Selter v. Commissioner , 80 T.C.M. 491 ( 2000 )

T.C. Memo. 2000-316
UNITED STATES TAX COURT
MICHAEL H. AND BARBARA SELTER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 2688-00. Filed October 6, 2000.
Michael H. Selter, pro se.
Alan R. Peregoy, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This matter is before the Court
on respondent's Motion to Dismiss for Lack of Jurisdiction, filed
May 1, 2000. As discussed in detail below, we shall grant
respondent's motion to dismiss.
Background
On December 2, 1999, respondent mailed a notice of deficiency
to Michael H. and Barbara Selter (the Selters or petitioners)
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determining a deficiency of $31,970 in their Federal income tax
for 1992. Respondent mailed the notice to petitioners at their
last known address; namely, 6806 Selkirk Drive, Bethesda,
Maryland 20817. Petitioner Michael H. Selter is a partner in a
law firm located in Washington, D.C.
On Wednesday, March 8, 2000, at approximately 8 a.m., the
Tax Court mailroom received an envelope containing the Selters'
petition contesting the notice of deficiency described above.
The envelope bears a preprinted address label listing the name
and address of Mr. Selter's law firm as the sender, and the
envelope identifies the Court as the addressee.1 Notably, the
envelope does not bear any postage, nor does it bear any type of
postmark. There is no adhesive or sticky residue in the upper
right-hand corner of the envelope, suggesting that postage may
never have been affixed thereto. Further, the envelope is not
torn, damaged, or unusually soiled, nor does it appear to have
been abused, and there are no marks or notations on the envelope
indicating that it was misdirected or otherwise delayed in
transit. Affixed to the envelope are a certified mail receipt
1
Although the Court's ZIP Code was erroneously listed on
the address label as 20817 (the ZIP code for the Selters’ home
address in Bethesda, Maryland) rather than the Court’s correct
ZIP Code of 20217, a representative of the U.S. Postal Service
testified that such an error would not have delayed the delivery
of the petition to the Court. See also Price v. Commissioner, 76
T.C. 389 (1981).
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(sticker No. Z 401 327 528) and the anchors for the so-called
certified mail green card used to confirm receipt. An employee
of the Tax Court signed the green card on March 8, 2000, and it
was returned to petitioners in due course by the Postal Service.
The petition, signed by both petitioners, is dated February 24,
2000.
Respondent filed a Motion to Dismiss for Lack of
Jurisdiction on the ground that the petition was not filed within
the 90-day period prescribed in section 6213(a).2 Petitioners
filed an opposition to respondent's motion, asserting that the
petition was timely mailed to the Court on February 28, 2000.
Petitioners' opposition includes a declaration and a supplemental
declaration signed by Tyree Hunt (Ms. Hunt), a temporary employee
of Mr. Selter's law firm. In the declaration, Ms. Hunt states
that on February 28, 2000, she delivered the envelope bearing the
petition to the Postal Service. In the supplemental declaration,
Ms. Hunt states that she did not deliver the envelope bearing the
petition to the Postal Service, but rather left the envelope with
other office mail for in-house pickup by a postal carrier.
This matter was called for hearing at the Court's motions
session in Washington, D.C. Counsel for respondent appeared at
2
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
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the hearing and offered argument in support of respondent's
motion to dismiss. Also, respondent called as a witness Waverly
Vaughan (Ms. Vaughan), Supervisor of Operations at the U.S.
Postal Service located on Brentwood Road in Washington, D.C. The
U.S. Postal Service on Brentwood Road is responsible for
delivering mail to the Tax Court.
Ms. Vaughan testified that certified mail item No. Z 401 327
528 was received at the Brentwood Road Postal Service either late in
the evening on March 7, 2000, or very early in the morning on March
8, 2000. Ms. Vaughan also testified that the normal delivery time
for an item mailed from one address in Washington, D.C., to another
address in Washington, D.C., is 1 to 2 days. Ms. Vaughan further
testified that normally an envelope lacking postage would be
returned to the sender or delivered to the addressee for collection
of the postage due. However, Ms. Vaughan acknowledged that the
Postal Service does, on occasion, mistakenly deliver mail lacking
postage.
Mr. Selter appeared at the motions hearing and offered argument
in opposition to respondent's motion. When the Court informed Mr.
