Wood v. CIR

• Decision Date: 13 November 1964
• Docket Number: No. 19276.,19276.
• Citation: 338 F.2d 602
• Parties: C. Louis WOOD and Hallie D. Wood, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

338 F.2d 602 (1964)

C. Louis WOOD and Hallie D. Wood, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 19276.

United States Court of Appeals Ninth Circuit.

November 13, 1964.

Morris M. Grupp, Jack D. Swaner, San Francisco, Cal., for appellant.

Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Carolyn R. Just, Dept. of Justice, Washington, D. C., for respondent.

Before POPE, KOELSCH and DUNIWAY, Circuit Judges.

POPE, Circuit Judge.

This is a petition to review an order of the Tax Court which dismissed appellant's petition for redetermination of a deficiency determined by the Commissioner of Internal Revenue. The petition was dismissed on the ground that it was not filed within the statutory period following the Commissioner's notice of deficiency.

The facts are that on March 29, 1963, a notice of tax deficiency determined by the Commissioner was mailed to petitioners. Under § 6213 of the Internal Revenue Code petitioners had 90 days thereafter within which to file with the Tax Court a petition for redetermination of the deficiency. (26 U.S.C. § 6213) Under that section if the taxpayer does not file a petition within the prescribed time the deficiency must be assessed and paid upon notice and demand. A petition for such determination was mailed by the petitioners to the Tax Court and was received by it on July 1, 1963. That was 94 days after the mailing of the notice of deficiency. However, under § 7502 of the Revenue Code (26 U.S.C. § 7502) it is provided that where such a petition is mailed to the Tax Court the date of the United States postmark stamp on the cover in which such petition is mailed shall be deemed to be the date of delivery. Compliance with the provisions of that section cannot be established by merely showing that the petition was actually delivered to the post office within the 90 day period. The petitioner must satisfy the specific requirement that the cover in which the petition was mailed bears a United States postmark showing a date of mailing within the period stated. Boccuto v. C.I.R., 3 cir., 277 F.2d 549.

However, the same section as amended in 1958, provides in subdivision "c" (26 U.S.C. 1958 ed. § 7502(c)) that if the petition is sent by registered mail the registration shall be prima facie evidence that the document was delivered to the Tax Court "and the date of registration shall be deemed the postmark date." The same subdivision provides that the Secretary or his delegate is authorized to provide by regulation the extent to which the provisions relating to registered mail with respect to the postmark date shall apply to certified mail. Treasury Regulations adopted pursuant to that authorization (§ 301.7502-1(c) (2)) provide as follows: "If the document is sent by United States registered mail, the date of registration of the document shall be treated as the postmark date. If the document is sent by United States certified mail and the sender's receipt is postmarked by the postal employee to whom such document is presented, the date of the United States postmark on such receipt shall be treated as the postmark date of the document. Accordingly, the risk that the document will not be postmarked on the date that it is deposited in the mail may be overcome by the use of registered mail or certified mail."

A petition in this case was mailed on behalf of the petitioners at Fort Bragg, California, by certified mail. The cover bore two United States postage stamps which were cancelled with a stamp containing the words "Fort Bragg, Calif." There was no postmark stamp bearing a date anywhere on the cover, and no date whatever appeared on that cover. A certified mail sticker bearing No. 151333 was attached to the cover but it had no date on it. The petition itself was signed by both petitioners and verified before a notary public for Mendocino County, California, some time before 4 P.M. on June 26, 1963.

The petitioners were unable to produce a certified mail sender's receipt for the parcel mentioned. They did produce witnesses who testified that on June 26, 1963, (a date within the 90 day period) Mrs. Wood, one of the petitioners, delivered an envelope properly addressed to the Tax Court to a postal clerk in the post office at Fort Bragg, California. She procured stamps from the clerk, affixed them, filled out her receipt for the certified mail and handed it to the postal clerk who then stamped the receipt and returned it to her. She testified that she also asked the clerk to make sure that there was a stamp on the envelope, which was a large one. She testified that the clerk then gave her the receipt which was postmarked and bore a stamp showing the date of mailing; the date was June 26, 1963.

The petition in question had been prepared by a tax consultant named Watkins. His sister, who worked in his office, accompanied Mrs. Wood to the post office and was present when these transactions occurred. Miss Watkins also...