DocketNumber: Docket No. 2431-81
Citation Numbers: 42 T.C.M. 656, 1981 Tax Ct. Memo LEXIS 310, 1981 T.C. Memo. 428
Filed Date: 8/13/1981
Status: Non-Precedential
Modified Date: 11/21/2020
MEMORANDUM OPINION
HALL,
In an
A postmark date stamped on Postal Service Form 3877, Acceptance of Registered, Insured, C.O.D. and Certified Mail, indicates that respondent mailed the statutory notice of deficiency on October 31, 1980. The franked envelop in which the statutory notice was mailed bears no postmark.
Petitioner Kathleen D. Casqueira testified she believed she received the Commissioner's notice of deficiency sometime between November 17 and November 21, 1980. Petitioners mailed their petition by certified mail to the United States Tax Court on February 5, 1981, the 97th day after respondent mailed the notice of deficiency, and it was filed with this Court on February 9, 1981.
Petitioners contend that under the circumstances of this case, they timely filed their petition because (1) the notice of deficiency is not dated, (2) the envelope in which respondent mailed the notice bears no postmark, and (3) petitioners mailed their petition within 90 days of the time they received the notice of deficiency. Alternatively, *312 petitioners assert that, despite the postmark date stamped on Postal Service Form 3877, we should find that respondent did not mail the notice on October 31, 1980, but on some later date, and that their petition was timely filed. Respondent, on the other hand, contends that he has proven that the notice was mailed on October 31, 1980, and thus petitioners did not timely file their petition. We agree with respondent.
Section 6213(a) provides:
Within 90 days * * * after the notice of deficiency authorized in section 6212 is mailed * * * the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency.
Several early cases interpreting predecessor provisions to section 6213(a) have held that the actual date on which respondent mailed the notice controls the period within which a taxpayer must file his petition regardless of the date on the notice or the taxpayer's knowledge of the date of mailing.
The notice of deficiency refers taxpayers to the date appearing at the top of the notice. However, it is settled law that the date appearing on the notice of deficiency is not the date of mailing (although the dates may coincide). [Citations omitted.]
In the initial
In the present case no date can be found on either the notice or the envelope. However, the absence of these dates has no effect on the 90 day period in the present circumstances. Section 6213(a) *314 and the cases construing it are clear that the 90 day period runs from the mailing of the notice. Accordingly, we must determine the date on which respondent mailed the notice of deficiency. Respondent must bear the burden of establishing the date of mailing the notice because (1) this information is peculiarly within his knowledge, and (2) it is respondent's Motion to Dismiss for Lack of Jurisdiction which is being considered.
In
Petitioners received actual notice in ample time to file their petition. Any concern regarding the day on which the statutory period commenced could have been easily resolved had petitioners contacted the "Person to Contact" at the "Contact Telephone Number" listed on their notice of deficiency. 2
Since petitioners filed their petition more than 90 days after respondent mailed the notice of deficiency, respondent's Motion to Dismiss for Lack of Jurisdiction will be granted.