Selter that the Court would not rely on Ms. Hunt's conflicting
declarations in deciding the case, Mr. Selter requested a
continuance to allow him to call Ms. Hunt as a witness.
This matter was called for a second hearing at the Court's
motions session in Washington, D.C. Both counsel for respondent and
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Mr. Selter appeared at the hearing and offered argument in respect
of the pending motion. Mr. Selter informed the Court that he had
contacted Ms. Hunt and that she had agreed to appear at the hearing.
However, Mr. Selter failed to issue a subpoena to Ms. Hunt, and she
did not appear to testify. However, the office manager of Mr.
Selter’s firm did appear and testify. Also, during the hearing, Mr.
Selter offered as an exhibit an article titled "Postal Service Gives
'Check in the Mail' A Whole New Twist", published in the New York
Times on July 28, 2000. Respondent objected to the admission of the
article on the ground that it was hearsay. The Court deferred
ruling on the admissibility of the article.
Discussion
The Court's jurisdiction to redetermine a deficiency depends
upon the issuance of a valid notice of deficiency and a timely filed
petition. Rule 13(a), (c); see Monge v. Commissioner, 93 T.C. 22,
27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).
Section 6212(a) expressly authorizes the Commissioner, after
determining a deficiency, to send a notice of deficiency to the
taxpayer by certified or registered mail. It is sufficient for
jurisdictional purposes if the Commissioner mails the notice of
deficiency to the taxpayer at the taxpayer's "last known address".
Sec. 6212(b); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). The
taxpayer, in turn, generally has 90 days from the date the notice of
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deficiency is mailed to file a petition in this Court for a
redetermination of the deficiency. See sec. 6213(a).
There is no dispute that respondent mailed the notice of
deficiency to petitioners at their last known address on December 2,
1999. Accordingly, the 90-day period for filing a timely petition
with the Court expired on Wednesday, March 1, 2000. See id. The
petition in this case was not filed until Wednesday, March 8, 2000.
Although the petition was not timely filed, petitioners
maintain that the petition was timely mailed to the Court on
February 28, 2000, 2 days before the expiration of the 90-day period
and 10 days before the date the petition was delivered to the Court.
In particular, petitioners offered evidence that on February 28,
2000, petitioner Michael H. Selter directed Ms. Hunt to mail the
petition to the Court. Petitioners offered circumstantial evidence
that Ms. Hunt may have placed the petition in an envelope bearing
postage from the law firm's private postage meter and may have
placed the envelope with the firm's outgoing mail for pickup by a
postal carrier in the lobby of the office building where the firm is
located.
Section 7502 provides that, in certain circumstances, a timely
mailed petition will be treated as though it were timely filed.
Where the postmark in question is made by a private postage meter,
the provisions implementing the "timely mailing/timely filing" rule
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are contained in section 301.7502-1(c)(1)(iii)(b), Proced. & Admin.
Regs., which provides as follows:
(b) If the postmark on the envelope or wrapper is
made other than by the United States Post Office, (1) the
postmark so made must bear a date on or before the last
date, or the last day of the period, prescribed for filing
the document, and (2) the document must be received by the
agency, officer, or office with which it is required to be
filed not later than the time when a document contained in
an envelope or other appropriate wrapper which is properly
addressed and mailed and sent by the same class of mail
would ordinarily be received if it were postmarked at the
same point of origin by the United States Post Office on
the last date, or the last day of the period, prescribed
for filing the document. However, in case the document is
received after the time when a document so mailed and so
postmarked by the United States Post Office would
ordinarily be received, such document will be treated as
having been received at the time when a document so mailed
and so postmarked would ordinarily be received, if the
person who is required to file the document establishes
(i) that it was actually deposited in the mail before the
last collection of the mail from the place of deposit
which was postmarked (except for the metered mail) by the
United States Post Office on or before the last date, or
the last day of the period, prescribed for filing the
document, (ii) that the delay in receiving the document
was due to a delay in the transmission of the mail, and
(iii) the cause of such delay. If the envelope has a
postmark made by the United States Post Office in addition
to the postmark not so made, the postmark which was not
made by the United States Post Office shall be
disregarded, and whether the envelope was mailed in
accordance with this subdivision shall be determined
solely by applying the rule of (a) of this subdivision.
[Emphasis added.]
The validity of this regulation has been upheld. See Lindemood v.
Commissioner, 566 F.2d 646, 649 (9th Cir. 1977), affg. T.C. Memo.
