August v. Comm'r of Internal Revenue , Docket No. 4757-69.

• Decision Date: 28 July 1970
• Docket Number: Docket No. 4757-69.
• Citation: 54 T.C. 1535
• Parties: RAYMOND S. AUGUST, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

54 T.C. 1535

RAYMOND S. AUGUST, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 4757-69.

United States Tax Court

Filed July 28, 1970.

Erwin E. Cooper, for the petitioner.

Joel Gerber, for the respondent.

Held: 1. Respondent proved by competent evidence that his notice of deficiency dated June 18, 1969, was sent to petitioner at his last-known address on June 18, 1969, by certified mail pursuant to sec. 6212(a), I.R.C. 1954. Regular certified mailing procedures were followed by respondent.

2. Since the petition was sent by certified mail on Sept. 17, 1969, which was the 91st day after the notice of deficiency was ‘mailed,‘ the petition was not timely filed with the Tax Court within the period prescribed by sec. 6213(a) and sec. 7502, I.R.C. 1954. Therefore, respondent's motion to dismiss for lack of jurisdiction is granted.

OPINION

DAWSON, Judge:

On October 30, 1969, respondent filed a motion to dismiss the petition in this proceeding for lack of jurisdiction because it was not filed within 90 days after the notice of deficiency was mailed to petitioner, as provided by section 6213(a), I.R.C. 1954. Upon petitioner's objection to the motion, it was eventually calendared for hearing at Boston, Mass., on May 25, 1970. ¹

A notice of deficiency dated June 18, 1969, was sent by certified mail to the petitioner at his last-known address (111 Perkins Street, Jamaica Plain, Mass. 02130) on June 18, 1969. The 90-day period for timely filing a petition with this Court expired on September 16, 1969. The petition was sent by certified mail on September 17, 1969, which date is 91 days after June 18, 1969, and was received and filed in this Court on September 18, 1969, which is the 92d day after the notice of deficiency was sent to petitioner.

At the hearing the petitioner submitted in evidence the envelope in which the notice of deficiency had been mailed to him. It bore no postmark (which is customary of certified mail sent by the Internal Revenue Service), but upon its face, in the upper middle portion above petitioner's address, the numerals ‘7-4’ are written in ink. Petitioner claims that the numerals ‘7-4’ indicate that the notice of deficiency was mailed on July 4, 1969, rather than June 18, 1969, and, therefore, that his petition was timely filed with the Court. Respondent, on the other hand, contends that the evidence he submitted clearly supports his contention that the notice of deficiency was ‘mailed’ to petitioner on June 18, 1969.

Section 6212(a), I.R.C. 1954, provides that when the Secretary or his delegate determines there is a deficiency in income tax he is authorized to send notice of such deficiency to the taxpayer by certified or registered mail. Section 6212(b)(1) provides that it shall be sufficient if the notice of deficiency is mailed to the taxpayer at his last-known address. Section 6213(a) provides that a petition must be filed with the Tax Court within 90 days from the date of the notice of deficiency is mailed. Unless such petition is filed or mailed, within such 90-day period this Court does not acquire jurisdiction of the case. Vibro Mfg. Co. v. Commissioner, 312 F.2d 253 (C.A. 2, 1963); Estate of Frank Everest Moffat, 46 T.C. 499 (1966). An untimely petition must be dismissed for lack of jurisdiction. Nathaniel A. Denman, 35 T.C. 1140 (1961). Even though an inequity may result, a petition cannot be relieved from the jurisdictional requirements of the statute. Healy v. Commissioner, 351 F.2d 602 (C.A. 9, 1965); Rich v. Commissioner, 250 F.2d 170 (C.A. 5, 1957).

It is well settled that the date appearing on the deficiency notice is not proof of the date of its mailing or that the 90-day period for filing a petition with this Court runs from such date. Southern California Loan Association, 4 B.T.A. 223, 226 (1926). The critical date is the date the deficiency notice was ‘mailed,‘ and that date must be established by the respondent. See and compare Anne M. Evans, T.C. Memo. 1955-126, affirmed per curiam on another issue 235 F.2d 586 (C.A. 8, 1956); Tenzer v. Commissioner, 285 F.2d 956, 958 (C.A. 9, 1960); Cohen v. United States, 297 F.2d 760, 772 (C.A. 9, 1962); and Southern California Loan Association, supra. The date the deficiency notice is actually received by the taxpayer is not controlling. Cohen v. United States, supra at 772.

The Internal Revenue Service endeavors to make sure that a deficiency notice is issued in proper form to the correct taxpayer and that it is mailed within the statutory period. Since the Commissioner may be required to prove the mailing of the deficiency notice, the exact date of mailing, together with the postal certification or registry number, are carefully preserved in its records for that purpose. The regular administrative procedures were followed in the instant case.

We think respondent has submitted persuasive evidence that the notice of deficiency was ‘mailed’ to the petitioner on June 18, 1969. John Djinivis, chief mail clerk for the Boston Office of the Internal Revenue Service, testified that a standard procedure is followed in mailing statutory notices of deficiency. The notices are first brought to the mailroom by a clerk from the Review Section of the Audit Division. The names on the notices are then checked by the mailclerk against the names listed on the Post Office Department form 3877, Application for Registration or Certification, which list is brought from the Review Section, along with the letters, by the review clerk. The review clerk then signs the reverse side of the form 3877, certifying that the notices listed on the front side of the form 3877 were in fact delivered to the mailclerk on the particular day indicated by the review clerk. The mailclerk thereupon inserts the notice of deficiency in the envelope, and seals the envelope. The mailclerk next assigns numbers, one to each notice of deficiency, in a consecutive manner, so that each notice bears a different number from other numbered letters mailed on the same or other days. The assigned number is written by the mailclerk upon the cover in which the notice of deficiency has been enclosed, and is recorded on...