Joannou v. Comm'r of Internal Revenue, Docket No. 83363.

• Decision Date: 11 February 1960
• Docket Number: Docket No. 83363.
• Citation: 33 T.C. 868
• Parties: GEORGE JOANNOU, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
• Court: U.S. Tax Court

33 T.C. 868

GEORGE JOANNOU, PETITIONER,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

Docket No. 83363.

Tax Court of the United States.

Filed February 11, 1960.

Glen E. Hardy, Esq., and W. B. Riley, Esq., for the respondent.

JURISDICTION— 90-DAY PERIOD— MOTION TO CONTINUE TIME FOR FILING.— A motion clearly and solely for the purpose of asking the Court to continue the 90-day period for filing a petition, which motion was received by the Court within that period, was not a petition. The Court has no jurisdiction because no petition was filed within the 90-day period.

OPINION.

MURDOCK, Judge:

The Commissioner has moved to dismiss this proceeding for lack of jurisdiction. The parties were heard on that motion and have filed briefs.

The Commissioner duly mailed a notice of deficiency to the petitioner on June 23, 1959. A taxpayer receiving such a notice has 90 days within which to file a petition with the Tax Court in order to give this Court jurisdiction under the Code. The 90th day in this case was September 21, 1959, and on that day the Tax Court received a document of which the following is an exact copy:

THE TAX COURT OF THE UNITED STATES

+------------------------------------------------+
                ¦GEORGE JOANNOU,                  ¦)¦            ¦
                +---------------------------------+-+------------¦
                ¦PETITIONER,                      ¦)¦            ¦
                +---------------------------------+-+------------¦
                ¦v.                               ¦)¦Docket No. _¦
                +---------------------------------+-+------------¦
                ¦COMMISSIONER OF INTERNAL REVENUE,¦)¦            ¦
                +---------------------------------+-+------------¦
                ¦RESPONDENT                       ¦)¦            ¦
                +------------------------------------------------+
                

MOTION FOR EXTENSION OF TIME

Comes now the petitioner by his attorney, GOLDY M. ROSEN, and moves that this Court extend the time of ninety (90) days previously granted to reply to a determination of income tax liability for an additional thirty (30) days, or October 21, 1959.

In support of this motion, counsel for the petitioner shows that her assistant, who has been working up the details of the facts in this case, was hospitalized for a period ended August 23, 1959 and there was no other assistant in her office sufficiently familiar with this proceeding to undertake to prepare all the facts pertaining in this matter, and that as a result of his absence, he will be unable to prepare on time the pertinent facts necessary to file said petition.

WHEREFORE, it is prayed that this motion be granted.

(s) . . . GOLDY M. ROSEN Attorney for Petitioner 225 West 34th Street New York 1, New York That was the only thing received by the Tax Court within the 90-day period relating in any way to a proceeding to contest a deficiency determined against George Joannou.

The jurisdiction of the Court, therefore, depends upon whether or not that document can be regarded as a petition. The Commissioner contends that it cannot be regarded as a petition filed within the 90-day period in order to give the Tax Court jurisdiction because it is perfectly clear from the document itself that it was not intended and does not purport to be a petition but on the contrary was intended to be and is a motion to permit the later filing of a petition. There can be no doubt from the document that this reasoning of the Commissioner is sound and since no petition was filed within the 90-day period the proceeding must be dismissed for lack of jurisdiction.

The Tax Court has no authority to extend the 90-day period fixed by Congress as the period within which the petition must be filed in order to give the Tax Court jurisdiction. Rich v. Commissioner, 250 F.2d 170, affirming a dismissal by the Tax Court of a proceeding for lack of proceeding for lack of jurisdiction. The Tax Court in that case received a letter from an attorney within the 90-day period enclosing a check for $10 as a filing fee and advising the Court that a petition had been prepared and forwarded to his client (an inmate of the Federal penitentiary at Danbury, Connecticut) for signature and mailing to the Court. The petition was not filed within the 90-day period. The Court of Appeals for the Fifth Circuit said: ‘This is a hard...