1975-195; Fishman v. Commissioner, 420 F.2d 491, 492 (2d Cir. 1970),
affg. 51 T.C. 869 (1969).
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Based upon the record presented, we conclude that petitioners
cannot avail themselves of the timely mailing/timely filing rule set
forth in section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs.
In the first instance, the controlling regulation contemplates that
the timely mailing/timely filing rule may be invoked where the
petition is delivered to the Court in an envelope or wrapper that
contains a timely private postage meter postmark. The envelope
bearing the petition arrived at the Court without any postmark
indicating the date that it was mailed to the Court. Although we
will allow extrinsic evidence to prove the date of mailing where an
envelope lacks a postmark, see Sylvan v. Commissioner, 65 T.C. 548,
553-555 (1975), there is absolutely no indication that any type of
postage was ever affixed to the envelope. See section 7502(a)(2),
regarding mailing requirements, specifically including the
requirement that postage be prepaid. We are not persuaded by
petitioners' circumstantial evidence that a timely private postage
meter label was properly applied to the envelope.
Even assuming for the sake of argument that petitioners have
proven that the envelope bearing the petition was placed in the mail
with a timely private postage meter postmark of February 28, 2000,
section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs., further
requires that the petition be delivered to the Court within the
ordinary mailing time for that class of mail. We accept Ms.
Vaughan's testimony that the ordinary delivery time for an item
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mailed from one location in Washington, D.C., to another location in
Washington, D.C., is 1 to 2 days. The petition in this case was
delivered to the Court 10 days after it was allegedly mailed and 8
days after the expiration of the 90-day filing period. It follows
that the petition was not delivered to the Court within the ordinary
mailing time.
Where a petition is mailed to the Court in an envelope bearing
a private postage meter postmark, but the petition is not delivered
to the Court within the ordinary mailing time for that class of
mail, a taxpayer seeking to rely on the timely mailing/timely filing
rule must establish that the petition was actually deposited in the
mail before the expiration of the 90-day period, that the delay in
receiving the petition was due to a delay in the transmission of the
mail, and the cause of the delay. Petitioners have not offered
persuasive proof with respect to the date that the petition was
actually placed in the mail. We have nothing but Ms. Hunt's
conflicting declarations regarding her handling of the petition. At
best, we are left to speculate that the envelope bearing the
petition was left in the lobby of Mr. Selter's office building on or
about February 28, 2000, for pickup by a postal carrier. Moreover,
there is no evidence in the record demonstrating that the delay in
the delivery of the petition to the Court was due to a delay in the
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transmission of the mail or the cause of such delay.3 Under the
circumstances, we hold that the petition was not timely filed.
As a final matter, petitioners erroneously contend that the
petition should be deemed to have been timely filed pursuant to the
common-law "mailbox rule". The common-law mailbox rule provides
that proof of a properly mailed document creates a presumption that
the document was delivered and actually received by the addressee.
See Estate of Wood v. Commissioner, 92 T.C. 793, 798-799 (1989),
affd. 909 F.2d 1156 (8th Cir. 1990), and cases cited therein. There
is no question in this case that the petition was delivered to the
Court on March 8, 2000. However, petitioners must establish that
the petition was timely mailed to the Court. Given the lack of
satisfactory proof that the petition was placed in the mail within
the 90-day filing period prescribed in section 6213(a), petitioners'
reliance on the common-law mailbox rule is misplaced.
3
We agree with respondent that the New York Times article
that petitioners offered into evidence in this case contains
hearsay; nevertheless, we admit the article into evidence.
Although the article indicates that the U.S. Postal Service
experienced difficulties delivering certified mail in various
jurisdictions during the period April through July 2000, the
article does not mention Washington, D.C., as a trouble spot, and
we do not consider the article to be persuasive evidence that the
delay in the delivery of the petition in this case was due to a
delay in the transmission of the mail, or the cause of such
delay.
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Consistent with the preceding discussion, we shall grant
respondent's Motion to Dismiss for Lack of Jurisdiction.4
To reflect the foregoing,
An order of dismissal for
lack of jurisdiction will be
entered.
4
Although petitioners cannot pursue their case in this
Court, petitioners are not without a remedy. In short,
petitioners may pay the tax, file a claim for refund with the
Internal Revenue Service, and if the claim is denied, sue for a
refund in the Federal District Court or the Court of Federal
Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).