Aye v. Comm'r of Internal Revenue

• Decision Date: 09 May 1972
• Docket Number: Docket No. 218-72.
• Parties: BAKER L. AND HELEN D. AYE, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

58 T.C. 256

BAKER L. AND HELEN D. AYE, PETITIONERS

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 218-72.

United States Tax Court

Filed May 9, 1972.

Baker L. Axe, pro se.

H. Lloyd Nearing, for the respondent.

On Sept. 28, 1972, respondent mailed to petitioners a statutory notice of deficiency covering Federal income taxes for the years 1968 and 1969. On Dec. 20, 1971, the petitioners, acting through their accountant, prepared an informal petition on the explanation of adjustments page attached to the notice of deficiency and sent it by first-class mail in an envelope addressed to the ‘Internal Revenue Service, Attention: Tax Court of United States, 200 No. Los Angeles, Calif.’ The petition was received on Dec. 28, 1971, by the Notices Section, Audit Division, Internal Revenue Service, in Los Angeles. On Dec. 29, 1972, the Internal Revenue Service forwarded the petition to this Court and it was received on Jan. 3, 1972, which was 97 days after the notice of deficiency was mailed. Held: (1) The delay caused by the erroneous mailing of the petition to the Internal Revenue Service deprives the Tax Court of jurisdiction; and (2) the petition was not timely filed ‘with the Tax Court’ within the period prescribed in secs. 6213(a) and 7502(a), I.R.C. 1954; therefore, respondent's motion to dismiss for lack of jurisdiction will be granted.

OPINION

DAWSON, Judge:

This case is before us on respondent's motion to dismiss for lack of jurisdiction.

Petitioners' legal residence was in Lakewood, Calif., when they filed their petition in this proceeding.

A statutory notice of deficiency was mailed by respondent to the petitioners on September 28, 1971, determining income tax deficiencies of $1,513.26 for 1968 and $1,641.06 for 1969. On December 20, 1971, the petitioners, acting through their accountant, prepared an informal petition at the bottom of the explanation of adjustments page attached to the notice of deficiency. This was sent by first-class mail in an envelope bearing a postmark date of December 20, 1971, and addressed to the ‘Internal Revenue Service, Attention: Tax Court of United States, 200 No. Los Angeles, Calif.’ The petition was received by the Notices Section, Audit Division, Internal Revenue Service, Los Angeles, on December 28, 1971. The Internal Revenue Service forwarded the petition to the United States Tax Court in Washington, D.C., on December 29, 1971. It was received by the Tax Court on January 3, 1972, which was 97 days after the notice of deficiency was mailed.

On February 28, 1972, respondent filed a motion to dismiss the case for lack of jurisdiction on the ground that the petition was not filed within the time prescribed by sections 6213(a) and 7502(a), I.R.C. 1954. On April 4, 1972, petitioners filed an objection to respondent's motion. A hearing on the motion was held in Los Angeles on April 17, 1972.

Section 6213(a) provides that a petition must be filed with the Tax Court within 90 days after the statutory notice of deficiency is mailed to the taxpayer. The 90-day filing requirement is jurisdictional and this Court does not acquire jurisdiction of the case unless the petition is timely filed. Estate of Frank Everest Moffat, 46 T.C. 499 (1966); Jacob L. Rappaport, 55 T.C. 709 (1971), affd. 456 F.2d 1335 (C.A. 2, 1972).

Petitioners argue that the envelope containing their petition was postmarked within the 90-day period although it was erroneously and improperly addressed to, and received by, the Internal Revenue Service in Los Angeles. Hence they contend that they have met the 90-day filing requirement of the statute.

We cannot agree. Section 6213(a) provides that the petition must be filed ‘with the Tax Court.’ See also Rule 1(b) of the Tax Court Rules of Practice. In Earl H. C. Lurkins, 49 T.C. 452 (1968), a petition was mailed in an envelope timely postmarked but addressed to the U.S. Board of Tax Appeals, Washington, D.C. 20044.' It was returned by the Post Office in Washington to the taxpayer who enclosed the first envelope in a second envelope (which bore a postmark date more than 90 days after the notice of deficiency was mailed) and mailed it to this Court. We held that the actual filing of the petition was untimely within the provisions of section 6213(a) because it was received and filed with the Tax Court more than 90 days after the mailing of the statutory notice of deficiency. In reaching this conclusion we considered the provisions of section 7502 which under some explicit circumstances provides an exception to the 90-day filing requirement of section 6213(a). Section 7502(a)(1) provides that if any document required to be filed within a prescribed period under...