Traxler v. Comm'r of Internal Revenue

• Decision Date: 10 February 1975
• Docket Number: Docket No. 5089-73.
• Citation: 63 T.C. 534
• Parties: DUANE M. TRAXLER AND MARION C. TRAXLER, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

63 T.C. 534

DUANE M. TRAXLER AND MARION C. TRAXLER, PETITIONERS

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 5089-73.

United States Tax Court

Filed February 10, 1975.

Duane M. Traxler and Marion C. Traxler, pro se.

Kenneth B. Wheeler, for the respondent.

Held, a line date stamped on an envelope by the receiving Post Office for postal control purposes is not a postmark. Held, further, since there was no postmark on the envelope sent by certified mail which contained the statutory notice of deficiency to the petitioners herein, the date of mailing of the notice of deficiency, for purposes of sec. 6213(a), is the date on which the Internal Revenue Service deposits the notice of deficiency with the Post Office as evidenced herein by the date of the postmark stamped on the postal receipt for certified mail (Form 3877). Held, further, respondent's motion to dismiss for lack of jurisdiction is granted since the notice of deficiency herein was ‘mailed’ on Mar. 29, 1973, and the petition herein was mailed on June 28, 1973. Duane M. Traxler, 61 T.C. 97 (1973), modified.

SUPPLEMENTAL OPINION

STERRETT, Judge:

In our opinion deciding a procedural issue involved in this case (61 T.C. 97 (1973)), we denied respondent's motion to dismiss the case for lack of jurisdiction since we conduced that the petition herein was timely filed. The particular issue involved therein was the question of when a notice of deficiency was ‘mailed’ for purposes of section 6213(a) where the date of the postmark on the envelope containing the notice differed from both the date on which the Internal Revenue Service physically delivered the notice to the Post Office and the date on the notice itself. We held, in effect, that the date of ‘mailing’ was the date of the postmark on the envelope containing the notice. In cases where there is no postmark, we would then look to the date of the postmark on the postal receipt for the certified mailing (Form 3877) of the notice received by the respondent, which shows the date on which the Internal Revenue Service physically deposited the notice with the Post Office.

The case was then scheduled for a hearing on the merits on December 2, 1974. On that date respondent filed a document entitled ‘Motion for Reconsideration and Revision of Opinion’ with this Court along with an accompanying memorandum of law in support of his motion.

Implicit in the holding in our original opinion in this case, that the petition was timely filed on the 89th day after the notice was mailed, was the assumption that one, or both, of the two stamped dates ‘March 31, 1973’ placed on the envelope containing the notice by the Clearwater, Fla., Post Office was a postmark. Because the holding in our original opinion was based upon the aforementioned assumption which resulted from the incomplete presentation of the facts by the respondent in the original hearing and which, upon the offer of further proof, we now consider erroneous, we conclude and hold...