Sylvan v. Comm'r of Internal Revenue

• Citation: 65 T.C. 548
• Decision Date: 16 December 1975
• Docket Number: Docket No. 3542-74.
• Parties: FRED SYLVAN, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: United States Tax Court

65 T.C. 548

FRED SYLVAN, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 3542-74.

United States Tax Court

Filed December 16, 1975.

The period for filing a petition expired on May 21, 1974. Taxpayer's petition was received by the Court via the mails at 8:55 a.m. on May 22, 1974. The postal service inadvertently failed to postmark the covering envelope. Held: Respondent's motion to dismiss for lack of jurisdiction denied. Sec. 7502, in providing that a petition forwarded in a timely postmarked cover is timely filed, had in mind a readable postmark. Evidence as to time of mailing is relevant where the postmark is inadvertently omitted in its entirety as well as when it is partially omitted. Jacob L. Rappaport, 55 T.C. 709 (1971), affd. in open court without opinion 456 F.2d 1335 (2d Cir. 1972), overruled. Ray K. Babb, Jr., for the petitioner.

OPINION

WILBUR, Judge:

This matter is before us upon respondent's motion to dismiss for lack of jurisdiction. Respondent determined a deficiency in income tax due from the petitioner for the taxable year 1971 in the amount of $22,755.10 and, under section 6653(a),¹ an addition to the tax in the amount of $1,137.75. Respondent mailed a statutory notice of deficiency to petitioner by certified mail on February 20, 1974.

The period provided by section 6213(a)² for filing a petition with this Court expired on Tuesday, May 21, 1974, which was not a legal holiday in the District of Columbia.

The petition was mailed in Oklahoma City on May 20, 1974, by petitioner's attorney in an envelope properly addressed with the proper postage affixed. Petitioner's attorney received a certificate of mailing bearing an Oklahoma City, May 20, 1974, postmark affixed by postal meter, and another postmark affixed by the postal service also dated May 20, 1974. The certificate of mailing states that the postal service received one piece of ordinary mail from petitioner's attorney addressed to the United States Tax Court, Washington, D. C.

The envelope containing the petition was received in the Tax Court mailroom May 22, 1974. The stamps were not canceled and the envelope was not postmarked. The envelope was then opened and the petition was stamped as follows:

Tax Court

Mail Room

1974 May 22 AM 8:55

In accordance with procedures that have been employed by this Court prior and subsequent to 1974, only documents delivered through the mail are received in the Court's mailroom and stamped with this imprint.

Shortly thereafter, employees in the mailroom delivered the petition to the petition section and the following notation was imprinted by stamp on the petition:

Filed

1974 May 22 9:47

United States Tax Court

Respondent moved to dismiss the petition for lack of jurisdiction on the ground that the petition was not received or postmarked on or before the 90th day and therefore was not timely filed.

A petition for redetermination of a deficiency must be filed with this Court within 90 days after the notice of deficiency is mailed to the taxpayer. Sec. 6213. Failure to file within the prescribed period requires that the petition be dismissed for lack of jurisdiction. Angelo Vitale, 59 T.C. 246 (1972); Estate of Frank Everest Moffat, 46 T.C. 499 (1966).

Filing is completed when the petition is received by the Court, unless the exception provided by section 7502 applies.³ Section 7502 provides that a petition received after the 90th day but mailed on or before the 90th day is deemed filed on the date of the postmark, if the postmark is timely. ⁴

Respondent contends that since the envelope in which the petition was mailed bears no postmark, the timely mailing provisions of section 7502 are inapplicable, citing Jacob L. Rappaport, 55 T.C. 709 (1971), affd. per curiam in open court without opinion 456 F.2d 1335 (2d Cir. 1972). In Rappaport, we found that the petition there considered was timely mailed, but nevertheless concluded that evidence of when a postmark would have been made was irrelevant, since the requirement of a postmark (whether legible or not) ‘is essential to obtaining the benefits of section 7502(a).’

We have no doubt whatsoever that the petition herein was timely mailed and would have been timely postmarked but for an error on the part of the post office. We know for a fact the petition was mailed, because it arrived in our mail room via the mails. Since it was received early in the morning on the 91st day, we also know that the petition was mailed in time to have received a timely postmark in the normal course of business. It is impossible for an item to arrive via mail early in the morning on the same day it is mailed, as we noted under very similar circumstances in Alexander Molosh, 45 T.C. 320 (1965), sustaining this Court's jurisdiction in the case of an illegible postmark. The only real distinction between Molosh and the instant case is that in Molosh the postmark was partially omitted, while in the instant case the postmark was entirely omitted.

