Lurkins v. Comm'r of Internal Revenue, Docket No. 4339-67.

• Decision Date: 31 January 1968
• Docket Number: Docket No. 4339-67.
• Citation: 49 T.C. 452
• Parties: EARL H. C. LURKINS, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

49 T.C. 452

EARL H. C. LURKINS, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 4339-67.

Tax Court of the United States.

Filed January 31, 1968.

Earl H. C. Lurkins, pro se.

Andrew S. Coxe, for the respondent

Petition was mailed in envelope timely postmarked but addressed to ‘U.S. Board of Tax Appeals, Washington, D.C. 20044.’ It was returned to the writer by the Post Office in Washington stamped ‘unknown.’ Upon receipt of the returned envelope petitioner apparently enclosed that envelope in another envelope addressed to the Tax Court of the United States and placed it in the mail. The postmark on this envelope was not within 90 days after the notice of deficiency was mailed to petitioner and the petition was received and filed by the Tax Court 101 days after the notice of deficiency was mailed. Held: The envelope in which the petition was originally mailed was not property addressed within the meaning of sec. 7502 of the 1954 Code and that section is not applicable. The petition was not timely filed under sec. 6213 of the Code and the Tax Court does not have jurisdiction. Respondent's motion to dismiss granted.

OPINION

DRENNEN, Judge:

A statutory notice of deficiency in the income tax of petitioner, an attorney, for the year 1959 was mailed to petitioner on March 28, 1963, and a statutory notice of deficiency in the income tax of petitioner for the year 1960 was mailed to petitioner on May 19, 1967. Petitioner filed a petition, bearing a heading ‘United States Board of Tax Appeals,‘ seeking a ‘redetermination of the deficiency set forth by the Commissioner of Internal Revenue in his notice of deficiency bearing symbols AP:STL:CLS:KG:mb for the years 1959, 1960, and 1961, ‘ not date of such notice of deficiency being mentioned. The reference symbols are the same as those appearing on the notice of deficiency for the year 1960 but are different from those appearing on the notice of deficiency for 1959. Despite the reference to the year 1961, the petition assigned error only with respect to the years 1959 and 1960.

The aforesaid petition was mailed in an envelope addressed to ‘U.S. Board of Tax Appeals, Washington, D.C. 20044’ and bore a postmark from St. Louis, Mo., dated August 15 p.m., 1967. This envelope was stamped at the Benjamin Franklin Station of the U.S. Post Office in Washington, D.C., ‘Unknown,‘ and ‘Returned to Writer.’ Apparently, on receipt of the returned envelope petitioner enclosed that envelope in another envelope addressed to ‘Tax Court of the United States, 12th & Constitution Ave., N.W., Washington, D.C. 20044’ and placed it in the U.S. mail where it was postmarked August 23 p.m., 1967. The petition, enclosed in the inner envelope, was received and filed by the Tax Court of the United States on August 28, 1967.

Respondent filed a motion to dismiss the petition for lack of jurisdiction for the year 1959 on the ground that no deficiency in tax had been determined for that year in the statutory notice before the Court, and for the year 1960 on the ground that the petition was not filed within the time prescribed by applicable provisions of the Internal Revenue Code of 1954. This motion was served upon petitioner and set for hearing on the Motions Calendar at Washington, D.C., on November 15, 1967. There was no appearance on behalf of petitioner, and he filed no objection to respondent's motion. It appearing that the notice of deficiency pertaining to the year 1959 was mailed to petitioner at least 4 years prior to the date this petition was filed, and for other reasons appearing of record, respondent's motion to dismiss for lack of jurisdiction with respect to the year 1959 was granted. Respondent's motion insofar as it related to the taxable year 1960 was taken under advisement by the Court and the parties were given until December 13, 1967, to file written memoranda in support of their respective positions on respondent's motion as related to the year 1960.

The only document subsequently filed by petitioner was a letter dated December 14, 1967, in which he stated, ‘The envelope which I enclosed, was filed in time, but was returned to me with the notation not found, even though you are the only Board of Tax Appeals in Washington, D.C. and the salutation was taken from your book of rules.’

Under section 6213 of the 1954 Code a petition for redetermination of deficiency may be filed in the Tax Court within 90 days after the notice of deficiency is mailed to the taxpayer. The 90-day filing requirement is jurisdictional and this Court has no jurisdiction unless the petition is timely filed. Estate of Frank Everest Moffat, 46 T.C. 499. It is clear in this case that the actual filing of the petition was untimely because it was not received and filed in the Tax Court until 101 days after the mailing of the notice of deficiency. Consequently, this Court has no jurisdiction and respondent's motion must be granted unless petitioner can bring himself within the provisions of section 7502 of the Code.

Section 7502 provides a statutory exception to the 90-day filing requirement of section 6213 of the Code. It was first enacted in the 1954 Code to avoid the inequities and hardships of mails not functioning properly. Bloch v. Commissioner, 254 F.2d 277; Boccuto v. Commissioner, 277 F.2d 549; Skolski v. Commissioner, 351 F.2d 485. Section 7502(a)(1) provides that if any document required to be filed within a prescribed period under authority of any provision of the internal revenue laws is, after such period, delivered by U.S. mail to the office with which such document is required to be filed, the date of the U.S. postmark stamped on the cover in which such document is mailed shall be deemed to be the date of delivery of the document. Section 7502(a)(2) provides that the subsection shall apply only if the postmark date falls within the prescribed period for filing such document and the document was, within the time prescribed above, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the office with which the document is required to be filed.

The language of section 7502 is clear, explicit, and strictly limited. Rich v. Commissioner, 250 F.2d 170; Nathaniel...