Mr. Dahne’s January

16, 2007 check that the Court received bore four first-class

stamps that were not canceled. That envelope did not bear a U.S.

Postal Service postmark. Nor did it bear a privately metered
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3The Court takes judicial notice of the facts concerning the

irradiation treatment of the regular U.S. Postal Service mail

sent to and received by the Court and the delays caused by such

treatment.

4On Oct. 16, 2006, respondent mailed to petitioner by

certified mail the 2000 notice. The 90-day period for timely

filing a petition with respect to that notice (not counting

Saturday, Sunday, or a legal holiday in the District of Columbia

as the last day) expired on Jan. 16, 2007. See sec. 6213(a). 

postmark. A strip showing an indecipherable barcode was affixed

to the bottom of the envelope in question.

Since around the end of 2001, the regular U.S. Postal

Service mail sent to and received by the Court has been subject

to irradiation treatment. As a result of that treatment, the

Court has experienced delays in the receipt of such mail, although the delays have been relatively brief over the past

several years.3 The envelope containing the petition and the

January 16, 2007 check that the Court received does not bear any

obvious signs of irradiation treatment. 

Discussion

The Court’s jurisdiction to redetermine a deficiency depends

upon the issuance of a valid notice of deficiency and a timely

filed petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C.

22, 27 (1989).

The petition in the instant case was timely filed if it was

filed within 90 days after the 2000 notice was mailed, see sec.

6213(a), or on or before January 16, 2007, see id.4 The petition
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in this case was not received by the Court until January 22,

2007. Nonetheless, a petition that the Court receives and files

after the expiration of the 90-day period prescribed by section

6213(a) may be deemed timely filed under section 7502 and the

regulations thereunder. 

Under section 7502 and the regulations thereunder, certain

documents, including a petition filed with the Court, may be

treated as timely filed when timely mailed (timely-mailing/

timely-filing rule). In the case of a petition filed with the

Court, the timely-mailing/timely-filing rule generally will apply

if the U.S. Postal Service postmark appearing on the envelope in

which the petition was mailed falls within the period prescribed

by section 6213(a). See sec. 7502(a)(2). The timely-mailing/

timely-filing rule applies where a postmark is entirely omitted. 

Sylvan v. Commissioner, 65 T.C. 548 (1975). Where, as is the

case here, the envelope containing the petition that the Court

received does not bear a U.S. Postal Service postmark (or any

other postmark), a taxpayer may offer extrinsic evidence to

establish the date of the mailing of such envelope. Id. at 553-

554.

The Court held an evidentiary hearing on respondent’s motion

at which Mr. Dahne was the only witness. Mr. Dahne testified

that he mailed the envelope containing the petition at approximately 5:30 p.m. on January 16, 2007. According to Mr. Dahne’s
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5In respondent’s motion, respondent alleges:

(continued...)

testimony, he arrived at the U.S. Post Office in Owings Mills,

Maryland (Owings Mills Post Office), around 5:30 p.m. on January

16, 2007, and found that that office was closed. Mr. Dahne

further testified that he purchased stamps in the foyer of the

Owings Mills Post Office and placed them on the envelope containing the petition. According to Mr. Dahne, he then observed a

U.S. Postal Service truck near a mailbox located about 60 feet

from the Owings Mill Post Office. Mr. Dahne testified that he

approached the driver of that truck, handed the driver the

envelope containing the petition, and asked whether that envelope

would be postmarked on January 16, 2007, to which the driver

responded that it would. 

We found Mr. Dahne’s testimony to be credible. Moreover,

Mr. Dahne’s testimony is consistent with the Court’s having

received from him, along with the petition, a $60 check in

payment of the Court’s filing fee that was dated January 16,

2007, the date on which he testified he handed the envelope

containing the petition to a U.S. Postal Service employee. Mr.

Dahne’s testimony is also consistent with the fact that the

regular U.S. Postal Service mail sent to and received by the

Court is subject to irradiation treatment that has resulted in

brief delays in the receipt of such mail.5
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5(...continued)

The United States Postal Service has advised respondent

that an envelope which was properly addressed to the

Tax Court and mailed from the Owings Mills, Maryland 

area, and bearing a United States postmark with the

date of January 16, 2007, would have ordinarily been

received on or about January 19, 2007, at the Tax

Court. 

Respondent declined to call any witnesses, such as a U.S.

Postal Service employee, at the evidentiary hearing that the

Court held on respondent’s motion. Assuming arguendo that the

above-quoted allegation in respondent’s motion were established

by the record in this case, that allegation does not appear to

take account of the delay caused by the irradiation treatment to

which regular U.S. Postal Service mail sent to and received by

the Court is subject. Assuming arguendo that an envelope mailed

from the Owings Mills Post Office would ordinarily have been

received by the Court on or about Jan. 19, 2007, which was a

Friday, the envelope containing the petition would not have been

received by the Court after the irradiation treatment until at

the earliest Monday, Jan. 22, 2007, the date on which it was

actually received by the Court around 10:55 a.m.

On the record before us, we find that petitioner has shown

that the envelope containing the petition in this case that the

Court received was timely mailed on January 16, 2007. We hold

that under the timely-mailing/timely-filing rule the petition in

this case is considered to have been timely filed on January 16,

2007.

To reflect the foregoing, 

An order denying respondent’s

motion will be issued.