Molosh v. Comm'r of Internal Revenue

• Decision Date: 30 December 1965
• Docket Number: Docket No. 4519-65.
• Citation: 45 T.C. 320
• Parties: ALEXANDER MOLOSH AND LILLIAN MOLOSH, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

45 T.C. 320

ALEXANDER MOLOSH AND LILLIAN MOLOSH, PETITIONERS,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 4519-65.

Tax Court of the United States.

Filed December 30, 1965.

Jerome Kamerman, for the petitioners.

Andrew S. Coxe, for the respondent.

Petition was received by ordinary mail and filed in the Tax Court on July 23, 1965, which was the 91st day after the notice of deficiency was mailed. The postmark on the covering envelope is illegible but indicates that it was mailed from the General Post Office Station, New York, N.Y., 10001. The postmark has a ‘PM’ notation on it, evidencing the fact that it was mailed sometime after 12 m. on the date of mailing. First-class mail which is postmarked July 23 ‘PM’ at the General Post Office Station, New York N.Y., cannot under any circumstances be delivered in Washington, D.C., on the same day of mailing. Held, petitioners have met their ‘burden of proving the time when the postmark was made’ as required by regulations section 301.7502-1(c)(1)(iii)(a) and that this time was within 90 days after the notice of deficiency was mailed, thus making the petition timely within sections 6213(a) and 7502(a), I.R.C. 1954.

OPINION

ARUNDELL, Judge:

Respondent mailed a notice of deficiency to petitioners on April 23, 1965. The 90-day period expired on Thursday, July 22, 1965, which was not a holiday in the District of Columbia. The petition was filed with the Court on July 23, 1965, the 91st day.

On September 23, 1965, the respondent filed a motion to dismiss for lack of jurisdiction.

On September 27, 1965, this Court ‘ORDERED: That this case be dismissed for lack of jurisdiction unless the petitioners on or before October 29, 1965 filed written objection to respondent's motion * * * .’

On October 5, 1965, petitioners filed an objection to respondent's motion to dismiss and attached thereto an affidavit of Brenda Spanierman, an employee of counsel for petitioners, stating—

That on the 22nd day of July, 1965, deponent filed the petition herein with the Tax Court of the United States, Washington, D.C., by depositing same, enclosed in a postpaid properly addressed wrapper in an official depository under the exclusive care and custody of the United States post office in the City and State of New York.

On October 7, 1965, this Court ordered respondent's motion to dismiss calendared for hearing on October 27, 1965, and the hearing was held on that date. As a result of this hearing, an ‘Order of Dismissal for Lack of Jurisdiction’ was entered on November 2, 1965.

On November 5, 1965, petitioners, by their counsel, filed a motion ‘for leave to withdraw the original envelope in which the petition herein was mailed to the Tax Court, for the purpose of an examination of said envelope by the Post Office Department to ascertain, if possible, the postmark on such envelope. By order dated November 9, 1965, this motion was granted.

On November 17, 1965, petitioners filed a motion for reconsideration and attached thereto a letter from the postmaster of the U.S. Post Office in New York, N.Y., stating that—

We have examined the manila envelope addressed to the Tax Court of the United States, Washington, D.C. 20044 on which your name appears as the mailer and which bears the number 4519-65.

The postmark on said envelope is illegible but indicates that it was mailed from the General Post Office Station, New York, N.Y. 10001 and on the bottom of the fifteen cent stamp there appears a PM notation evidencing the fact that it was mailed sometime after 12:00 Noon on the date of mailing.

As it is claimed this article was delivered on July 23, 1965 it is apparent that it was mailed and postmarked on some date prior to the date of receipt.

First Class mail which is postmarked July 23 ‘PM’ at the General Post Office Station, New York, N.Y., cannot under any circumstances be delivered in Washington, D.C., on the same day of mailing.

Petitioner's motion for reconsideration was calendared for hearing on December 8, 1965, and the hearing was held on that date.

The applicable provisions of sections 6213 and 7502 of the 1954 Code are in the margin.¹

Subsection (a) of section 301.7502-1 of the regulations provides that if the requirements of section 7502 are met, ‘a document shall be deemed to be filed on the date of the postmark stamped on the cover in which such document was mailed.’ Subsection (c) provides:

(c) Mailing requirements. (1) Section 7502 is not applicable unless the document is mailed in accordance with the following requirements:

* * * 10*

(iii)(a) * * * 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. * * * If the postmark on the envelope or wrapper is not legible, the person who is required to file the document has the burden of proving the time when the postmark was made. * * * In Skolski v. Commissioner, 351 F.2d 485 (Oct. 22, 1965), the U.S. Court of Appeals, Third Circuit, reversed and remanded an order of this Court dismissing for lack of jurisdiction a petition received by this Court 2 days after the period of 90 days had expired. In that case the postmark on the cover in which the petitioner was mailed was illegible and for that reason we held that the taxpayers were not entitled to the benefit of section 7502(a). The Third Circuit, in holding this to be error, quoted the above provisions of the regulations, and said in part:

We are satisfied that they (the taxpayers) were entitled, and should have been permitted, to prove, if they could, what the illegible date on the postmark actually was, i.e., the date...