Deutsch v. C. I. R., No. 804

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore OAKES and GURFEIN, Circuit Judges, and PIERCE; PIERCE
Citation599 F.2d 44
Parties79-1 USTC P 9407 David DEUTSCH, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. ocket 79-4004.
Decision Date30 May 1979
Docket NumberD,No. 804

Page 44

599 F.2d 44
79-1 USTC P 9407
David DEUTSCH, Petitioner-Appellant,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 804, Docket 79-4004.
United States Court of Appeals,
Second Circuit.
Argued April 9, 1979.
Decided May 30, 1979.

Martin S. Echter, Washington, D. C. (Ira M. Lowe, Washington, D. C., of counsel), for petitioner-appellant.

Mary L. Jennings, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews and Daniel F. Ross, Attys., Tax Div., Dept. of Justice, Washington, D. C., of counsel), for respondent-appellee.

Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge. *

PIERCE, District Judge:

This is an appeal from the dismissal of a petition to the United States Tax Court on the ground that the petition was untimely filed.

On June 29, 1977, the Internal Revenue Service issued a notice of deficiency to the taxpayer David Deutsch for a total of $27,006.68. On October 12, 1977, 105 days after issuance of the notice, the Tax Court

Page 45

received and filed as a petition a copy of a letter dated August 4, 1977 and postmarked "Oct. (illigible) 1977." This letter was signed by the taxpayer's accountant, 1 and although addressed to the Internal Revenue Service office in Los Angeles, the letter stated that a copy was being sent to the United States Tax Court. For reasons which do not appear on the record, the copy allegedly addressed to the Tax Court was never found or presented. The Commissioner moved to dismiss the petition for lack of jurisdiction. In response, the taxpayer offered the affidavit of his accountant who claimed he had mailed the copy of the letter to the Tax Court on August 4, 1977, within the ninety day period prescribed. 2

A Special Trial Judge of the Tax Court Fred S. Gilbert held a hearing on April 26, 1978 at which the accountant testified regarding the issue of the mailing. On July 6, 1978, Chief Judge C. Moxley Featherston dismissed the petition on the ground that it was not timely filed and thus the Tax Court lacked jurisdiction.

Taxpayer appeals the Tax Court dismissal, contending that his petition was timely filed since his accountant testified that it was timely mailed.

It is not disputed that the Tax Court cannot assert jurisdiction unless a petition is filed within ninety days after a deficiency notice has been mailed by the Commissioner. Vibro Manufacturing Co. v. Commissioner,312 F.2d 253 (2d Cir. 1963) (per curiam). Section 7502 3 of the Internal

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Revenue Code provides guidance for determining filing when a petition is mailed. In certain cases, the date of the postmark or the date of registration will be deemed the date of delivery to the Tax Court. However, in the present case, there is no postmark or registration receipt that indicates timely mailing. Further, the legislative history indicates that section 7502 is only applicable if the petition is actually delivered. See H.Rep.No.1337, 83d Cong., 2d Sess. 434-35, as reprinted in 3 U.S.Code Cong. & Admin.News pp. 4017, 4583 (1954); S.Rep., as reprinted in 3 U.S.Code Cong. &...

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63 practice notes
  • Boudreau v. United States, BAP NO. RI 19-056
    • United States
    • U.S. Bankruptcy Appellate Panel, First Circuit
    • December 11, 2020
    ...rule and supplies the exclusive exception to the physical-delivery rule. See, e.g., Miller, 784 F.2d at 731 ; accord Deutsch v. Comm'r, 599 F.2d 44, 46 (2d Cir. 1979) (citations omitted). These circuits hold that, where the taxpayer cannot show an actual postmark, the court may not accept &......
  • Comptroller of Md. v. Myers, 0095, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • July 1, 2021
    ...other extrinsic evidence could not be offered as proof of a timely mailing. See, e.g. , Miller , 784 F.2d at 730 ; Deutch v. Comm'r. , 599 F.2d 44, 46 (2d Cir. 1979), cert. denied , 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980) ; Parr v. United States , 694 F. Supp. 146, 147 (D. Md. 1......
  • Philadelphia Marine Trade Association v. C.I.R., No. 06-3798.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 15, 2008
    ...of a postmark or registration receipt, that he mailed the document on August 4, 1977, well before a September 27, 1977 deadline. 599 F.2d 44, 44-46 (2d Cir.1979).11 It reasoned that § 7502 demonstrates a "penchant for an easily applied, objective standard." Id. at 46. The Sixth Ci......
  • Shirley v. United States, CIVIL ACTION NO. 3:11-CV-323-DW
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • February 8, 2013
    ...courts holding that the "exceptions embodied in [§7502] [a]re exclusive and complete." Id. at 731 (following Deutsch v. Comm'r, 599 F.2d 44, 46 (2nd Cir. 1979), and other cases cited therein).Stocker 2013 WL 174227 at *5. The panel in Stocker then continued in a footnote to conced......
  • Request a trial to view additional results
63 cases
  • Boudreau v. United States, BAP NO. RI 19-056
    • United States
    • U.S. Bankruptcy Appellate Panel, First Circuit
    • December 11, 2020
    ...rule and supplies the exclusive exception to the physical-delivery rule. See, e.g., Miller, 784 F.2d at 731 ; accord Deutsch v. Comm'r, 599 F.2d 44, 46 (2d Cir. 1979) (citations omitted). These circuits hold that, where the taxpayer cannot show an actual postmark, the court may not accept &......
  • Comptroller of Md. v. Myers, 0095, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • July 1, 2021
    ...other extrinsic evidence could not be offered as proof of a timely mailing. See, e.g. , Miller , 784 F.2d at 730 ; Deutch v. Comm'r. , 599 F.2d 44, 46 (2d Cir. 1979), cert. denied , 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980) ; Parr v. United States , 694 F. Supp. 146, 147 (D. Md. 1......
  • Philadelphia Marine Trade Association v. C.I.R., No. 06-3798.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • April 15, 2008
    ...of a postmark or registration receipt, that he mailed the document on August 4, 1977, well before a September 27, 1977 deadline. 599 F.2d 44, 44-46 (2d Cir.1979).11 It reasoned that § 7502 demonstrates a "penchant for an easily applied, objective standard." Id. at 46. The Sixth Ci......
  • Shirley v. United States, CIVIL ACTION NO. 3:11-CV-323-DW
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • February 8, 2013
    ...courts holding that the "exceptions embodied in [§7502] [a]re exclusive and complete." Id. at 731 (following Deutsch v. Comm'r, 599 F.2d 44, 46 (2nd Cir. 1979), and other cases cited therein).Stocker 2013 WL 174227 at *5. The panel in Stocker then continued in a footnote to conced......
  • Request a trial to view additional results

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