Malekzad v. Comm'r of Internal Revenue , Docket No. 21285-80.

• Decision Date: 09 June 1981
• Docket Number: Docket No. 21285-80.
• Citation: 76 T.C. 963
• Parties: JAHANGIR MALEKZAD and JILA MALEKZAD, PETITIONERS v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

76 T.C. 963

JAHANGIR MALEKZAD and JILA MALEKZAD, PETITIONERS

v.COMMISSIONER of INTERNAL REVENUE, RESPONDENT

Docket No. 21285-80.

United States Tax Court

Filed June 9, 1981.

The envelope in which the petition in this case was mailed bore a private postage meter mark dated within the 90-day period and also bore a U.S. Postal Service postmark dated beyond the 90-day period. Held: The U.S. Postal Service postmark is controlling and the petition was not timely filed within the 90-day period under secs. 6213(a) and 7502, I.R.C. 1954. Petitioners contend that they were entitled to a 150-day period to file their petition because they were outside the United States the day the statutory notice was received at their home. Held, that where petitioners were in the United States on the date the statutory notice was mailed to their last known address and where they left for Mexico on the date the notice was received at their home but returned to their home the following day, and received the notice at that time, petitioners were not entitled to the 150-day period allowed for persons outside the United States. Cowan v. Commissioner, 54 T.C. 647 (1970), followed; Lewy v. Commissioner, 68 T.C. 779 (1977), and Levy v. Commissioner, 76 T.C. 228 (1981), distinguished. William G. Morschauser, for the petitioners.

Michael C. Cohen, for the respondent.

OPINION

PARKER , Judge:

This matter comes before the Court on respondent's motion to dismiss for lack of jurisdiction on the ground that the petition was not timely filed within the 90-day period prescribed by sections 6213(a) and 7502. ¹ Petitioners contend that their petition was timely filed within the 90-day period under those sections. Alternatively, petitioners assert that they were entitled to the 150-day period allowed for persons outside the United States, because they were away on a weekend trip to Mexico at the time the statutory notice was delivered to their home.

On August 19, 1980, respondent mailed a statutory notice of deficiency by certified mail to petitioners at their last known address, 9472 Rembert Lane, Beverly Hills, Calif. 90210. A copy of that statutory notice was also sent to petitioners' counsel. On Saturday, August 23, 1980, the notice of deficiency was delivered by the U.S. Postal Service to petitioners' home. At the time of delivery, petitioners were not at home, and another resident of petitioners' household signed for the document.² Petitioners had left their home early that Saturday morning for a weekend trip to Mexico. They returned from Mexico the next day, arriving home late Sunday night, and actually received the statutory notice at that time.

Monday, November 17, 1980, was the 90th day after the mailing of the statutory notice of deficiency, and that day was not a legal holiday in the District of Columbia. The petition in this case was received and filed at the Tax Court on November 24, 1980, which date was 97 days after the mailing of the statutory notice.

The envelope in which the petition was mailed to the Court was not torn or damaged in any way when it was received at the Court. However, the upper right-hand corner of the mailing label (bearing the typed address of the Tax Court and the printed return address of petitioners' counsel) on that envelope had been folded or diagonally creased and then straightened back into the proper position, with two pieces of clear Scotch tape affixed to the top edge and along the right edge of that mailing label. The two pieces of clear Scotch tape were not on the envelope when it left the office of petitioners' counsel. The record does not show when or by whom the Scotch tape was affixed to the envelope and mailing label. Whatever may have happened to the mailing label during the envelope's journey to the Tax Court, there is no indication that it resulted in any delay in delivery to the Court.

The envelope in which the petition was mailed to the Court bore a private postage meter mark for Riverside, Calif., dated November 14, 1980, which date was 87 days after the mailing of the statutory notice. That envelope also bore a U.S. Postal Service postmark for La Mirada, Calif., dated November 21, 1980. The date of November 21, 1980, was 94 days after the mailing of the statutory notice. The petition was received at the Tax Court on November 24, 1980, 97 days after the mailing of the statutory notice.

Under section 6212(a),³ respondent is authorized, upon determining a deficiency in Federal income tax, to send a notice of deficiency to the taxpayer by certified mail or registered mail. Under section 6213(a), ⁴ the taxpayer, in turn, is given 90 days (or 150 days if the notice is addressed to a person outside the United States) after the notice of deficiency is mailed to him within which to file a petition with this Court. That 90-day (or 150-day) period is jurisdictional, and we must dismiss the petition for lack of jurisdiction if it is not timely filed. Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980); Estate of Moffat v. Commissioner, 46 T.C. 499 (1966).

