Fishman v. CIR, 349
| Decision Date | 07 January 1970 |
| Docket Number | Docket 33705.,No. 349,349 |
| Citation | 420 F.2d 491 |
| Parties | Irving and Helen FISHMAN, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Morton L. Ginsberg, New York City, for petitioners-appellants.
John A. Townsend, Dept. of Justice, Washington, D. C. (Johnnie M. Walters, Asst. Atty. Gen., Tax Division, Dept. of Justice, Washington, D. C., Lee A. Jackson and Thomas L. Stapleton, Washington, D. C., on the brief), for respondent-appellee.
Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.
This is an appeal from an order of the Tax Court of the United States, Charles R. Simpson, Judge, dismissing appellants' petition for a redetermination of a tax deficiency (for 1964) as untimely filed and thus for lack of jurisdiction. 51 T.C. 869 (1969). The Commissioner mailed appellants notice of tax deficiency on June 7, 1967. 26 U.S.C. § 6213(a) allows 90 days for a taxpayer to petition the Tax Court for a redetermination of the deficiency, and the 90 days expired on September 5, 1967. Appellants mailed their petition allegedly on September 5, but the only objective proof of this was the date on the private postage meter mark on the envelope reading September 5. The letter was received by the Tax Court on Monday, September 11. The earliest the letter could have reached Washington was after business hours on Friday, September 8. The parties stipulated that the ordinary mailing time from New York City to Washington was one day.
The Tax Court held that Treasury Regulation Sec. 301.7502-1(c) (iii) (b)1 was valid and that thereunder the petition was not timely filed, and dismissed the action.
We affirm the dismissal on the opinion of Judge Simpson in the Tax Court.
1 Sec. 301.7502-1 Timely mailing treated as timely filing.
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(c) Mailing Requirements. (1) * * *
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(iii) * * *
(b) If the postmark on the envelope or wrapper is made other than by the United States Post Office, (1) the postmark so made must bear a date on or before the last date, or the last day of the period, prescribed for filing the document, and (2) the document must be received by the agency, officer, or office with which it is required to be filed not later than the time when a document contained in an envelope or other appropriate wrapper which is properly addressed and mailed and sent by the same class of mail would ordinarily be received if it...
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Robinette v. Commissioner of Internal Revenue, 123 T.C. No. 5 (U.S.T.C. 7/20/2004)
...no evidence as to the cause of a delay. Petitioner has failed to meet the requirements of the regulation. See Fishman v. Commissioner, 420 F.2d 491, 492 (2d Cir. 1970), affg. 51 T.C. 869 (1969); cf. Jones v. Commissioner, T.C. Memo. 1998-197 (the taxpayer met requirements of non-U.S.-postma......
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Robinette v. Comm'r of Internal Revenue
...no evidence as to the cause of a delay. Petitioner has failed to meet the requirements of the regulation. See Fishman v. Commissioner, 420 F.2d 491, 492 (2d Cir.1970), affg. 51 T.C. 869, 1969 WL 1563 (1969); cf. Jones v. Commissioner, T.C. Memo.1998–197 (the taxpayer met requirements of non......
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Sylvan v. Comm'r of Internal Revenue
...intent to do so.’ Samuel J. King, 51 T.C. 851, 855 (1969). See also Irving Fishman, 51 T.C. 869, 874 (1969), affd. per curiam 420 F.2d 491 (2d Cir. 1970); P. P. Leventis, Jr., 49 T.C. 353, 355 (1968). Certainly there is no ‘clear congressional intent’ underlying this remedial statute that t......
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Pearson v. Comm'r
...by private postage meters could bear any date desired by the sender." Fishman v. Commissioner, 51 T.C. 869, 872-873 (1969), aff'd, 420 F.2d 491 (2d Cir. 1970). Congress thus "refused to apply the same rules to both metered and unmetered mail." Ibid. We have accordingly recognized that the o......