Ruegsegger v. Comm'r of Internal Revenue , Docket No. 3057—76.

• Decision Date: 11 July 1977
• Docket Number: Docket No. 3057—76.
• Citation: 68 T.C. 463
• Parties: PAUL RUEGSEGGER AND FREYA D. RUEGSEGGER, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

68 T.C. 463

PAUL RUEGSEGGER AND FREYA D. RUEGSEGGER, PETITIONERS

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 3057—76.

United States Tax Court

Filed July 11, 1977.

Petitioners mailed their petition from New York, N.Y., on the 89th day following the mailing of the notice of deficiency. The envelope containing the petition arrived at the Tax Court 5 days later bearing no postmark or any kind. Respondent filed a motion to dismiss for lack of jurisdiction. Held: Under the circumstances of this case the rule in Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), cert. denied404 U.S. 940 (1971), will not be followed. Accordingly, our opinion herein is controlled by Sylvan v. Commissioner, 65 T.C. 548 (1975), and not Rappaport v. Commissioner, 55 T.C. 709 (1971), affd. without opinion 456 F.2d 1335 (2d Cir. 1972). Held, further, petitioners have satisfied their burden to show the petition in this case was timely filed. Warren Kahn, for the petitioners.

Jack H. Klinghoffer, for the respondent.

OPINION

IRWIN, Judge:

This matter is before us on respondent's ‘Motion to Dismiss for Lack of Jurisdiction’ filed May 25, 1976. It is respondent's contention that the petition in this case was not filed within the time prescribed by section 6213(a) of the Internal Revenue Code of 1954.¹

Respondent mailed a statutory notice of deficiency to petitioners on January 9, 1976. The last day for timely filing a petition under section 6213(a) was Thursday, April 8, 1976, which was not a legal holiday in the District of Columbia.

Petitioners' petition was received through the mail in the Tax Court mailroom on Monday, April 12, 1976, and stamped accordingly at 8:16 a.m. Such date was 94 days after the mailing of the notice of deficiency. At 9:50 a.m. that same day the petition was stamped ‘Filed’ by one of the employees in the petition section of the Court.

The envelope containing the petition was mailed in New York, N.Y., petitioners' residence at the time of filing, but bore no postmark on its arrival at the Court. The envelope was properly addressed and had a sufficient amount of postage attached.

The petition was obviously not received by the Court within the 90-day period prescribed in section 6213(a). Accordingly, petitioners' only avenue of relief is section 7502. Section 7502 provides that a petition received through the course of the mail after the 90-day period will be deemed filed on the date of the postmark on the envelope containing the petition if such postmark bears a timely date.

The question before us is not new. We must decide whether evidence of timely mailing is admissible as evidence of timely filing in the absence of a postmark on the envelope in which the petition was mailed. We have spent many long and tumultuous hours considering this issue in the past, with the result that the Court is strongly divided on the merits. See Sylvan v. Commissioner, 65 T.C. 548 (1975). It is not our intention to reconsider the issue at this time. Rather, we are simply confronted with the consequences flowing from the Sylvan decision.

In Sylvan we overruled our decision in Rappaport v. Commissioner, 55 T.C. 709 (1971), affd. in open court without opinion 456 F.2d 1335 (2d Cir. 1972), and held that evidence of the date of mailing was admissible to show the date of the postmark which would have been stamped on the envelope containing the petition had the postal workers performed their duties properly.

Respondent raises the issue, however, whether, under the rule expressed in Golsen v. Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir. 1971), cert. denied 404 U.S. 940 (1971), we must follow our decision in Rappaport rather than our decision in Sylvan.

In Golsen we held ‘that better judicial administration requires us to follow a Court of Appeals decision which is squarely in point where appeal from our decision lies to that Court of Appeals and to that court alone.’ (Fn. refs. omitted.) The Golsen rule was fashioned to promote efficient and harmonious judicial administration. It was created by this Court through the exercise of sound judgment and has been closely adhered to ever since.

Underlying the Golsen rule is the belief that the Court of Appeals to which an appeal lies will follow its own prior opinion on the issue in question at least in part on principles of stare decisis. However, the doctrine of stare decisis has less significance in areas involving important jurisdictional questions. See Sylvan v. Commissioner, supra.