The envelope containing the petition in this case was received at the Tax Court on the 97th day after the mailing of the statutory notice of deficiency. Petitioners argue that it was nonetheless timely, relying upon section 7502 ⁵ under which timely mailing can be treated as timely filing if certain conditions are met. However, to come within the terms of section 7502, the petition must have been timely mailed on or before the last date for filing. Petitioners say that the petition was timely mailed on the date shown by the private postage meter mark, which date was the 87th day after the mailing of the statutory notice of deficiency. However, in addition to that private postage meter mark, the envelope also bore a postmark made by the U.S. Postal Service.

The first issue to be decided is which postmark is controlling. As to nonofficial postmarks, section 7502(b) simply provides that the timely mailing as timely filing provisions “shall apply in the case of postmarks not made by the United States Postal Service only if and to the extent provided by regulations prescribed by the Secretary.” (Emphasis added.) This delegation of rule-making power is both broad and unequivocal. Section 301.7502-1(c)(1)(iii)( b), Proced. & Admin. Regs., in pertinent part, provides that:

If the envelope has a postmark made by the United States Post Office in addition to the postmark not so made, the postmark which was not made by the United States Post Office shall be disregarded, and whether the envelope was mailed in accordance with this subdivision shall be determined solely by applying the rule [applicable to postmarks made by the Postal Service].

These regulations are legislative in nature and are not inconsistent with the statute nor an arbitrary or unreasonable means of carrying out the legislative purpose. Therefore, we uphold the regulations making the U.S. Postal Service postmark the controlling one.⁶ We conclude that here the private postage meter mark must be disregarded, and the postmark made by the Postal Service is the controlling one in this case.

That brings us to the rule applicable to envelopes or mailing covers bearing a U.S. Postal Service postmark. Section 301.7502-1(c)(1)(iii)( a), Proced. & Admin. Regs., provides that:

If the postmark on the envelope or wrapper is made by the United States Post Office, such postmark must bear a date on or before the last date, or the last day of the period, prescribed for filing the document. If the postmark does not bear a date on or before the last date, or the last day of the period, prescribed for filing the document, the document will be considered not to be filed timely, regardless of when the document is deposited in the mail. Accordingly, the sender who relies upon the applicability of section 7502 assumes the risk that the postmark will bear a date on or before the last date, or the last day of the period, prescribed for filing the document, but see subparagraph (2) of this paragraph with respect to the use of registered mail or certified mail to avoid this risk. * * * [Emphasis added.]

Since the U.S. Postal Service postmark here was dated beyond the 90th day, petitioners cannot rely upon the timely mailing as timely filing provisions to bring themselves within the 90-day period. Here, as in other cases where the U. S. Postal Service postmark is dated beyond the last date for filing the petition, petitioners are precluded from introducing extrinsic evidence to show that the petition was in fact mailed earlier. Shipley v. Commissioner, 572 F.2d 212, 214 (9th Cir. 1977), affg. a Memorandum Opinion of this Court; Drake v. Commissioner, 554 F.2d 736 (5th Cir. 1977), affg. an unreported Tax Court order; Boccuto v. Commissioner, 277 F.2d 549 (3d Cir. 1960); Estate of McGarity v. Commissioner, 72 T.C. 253 (1979); Sylvan v. Commissioner, 65 T.C. 548, 552 (1975). The presence of a Postal Service postmark and the date of such postmark are legally conclusive, and petitioners cannot go behind that fact.

In a final attempt to go behind the date on the Postal Service postmark, petitioners argue that their situation is controlled by Perry Segura & Associates, Inc. v. Commissioner, T.C. Memo. 1975-80. That case is distinguishable on its facts. In Perry Segura, the original envelope or mailing wrapper had been completely destroyed at some point in the mailing process and the Postal Service had rewrapped the petition in an official business envelope of the Postal Service without any postmark. In that case, the Court permitted the taxpayer to introduce extrinsic evidence to show timely mailing. The Court held that the risk the taxpayer assumed by using the mails was that the envelope would not be postmarked before the 90th day, and not the risk that the postmarked envelope in which the petition was mailed would be destroyed in transit. Here, the original envelope was not torn or damaged in any way...