T.C. Memo. 1999-316

UNITED STATES TAX COURT

JANINE MIDORI FUJIOKA AND DAVID MIURA, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 105-99. Filed September 24, 1999. 

 

Janine Midori Fujioka, pro se. 

Paul R. Zamolo, for respondent.

MEMORANDUM OPINION

WOLFE, Special Trial Judge: Respondent determined a

deficiency in petitioners' Federal income tax in the amount of

$2,976 and an accuracy-related penalty pursuant to section

6662(a) in the amount of $595 for the taxable year 1995. 

Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the year in issue.
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This matter is before the Court on respondent's motion to

dismiss for lack of jurisdiction. Respondent contends that this

case should be dismissed on the ground that the petition was not

filed within the 90-day period prescribed by section 6213(a).

The facts have been fully stipulated, and the stipulation of

facts and the attached exhibits are incorporated by this

reference. Petitioners resided in San Francisco, California,

when they filed their petition.

On January 23, 1998, respondent sent by certified mail a

notice of deficiency to the petitioners' last known address at

867 45th Avenue, San Francisco, California. The 90-day period

for timely filing a petition with this Court expired on Thursday,

April 23, 1998, which date was not a legal holiday in the

District of Columbia.

On April 23, 1998, petitioner wife delivered an envelope

containing the Tax Court petition to the Mail Pouch, a private

delivery service located in San Francisco, California. 

Petitioner wife was informed by a clerk at the Mail Pouch that

the postage she had applied to the envelope was insufficient and

that an additional 55 cents of postage was required. Petitioner

wife paid the additional postage, and the Mail Pouch employee

affixed a private postmark, dated April 23, 1998, in the amount

of 55 cents to the envelope. Petitioner wife made a photocopy of
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the envelope containing the petition before she gave the envelope

to the Mail Pouch employee. 

This Court received and filed the petition on January 4,

1999, which date is 346 days after the mailing of the notice of

deficiency. The copy of the petition received by the Court 

bears a U.S. Postal Service postmark dated December 30, 1998,

which date is 341 days after the mailing of the notice of

deficiency. The U.S Postal Service postmark also indicates that

the envelope containing the petition was postmarked in Chicago,

Illinois. 

For an action to be maintained in this Court there must be a

valid notice of deficiency and a timely filed petition. See

Correia v. Commissioner, 58 F.3d 468 (9th Cir. 1995) per curiam,

affg. an order of this Court; Monge v. Commissioner, 93 T.C. 22,

27 (1989); Abeles v. Commissioner, 91 T.C. 1019, 1025 (1988);

Lindemood v. Commissioner, T.C. Memo. 1975-195, affd. 566 F.2d

646 (9th Cir. 1977). In general, a petition must be filed with

the Tax Court within 90 days from the date a statutory notice of

deficiency is mailed to a taxpayer residing in the United States. 

See sec. 6213(a). If the petition is not filed within 90 days,

it is untimely, and we have no jurisdiction to redetermine the

deficiency. See id. Section 7502(a) provides an exception to

the rule of section 6213(a) in that, if the petition is deposited

in the mail in the United States in a properly addressed envelope
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1 We also note that sec. 7502(f)(1) provides that "any

reference in this section to a postmark by the United States

Postal Service shall be treated as including a reference to any

date recorded or marked * * * by any designated delivery

service." The term "designated delivery service" means any

delivery service provided by a trade or business if such service

is designated by the Secretary. Sec. 7502(f)(2). However, the

private service used by petitioners has not been designated by

the Secretary as a "designated delivery service". See I.R.S.

Notice 97-50, 1997-2 C.B. 305; Notice 98-47, 1998-37 IRB 8.

on or before the date on which it is required to be filed, and if

the date of the United States postmark on the envelope containing

the petition is on or before the date on which the petition is

required to be filed, the date of such postmark is deemed to be

the date of filing. Rules concerning the application of this

exception where the mailing is through a private designated

delivery service are set forth in section 7502(f).1 

In this case, the petition was received by this Court on

January 4, 1999, which date is beyond the 90-day period for

filing a timely petition with this Court. Petitioners contend

that the private postmark affixed by the Mail Pouch demonstrates

that they timely mailed the petition on April 23, 1998, and

therefore are deemed to have timely filed the petition under

section 7502.

In the case of postmarks not made by the U.S. Postal Service

or by a designated delivery service, section 7502 is applicable

only if and to the extent provided by regulations prescribed by

the Secretary. See sec. 7502(b). The regulations provide that
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privately metered mail showing a date within the 90-day period is

considered timely filed if it is received within the normal

delivery time for mail postmarked by the U.S. Postal Service. 

See Lindemood v. Commissioner, supra; sec. 301.7502-

1(c)(1)(iii)(b), Proced. & Admin. Regs. The petition was

received by this Court 256 days after the date shown on the

private postmark. The normal delivery time for first-class mail

between San Francisco, California, and Washington, D.C. is

approximately 3 days. See Lindemood v. Commissioner, supra. 

Since the petition was not delivered within the normal delivery

time for mail postmarked by the U.S. Postal Service, petitioners

are not entitled to relief under this part of the regulation

unless they establish: (1) The actual date of mailing and that

such date was prior to the expiration of the 90-day period; (2)

that the delay in delivery was attributable to delay in the

transmission of mail; and (3) the cause of such delay. See id.;

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

Petitioners have failed to provide evidence or testimony

that establishes the cause for the delay in delivery. 

Accordingly, section 7502 does not afford petitioners any relief.

We note also that the applicable regulations, section

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

If the envelope has a postmark made by the United

States Post Office in addition to the postmark not so

made, the postmark which was not made by the United

States Post Office shall be disregarded, and whether
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the envelope was mailed in accordance with this

subdivision shall be determined solely by applying the

rule of (a) of this subdivision [requiring that the

U.S. Post Office postmark show mailing within the

prescribed period for filing the petition].

In this case, the envelope in which the petition was filed with

this Court bears a stamp indicating that the envelope was mailed

from Chicago, Illinois, on December 30, 1998. That date is 341

days after the mailing of the notice of deficiency.

Accordingly, we must dismiss this case for lack of

jurisdiction.

 An appropriate order

 dismissing this case for lack

 of jurisdiction will be entered.