Denman v. Comm'r of Internal Revenue, Docket No. 88206.

• Decision Date: 31 March 1961
• Docket Number: Docket No. 88206.
• Citation: 35 T.C. 1140
• Parties: NATHANIEL A. DENMAN AND LUCILLE G. DENMAN, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Tax Court

35 T.C. 1140

NATHANIEL A. DENMAN AND LUCILLE G. DENMAN, PETITIONERS,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 88206.

Tax Court of the United States.

Filed March 31, 1961.

TIMELY FILING— CERTIFIED MAIL— SENDER'S RECEIPT— POST-MARKED— SEC. 7502(c)(2)— REGS. SEC. 301.7502-1(c)(2), AS AMENDED.— The date of filing of a petition is not affected by the fact that it was sent by certified mail to the Tax Court where the sender's receipt is not postmarked.

OPINION.

MURDOCK, Judge:

An order was entered on February 24, 1961, dismissing this case for lack of jurisdiction. The petitioners, who throughout have proceeded pro se, filed a motion on March 17, 1961, to vacate that decision, and it seems appropriate to clarify the situation.

The Commissioner filed a motion on January 19, 1961, to dismiss this proceeding for lack of jurisdiction on the ground that a document ‘filed as the petition on April 11, 1960,‘ was not filed within the time prescribed by law. Attached to his motion was copy of a notice of deficiency for 1955 and proof of the mailing of the original on November 14, 1957. The Court entered an order on January 24, 1961, which was served upon the petitioners. It called the petitioners' attention to the facts stated in the respondent's motion to dismiss and to the petitioner's privilege to file on or before February 20, 1961, a written objection to the motion, setting forth facts supported by appropriate documentary evidence to indicate that the petition was timely filed. Nathaniel A. Denman, one of the petitioners, wrote a letter dated February 13, 1961, to the Clerk of the Court which was received by the Court on February 15, 1961, to which was attached a photostatic copy of a document which enabled the Court to identify the original thereof and the envelope in which mailed, as a communication received by the Court from Nathaniel on February 20, 1958.

The petitioners now rely upon that document as the original petition in this case for jurisdictional purposes. The Tax Court did not file that document as a petition because it did not think that it was intended by the taxpayers to be filed as a petition. The Clerk of the Tax Court, upon receipt of that document, promptly mailed to the sender a copy of the Rules of Practice of the Court together with a form letter stating how he could file a proper petition with the Tax Court should he so desire.¹ His next communication to the Court was dated April 8, 1960.

The document now relied upon was entitled ‘PROTEST (in lieu of petition)‘ and bore little, if any, resemblance to a petition in accordance with the Rules of the Court. It bears no caption. It makes no reference to any notice of deficiency or to any particular tax year, or years. It is signed by Nathaniel only and is not verified. No notice of deficiency was attached to the document. It was not accompanied by any filing fee. It contains such statements as ‘We herewith file an official protest concerning the alleged ‘deficiencies' claimed to have been found in our Tax, Income, by Mr. Martin Berg’; ‘We refuse to petition’; ‘We do not desire to beg for a petition, we kiss no man's foot’; and it concludes with ‘Now what do we do? What is the next step? We have been threatened, tricked, lied to, and had extortion practiced on us by your agents, and wonder what the next event will be.’ The Tax Court has no ‘agents.’ Martin Berg mentioned in the document is not known to the Tax Court.

Later communications from the petitioners indicate that this proceeding is intended to refer to 1955 income taxes of the petitioners.² A partial copy of a notice of deficiency for 1955 was attached to a ‘PETITION’ filed with the Court on November 23, 1960. This notice was signed by Frank J. Cavanagh on behalf of Russell C. Harrington, the Commissioner of Internal Revenue. It contains no reference to any one named Martin Berg.

The document received by the Court on February 20, 1958, and the envelope were examined by the Court in connection with its consideration of the January 19, 1961, motion of the Commissioner and the February 13, 1961, letter from one of the petitioners, following which an order of dismissal was entered February 24, 1961. It was erroneously stated in that order that the postmark date on the envelope in which the document received on February 20, 1958, was mailed to the Tax Court is not legible. The postmark on that envelope is legible and it is ‘Feb 17 1958 5 P.M. Wareham, Mass.’ The 90th day allowed by law for the filing of a petition following the mailing of the notice of deficiency in this case was February 12, 1958, which was not a Saturday, Sunday, or legal holiday in the District of Columbia. The Court concluded, before dismissing the case, that even if the document in question received by the Court on February 20, 1958, could, contrary to express statements made therein, be regarded as a petition, nevertheless there was no showing that it had been filed within the 90-day period.

The photostatic copy of the document attached to the petitioners' letter of February 13, 1961, has on it a photostatic copy of a ‘RECEIPT FOR CERTIFIED MAIL— 15¢‘ No. 2324136. The document received by the Tax Court on February 20, 1958, was sent by certified mail and bears a sticker ‘Certified Mail No. 2324136.’

Section 7502 of the Internal Revenue Code of 1954 title ‘TIMELY MAILING TREATED AS TIMELY FILING’ provides in paragraph (a) that if any document, required to be filed within a prescribed period by the internal revenue laws, is delivered to the addressee after the expiration of that period, the date of the United States postmark stamped on the cover in which the document is mailed shall be deemed to be the date of delivery, if the postmark date falls within the prescribed period and if the document was within the prescribed time deposited in the mail in the United States in an envelope,...