Wood v. Comm'r of Internal Revenue, Docket No. 3030-63.

• Decision Date: 29 January 1964
• Docket Number: Docket No. 3030-63.
• Parties: C. LOUIS WOOD AND HALLIE D. WOOD, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

41 T.C. 593

C. LOUIS WOOD AND HALLIE D. WOOD, PETITIONERS,

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 3030-63.

Tax Court of the United States.

Filed January 29, 1964.

Jack D. Swaner, for the petitioners.

Roger A. Pott, for the respondent

Petition was received and filed in the Tax Court on the 94th day after the notice of deficiency was mailed. The covering envelope was not postmarked but an undated certified mail sticker was attached. Petitioners were unable to produce a sender's receipt for certified mail postmarked before the 90th day, claiming it had been lost. Held: Petitioners failed to prove that they obtained a sender's receipt properly postmarked on or before the 90th day; consequently, the actual filing date controls. The petition was not filed on time and the Tax Court has no jurisdiction. Motion to dismiss granted. Sec. 7502(c)(2), I.R.C. 1954; sec. 301.7502-1, Proced. and Admin. Regs.

DRENNEN, Judge:

Involved here is respondent's motion to dismiss this case for lack of jurisdiction because of the failure of petitioners to file a petition within the period prescribed by the applicable provisions of the Internal Revenue Code of 1954. Petitioners opposed the motion and a hearing on the motion was held at San Francisco, Calif., on November 7, 1963, at which time petitioners offered evidence in support of their position.¹ At the conclusion of the hearing respondent's motion was taken under advisement. Upon consideration of the law and the evidence presented we have concluded that respondent's motion must be granted for the reasons stated herein.

FINDINGS OF FACT

Petitioners C. Louis Wood and Hallie D. Wood were husband and wife living in Fort Bragg, Calif. They filed their joint income tax returns for the years 1959 and 1960 with the district director of internal revenue for the San Francisco district of California.

Respondent determined a deficiency in petitioners' income tax for the years 1959 and 1960. A notice of such deficiencies was mailed to petitioners by certified mail on March 29, 1963. The 90-day period within which a timely petition for redetermination could be filed in the Tax Court expired June 27, 1963, which date was not a Saturday, Sunday, or legal holiday in the District of Columbia.

The petition herein was filed with the Tax Court on July 1, 1963, the date on which it was received by the Court, which date is 94 days after the mailing of the notice of deficiency.

The cover or envelope in which the petition was received was properly addressed to the Tax Court of the United States, with the sender's name and address typed in the upper left-hand corner. It bore two United States postage stamps which were canceled with a stamp containing the words ‘Fort Bragg, Calif.’ No postmark stamp bearing a date appeared anywhere on the cover nor did any date otherwise appear on the cover. A certified mail sticker No. 151333 was attached to the cover. It had no date on it.

The petition was signed by both petitioners and acknowledged by them before a notary public for Mendocino County, Calif., sometime after 4 p.m. on June 26, 1963. The petition, contained in the cover above described, was placed in the United States mail sometime thereafter.

Petitioners were unable to produce a certified mail sender's receipt for the above parcel at the hearing on this motion.

OPINION

Section 6213(a), I.R.C. 1954, provides that within 90 days after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day), the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency. This provision has long been held to be jurisdictional and the Tax Court has no jurisdiction unless the petition is timely filed. Nathaniel A. Denman, 35 T.C. 1140 (1961); Bloch v. Commissioner, 254 F.2d 277 (C.A. 9, 1958). Prior to 1954 this generally meant actually filing in the Tax Court. The petition here was not actually filed in the Tax Court within the prescribed time nor is there any evidence that it was placed in the mail in time to reach the Tax Court, in the ordinary course of the mails, within the prescribed time. Thus, petitioners have not shown compliance with the general rule.

In 1954 Congress enacted section 7502 of the 1954 Code to alleviate some of the hardships resulting from a strict application of the above rule. Bloch v. Commissioner, supra.

Section 7502(a) of the Code provides that if a document required to be filed within a prescribed time by the internal revenue laws is delivered by United States mail to the proper office after such date, the date of the United States postmark stamped on the cover in which the document is mailed shall be deemed to be the date of delivery, but only if the postmark date falls within the prescribed period and the document was deposited in the mail in the United States within the prescribed time in an appropriate cover, postage prepaid, and properly addressed. The cover here involved bore no postmark date so the provisions of section 7502(a) will not help petitioners.

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), which provides that if such document is sent by United States registered mail, such registration shall be prima facie evidence that it was delivered to the office to which addressed and the date of registration shall be deemed the postmark date. The document here involved was not sent by registered mail so petitioners are not aided by this section.

After the advent of certified mail, which is less expensive than registered mail, Congress enacted section 7502(c)(2) of the Code, as a part of the Technical Amendments Act of 1958 (sec. 89(a)). This section simply authorized the Secretary or his delegate to provide by regulations the extent to which the provisions of section 7502(c)(1) with respect to prima facie evidence of delivery and the postmark date shall apply to certified mail. The committee report dealing with this section of the Act (H. Rept. No. 775, 85th Cong., 1st Sess., p. 47 (1957), 1958-3 C.B. 857) indicates that the Treasury Department had advised the committee that the authority granted it by this provision would be exercised only if the Post Office Department prescribed regulations requiring that the postal employee who postmarks a sender's receipt for certified mail actually mails the letter or other document.

Section 301.7502-1, Proced. and Admin. Regs., as amended with respect to certified mail in 1960 (T.D. 6444, 1960-1 C.B. 673), provides that a sender who relies on the postmark date assumes the risk that the postmark will bear a date on or before the last date for filing the document, but in paragraph (c)(2) thereof provides further that 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 (and hence the filing date). It is upon this latter provision that petitioners rely.

Petitioners did not produce the sender's certified mail receipt properly and timely postmarked as required by the regulation, but claimed that it was lost. In support of their position, however, they offered the testimony of Vivian Watkins, sister and partner of the individual who prepared the petition, and Hallie D. Wood, one of the petitioners herein, to prove by oral evidence that the requirements of the regulation had been complied with. Summarized, their...