Boccuto v. CIR
Decision Date | 02 May 1960 |
Docket Number | No. 13085.,13085. |
Citation | 277 F.2d 549 |
Parties | Thomas and Delilah BOCCUTO, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. |
Court | U.S. Court of Appeals — Third Circuit |
Mark E. Dolin, Philadelphia, Pa., for petitioners.
Charles B. E. Freeman, Washington, D. C. (Abbott M. Sellers, Acting Asst. Atty. Gen., Lee A. Jackson, Robert N. Anderson, Attys., Department of Justice, Washington, D. C., on the brief), for respondent.
Before GOODRICH and STALEY, Circuit Judges.
This petition for review presents the not uncommon question of whether the Tax Court erred in dismissing for lack of jurisdiction the taxpayers' petition for redetermination of the deficiencies asserted by the Commissioner of Internal Revenue.
The Commissioner of Internal Revenue determined deficiencies and penalties in the income tax of Thomas and Delilah Boccuto for the calendar years 1953, 1955, 1956, and 1957. On November 13, 1958, the Commissioner mailed a notice of deficiency by registered mail to the taxpayers at 35 Colmar Road, Colwick Gardens, Merchantville, New Jersey. The taxpayers assert that this letter was returned undelivered and that the notice was not actually received by the taxpayers until January 21, 1959, when it was handed to Thomas Boccuto in the Camden office of the Internal Revenue Service. Nonetheless, three weeks later a petition for redetermination was mailed to the Tax Court by certified mail. Evidence was presented to the Tax Court that on the ninetieth day following dispatch of the notice of deficiency, the envelope containing the petition was delivered to the post office and a receipt for certified mail stamped February 11, 1959, was obtained. This same envelope was produced by the Commissioner at the hearing and bore the postmark date February 12, 1959. Additionally, it was noted that the petition was not received and filed by the Tax Court until 2:17 P.M. on February 13, 1959.
The Commissioner filed a motion to dismiss the petition on the ground that the Tax Court lacked jurisdiction since the taxpayers failed to file the petition within ninety days after the notice of deficiency was mailed to their last known address. In a short, unreported order the Tax Court granted the motion and dismissed the case.
Petitioners' attack upon the dismissal is two-fold. They contend that delivery of the petition by certified mail to the post office within ninety days operated to confer jurisdiction upon the Tax Court, and secondly, they contend that the fact that the Commissioner's notice of deficiency was undated made it impossible to calculate the ninety-day limitation period and therefore the court should have calculated from the date of actual service. In their short presentation of this second issue, petitioners also raise a third ground that we feel merits discussion, i. e., whether the Commissioner had actual knowledge that petitioners were residing in Florida.
A number of sections in the Internal Revenue Code of 1954 are pertinent to the problems raised by petitioners.1 Section 6212, as amended, 26 U.S.C. (1958 ed.) § 6212, provides that the Secretary, upon a determination of deficiency, "is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail," and such notice if mailed to the taxpayer at his last known address shall be sufficient. The succeeding section, 26 U.S.C. (1958 ed.) § 6213, establishes the right of the taxpayer to file a petition with the Tax Court for a redetermination of deficiency if it is filed within ninety days after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). These sections must be read in light of Section 7502, 26 U.S.C. (1958 ed.) § 7502, which provides:
As previously noted, the notice of deficiency was dispatched by registered mail to the petitioners on November 13, 1958. Assuming for the moment that the letter of deficiency was sent to the last known address of the petitioners, the ninety-day period of limitation runs from that date, and it is immaterial that...
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...file documents with the IRS. See Estate of Wood, 909 F.2d at 1161. The Government draws our attention to Boccuto v. Commissioner of Internal Revenue, 277 F.2d 549, 553 (3d Cir.1960), where we decided that the taxpayers in that case could not satisfy § 7502. It argues that in that case we "r......
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...sole case of registered mail where the date of registration is ‘deemed the postmark date.'7 Sec. 7502(c)(1)(B) See Boccuto v. Commissioner, 277, F.2d 549 (3rd Cir. 1960); Nathaniel A. Denman, 35 T.C. 1140 (1961). Congress, in making the postmark irrebuttable evidence of timely mailing, focu......
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