In Swift & Co. v. Wickham, 382 U.S. 111 (1965), the Supreme Court addressed a question involving the jurisdiction of three-judge District Courts. In deciding not to follow its decision of 3 years earlier in Kesler v. Dept. of Public Safety, 369 U.S. 153 (1962), the Court said:

candor compels us to say that we find the application of the Kesler rule as elusive as did the District Court, and that we would fall short in our responsibilities if we did not accept this opportunity to take a fresh look at the problem. We believe that considerations of stare decisis should not deter us from this course. Unless inexorably commanded by statute, a procedural principle of this importance should not be kept on the books in the name of stare decisis once it is proved to be unworkable in practice; * * * (382 U.S. at 116.)

Cf. Gonzalez v. Employees Credit Union, 419 U.S. 90, 95 (1974).

While the rule in Rappaport is not ‘unworkable’ in the sense that the Kesler rule was unworkable for the Supreme Court, the opinion in Swift & Co. at least diminishes the importance of stare decisis in matters involving a court's jurisdiction.

Moreover, the Second Circuit has indicated that its affirmances in open court without opinion have no precedential value whatever. In United States v. Joly, 493 F.2d 672 (2d Cir. 1974), the court discussed the precedential value of two of its prior decisions rendered without opinion and said:

Appellant discounts their precedential value entirely, relying on our recently adopted local rule $0.23,² * * *

We believe that appellant is wholly correct on this point. Although the rule refers to ‘statements' rather than decisions, its clear intent—contrary to the interpretation urged upon us by the Government—is that the decisions themselves shall also have no effect as stare decisis. * * * (493 F.2d at 675—676.)

Because the affirmance of Rappaport by the Second Circuit does not have any precedential value either in this Court or in the Second Circuit, we do not feel bound to follow it under the rule of Golsen v. Commissioner, supra.

We choose then to follow our decision in Sylvan v. Commissioner and admit evidence of the date of mailing of the petition. We are mindful, however, that the date of mailing is only circumstantial evidence of the date of the postmark which should have been stamped on the envelope containing the petition. And it is the date of the postmark which governs the applicability of section 7502. Thompson v. Commissioner, 66 T.C. 737, 741 (1976); Estate of Moffat v. Commissioner, 46 T.C. 499 (1966); Molosh v. Commissioner, 45 T.C. 320 (1965); Madison v. Commissioner, 28 T.C. 1301 (1957).³

At the hearing on this motion a law clerk for petitioners' attorneys testified that he deposited the envelope containing the petition in a mailbox at approximately 8:10 p.m. on Wednesday, April 7, 1976. Respondent's witness, a postal employee, testified that petitioners' envelope, if mailed when indicated, would have been collected the following day. We take this to mean that the envelope would have received a postmark of April 8, 1976, the 90th day following the mailing of the notice of deficiency, had the postal authorities properly stamped the envelope with a postmark.⁴

Respondent's witness also testified that mail picked up before 5 p.m. in New York City would ordinarily arrive in Washington, D.C., in time for delivery the next day. He concluded that if petitioners' letter had been mailed at 8:10 p.m. on Wednesday, April 7, it would ordinarily have arrived at the Court on Friday, April 9.

The ordinary amount of time that mail takes in going from New York City to Washington, D.C., is probative evidence of the time the document was mailed. It is not, however, conclusive. See sec. 301.7502—1(c)(iii)(a), Proced. & Admin. Regs., relating to postmarks made by the United States Post Office. ⁵ Further, mail arriving in Washington, D.C., on a Saturday or Sunday is not delivered to the Court until the following Monday. See Mason v. Commissioner, 68 T.C. 354 (1977); Leventis v. Commissioner, 49 T.C. 353, 355 (1968).

Because of our opinion in Sylvan, decisions in this area necessitate evaluating credibility and weighing evidence. Based on the evidence presented at the hearing on this motion and the entire record in this case, we believe that the petition herein was timely mailed on Wednesday, April 7, 1976, and would have been timely postmarked (no later than Thursday, April 8, 1976) but for an oversight on the part of postal employees.

Respondent relies on Wood v. Commissioner, 41 T.C. 593 (1964), affd. 338 F.2d 602 (9th Cir. 1964), for the proposition that showing the date of mailing is insufficient to show timely filing. In that case the taxpayer mailed the petition by certified mail on the 89th day following the filing of the notice of deficiency ‘or soon thereafter.’ The petition was received by the Court on the 94th day. In finding the petition untimely, we said:

We are not holding that under no circumstances can the taxpayer come within section 7502(c)(2) without producing a timely and properly postmarked sender's receipt for certified mail, but we think the evidence in support of compliance must be more convincing than it is in this case.

We do not doubt that this petition was placed in the United States mail on Wednesday, June 26 or soon thereafter. It was delivered to the Tax Court in Washington, D.C., on Monday, July 1 and would...