Foerster v. Commissioner, Docket No. 12957-80.
| Decision Date | 27 January 1981 |
| Docket Number | Docket No. 12957-80. |
| Citation | 41 TCM (CCH) 775,1981 TC Memo 32 |
| Parties | James A. Foerster and Muriel Foerster (Deceased) v. Commissioner. |
| Court | U.S. Tax Court |
Sidney A. Soltz, for the petitioners. David M. Kirsch, for the respondent.
On September 5, 1980, respondent filed a motion to dismiss the above-entitled case for lack of jurisdiction on the ground that the petition was not filed with the Tax Court within 90 days from the date of the mailing of the notice of deficiency as required by section 6213(a), I.R.C. 1954.1 Pursuant to notice previously given, a hearing was held on this motion in Miami, Florida, on December 1, 1980. At the hearing evidence was received.
The facts in this case show that on March 26, 1980, respondent mailed to petitioners at their proper address a statutory notice of deficiency. On June 12, 1980, counsel for petitioners placed a petition in an envelope addressed to the United States Tax Court, 400 Second Street, N.W., Washington, D.C. 20217, and mailed it by ordinary mail. With the petition was a request for place of trial. Sometime later petitioners' counsel checked to see if he had received a copy of the request for place of trial stamped "granted." When he found that he had not been served with the granted copy of his request for place of trial, he telephoned the Office of the Clerk of the United States Tax Court and was told that a backlog existed in processing petitions but that as a protective measure he should file another petition marking the same "duplicate." Counsel for petitioners had retained a photostatic copy of the petition mailed to the Tax Court on June 12, 1980. From this copy he had typed another petition identical in wording to the petition mailed to the Court on June 12, 1980. Petitioners' attorney signed the original of the petition as retyped and where the word "date" appeared he wrote in "June 12, 1980." On July 10, 1980, petitioners' counsel placed this petition in an envelope addressed "United States Court, 400 Second Street, N.W., Washington, D.C. 20217" and mailed it to the Court by certified mail. This petition was received and stamped "filed" on July 14, 1980. No other petition was received by the Court with respect to this case.
It is petitioners' position that since their attorney mailed a petition in an envelope properly addressed to the Tax Court by ordinary mail 12 days prior to the last day provided by statute for filing a petition with the Court, the petition filed on July 14, 1980, should be considered as being the petition mailed on June 12, 1980, which under section 7502 would be timely filed. Petitioners' argument is effectively that they should not suffer because of a loss of a letter by the United States Postal Service.
Although the facts here present arouse a sympathy for petitioners, the jurisdiction of this Court is strictly limited by statute. The jurisdiction of this Court is provided for in section 6213(a). Under that statute the Court acquires jurisdiction only if, within 90 days after the notice of deficiency as authorized in section 6212 is mailed, the taxpayer files a petition with the Court for a redetermination of the deficiency. There is no exception to this jurisdictional requirement. However, section 7502(a) does provide that a petition timely mailed shall be treated as timely filed under certain circumstances.
Section 7502(a) provides that if any document required to be filed within a prescribed period under the provisions of the internal revenue laws is after such period delivered by U.S. mail to the officer or office with which it is required to be filed, the date of the U.S. postmark stamped on the cover in which the document is mailed shall be deemed to be the delivery date of the document if the postmark falls within the period prescribed for filing the document. Clearly, petitioners do not meet...
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