Rappaport v. Comm'r of Internal Revenue , Docket No. 2415-70.
| Decision Date | 01 February 1971 |
| Docket Number | Docket No. 2415-70. |
| Citation | 55 T.C. 709 |
| Parties | JACOB L. RAPPAPORT, PETITIONER, V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Jacob L. Rappaport, pro se.
Ronald A. Wagenheim and Marwin A. Batt, for the respondent.
The envelope containing the petition was deposited in a U.S. Post Office on the 90th day of the period provided by sec. 6213(a), I.R.C. 1954. It was not received and the petition was not filed until after the expiration of the assessment period. The envelope bore no postmark. Held, evidence that the envelope would have been postmarked within the 90-day period is inadmissible and respondent's motion to dismiss for lack of jurisdiction is granted.
This case is before us on a motion to dismiss the petition herein for lack of jurisdiction.
Petitioner's legal residence was New York, N.Y., at the time of the filing of the petition.
A statutory notice of deficiency in Federal income tax was mailed to petitioner on January 23, 1970. It asserted deficiencies as follows:
+--------------------------------------+
¦ ¦ ¦Addition to tax, ¦
+------+------------+------------------¦
¦Year ¦Deficiency ¦sec. 6653(a) ¦
+------+------------+------------------¦
¦ ¦ ¦ ¦
+------+------------+------------------¦
¦1964 ¦$45,844.56 ¦ ¦
+------+------------+------------------¦
¦1965 ¦16,683.22 ¦$831.91 ¦
+--------------------------------------+
At 7:30 p.m. on April 23, 1970 (a Thursday), the 90th day after the statutory notice was mailed, petitioner deposited an envelope containing his petition in the Grand Central Post Office, located at Lexington Avenue and 45th Street, New York, N.Y. The envelope was properly addressed and had the proper postage affixed. It was not received and the petition was not filed until after the 90-day period provided by section 6213(a)1 had expired. The envelope bore no postmark.
The question before us is whether petitioner should be afforded the opportunity to present evidence as to when the envelope would have been postmarked by the U.S. Post Office. If the requirement of a postmark is the sine qua non of timely filing, such evidence would be irrelevant.
Section 75022 provides the circumstances under which timely mailing, as against timely receipt, will be considered as satisfying the requirements for timely filing. Respondent maintains that this section does not apply unless the mailing wrapper contains a postmark. Since the envelope herein did not have any postmark, respondent contends that petitioner must fail because his petition was not timely received. We have regretfully concluded that respondent's motion should be granted.
In a series of decisions, this Court has consistently taken the position that the requirement of a postmark is essential to obtaining the benefits of section 7502(a). Thus, in Luther A. Madison, 28 T.C. 1301 (1957), we pointed out ‘That section (7502) cannot be and was not intended to be satisfied unless a postmark date has been stamped on the ‘cover.“ See 28 T.C.at 1302. Again, in C. Louis Wood, 41 T.C. 593 (1964), affd. 338 F.2d 692 (C.A. 9, 1964), we stated that ‘The cover here involved bore no postmark date so the provisions of section 7502(a) will not help petitioners' and that ‘To permit a taxpayer to avoid the risk that a document placed in the mail would not be postmarked, Congress added section 7502(c)(1).’ See 41 T.C.at 595.3 While there are factual distinctions between these cases and the instant situation, the foundation for decision is clear.
We recognize that there may be some logical inconsistency between the rule applicable where there is no postmark at all and the rationale of the cases which permit a taxpayer, in the situation where there is an illegible postmark, to sustain his burden by submitting evidence of time of mailing to prove when the postmark was made. Skolski v. Commissioner, 351 F.2d 485 (C.A. 3, 1965), reversing and remanding an unreported order of this Court; Alexander Molosh, 45 T.C. 320 (1965); sec. 301.7502-1(c)(1)(iii)(a), Income Tax Regs. But the fact remains that, in the latter category of cases, there is a postmark, so that there is at least prima facie compliance with the requirements of section 7502(a).
After careful consideration, we have concluded that we should continue to adhere to our position that the risk of postmarking is on the taxpayer. C. Louis Wood, supra. See Rich v. Commissioner, 250 F.2d 170, 174 (C.A. 5, 1957). We note that petitioner had...
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