In both cases we know that the item was mailed, in neither case is there a postmark indicating when it was mailed;⁵ and in both cases the time a postmark would have been made must be determined from evidence other than a postmark. Nevertheless, as Rappaport states: ‘If the requirement of a postmark is the sine qua non of timely filing, such evidence (as to when the envelope would have been postmarked) would be irrelevant.’ ( 55 T.C. at 710). We believe this is an appropriate occasion to reexamine this basic premise of Rappaport.

Prior to the enactment of section 7502, timely filing depended on the vicissitudes of the mail, with the time of delivery varying as to the geographical area of mailing, the seasonal demands imposed on the post office, and the postal performance in the individual case presented. In order to alleviate hardships resulting from delays in particular cases, a presumption of timely delivery was often employed.⁶

Congress enacted section 7502 to eliminate the inequities resulting from variations in postal performance when a document is timely mailed. Since the time of mailing was being substituted for the time of delivery, Congress logically made the date of the postmark determinative of the time of mailing. This precludes a taxpayer from introducing evidence of timely mailing conflicting with an untimely postmark, save in the sole case of registered mail where the date of registration is ‘deemed the postmark date.'⁷ Sec. 7502(c)(1)(B) See Boccuto v. Commissioner, 277, F.2d 549 (3rd Cir. 1960); Nathaniel A. Denman, 35 T.C. 1140 (1961).

Congress, in making the postmark irrebuttable evidence of timely mailing, focused on the normal situation involving a readable postmark, indicating the date when the document was mailed.⁸ There is nothing at all in the statute or legislative history indicating what Congress intended where the postmark is illegible; where there is no postmark because the petition was inserted in a new postal cover when the original cover was damaged; or where no postmark is affixed due to oversight or malfunction of a machine. Congress apparently did not consider these cases, and our task in these circumstances is to ask what Congress ‘would have intended on a point not presented to its mind, if the point had been present.'⁹

In answering this question, we have held that evidence is admissible to ascertain the date of mailing when the postmark is illegible (Alexander Molosh, 45 T.C. 320 (1965); see also Skolski v. Commissioner, 351 F.2d 485 (3d Cir. 1965)), and when the original cover is destroyed and the petition is rewrapped in an envelope with no postmark (Perry Segura & Associates, Inc., T.C. Memo. 1975-80). In both of these instances the time of mailing was not ‘indicated by the postmark’ as contemplated by Congress.¹⁰ For the purpose Congress had in mind in referring to a postmark, a postmark was simply not available.

For purposes of interpreting the specific statute before us, these cases cannot fairly be distinguished from cases where the postal service inadvertently neglects to postmark a properly mailed item. It certainly makes no sense to continue to distinguish between part of a postmark consisting of an empty or obliterated circle (or part of a circle), and no postmark at all. In all of these cases, there simply is not a postmark that serves the purpose of the statute as contemplated by Congress.

In the case of illegible postmarks and damaged envelopes, we have properly concluded evidence as to timely mailing is admissible. We think the answer is the same where a postmark is entirely (rather than partially) omitted through oversight. To hold otherwise would make the important right to a prepayment hearing depend entirely on the form by which a postal omission is manifested. ¹¹ And to hold that we hear a case when a wholly omitted postmark is attributable to mishandling— an error of commission— but dismiss the same case when the error is one of omission occurring at the time the postmark should have been affixed, is to make important rights depend on both the form and the time of the error. See Perry Segura & Associates, Inc., supra (involving a petition rewrapped by the postal office and also discussing the handling of instances involving dislodged stamps to which a postmark may have been affixed). As the Third Circuit said in permitting evidence as to timely mailing in the case of an illegible postmark: ‘To hold otherwise would be to narrow the scope of section 7502(a) to a fortuitous application wholly dependent upon the care with which postal employees affixed postmarks and thus unwarrantedly to defeat in part its remedial purposes.’ ( Skolski v. Commissioner, 351 F.2d at 488.)

In enacting section 7502, Congress intended to eliminate the random distribution of hardships occasioned by variations in postal performance. Distinctions based on the formal manifestation of postal omissions reintroduced the random distribution of hardships occasioned by variations in...