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

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: Before OAKES and GURFEIN, Circuit Judges, and PIERCE; PIERCE
• Citation: 599 F.2d 44
• Parties: 79-1 USTC P 9407 David DEUTSCH, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. ocket 79-4004.
• Decision Date: 30 May 1979
• Docket Number: D,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

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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. &...