Burke v. Comm'r

T.C. Summary Opinion 2007-200
UNITED STATES TAX COURT
JOHN S. BURKE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 14584-07S. Filed November 26, 2007.
John S. Burke, pro se.
Carolyn Schenck, for respondent.
ARMEN, Special Trial Judge: This case was heard pursuant to
the provisions of section 7463 of the Internal Revenue Code in
effect when the petition was filed.1 Pursuant to section
7463(b), the decision to be entered is not reviewable by any
1
Unless otherwise indicated, all subsequent 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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other court, and this opinion shall not be treated as precedent
for any other case.
This matter is before the Court on respondent’s Motion To
Dismiss For Lack Of Jurisdiction, filed August 17, 2007.
Respondent moves to dismiss this case on the ground that the
petition was not filed within the time prescribed by section
6213(a) or 7502. For reasons discussed hereinafter, we shall
deny respondent’s motion.
Background
At the time that the petition was filed, John S. Burke
(petitioner) resided in southern California.
On March 22, 2007, respondent’s Appeals Office at the
Austin, Texas Service Center sent petitioner a notice of
deficiency. The notice of deficiency, which was sent to
petitioner by certified mail addressed to him at his last known
address, determined a deficiency in income tax for the taxable
(calendar) year 2005 of $13,690 and an accuracy-related penalty
under section 6662(a) of $1,199.60. Petitioner received the
notice of deficiency in late March or early April 2007.
The first page of the notice of deficiency included the
following statement: “If you want to contest this determination
in court before making any payment, you have 90 days from the
date of this letter * * * to file a petition with the United
States Tax Court for a redetermination of the deficiency.”
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The first page of the notice of deficiency also included the
following statement: “Last Day to File a Petition with the
United States Tax Court: June 20, 2007”.
On June 26, 2007, petitioner filed a petition with this
Court seeking a redetermination of the deficiency and penalty
determined by respondent in the notice of deficiency. The
petition, which is dated June 19, 2007, arrived at the Court by
priority first-class mail in an envelope bearing a U.S. Postal
Service postmark date of June 21, 2007. The June 21 date was
also the date that petitioner actually deposited the envelope
into the mail at the post office in Venice Beach, California.
As indicated, respondent filed a Motion To Dismiss For Lack
Of Jurisdiction on August 17, 2007. Petitioner promptly filed an
objection to respondent’s motion. Respondent followed with a
reply to petitioner’s objection. Thereafter, a hearing on
respondent’s motion was held in Los Angeles, California, on
October 30, 2007. Both parties appeared at the hearing and
presented argument in support of their respective positions.
Respondent also filed a Declaration by the case processor in the
Appeals Office at the Austin, Texas, Service Center who had been
responsible for the mailing of the notice of deficiency.
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Discussion
General Principles
This Court’s jurisdiction to redetermine a deficiency in
income tax depends on the issuance of a valid notice of
deficiency and a timely filed petition. Rule 13(a), (c); Monge
v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v.
Commissioner, 90 T.C. 142, 147 (1988). Section 6212(a) expressly
authorizes respondent, 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 respondent
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, has 90 days, or 150
days if the notice is addressed to a person outside the United
States, to file a petition with this Court for a redetermination
of the contested deficiency. Sec. 6213(a). By virtue of section
7502, a petition that is timely mailed is deemed to be timely
filed.
The Parties’ Positions
It is clear in the present case that respondent mailed the
notice of deficiency to petitioner on March 22, 2007. See
Magazine v. Commissioner, 89 T.C. 321, 327 n.8 (1987) (holding
that Postal Service Form 3877 represents direct evidence of the
date of mailing of the notice of deficiency); see also Clough v.
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Commissioner, 119 T.C. 183, 187-188 (2002) (overruling various
challenges by a taxpayer to the introduction into evidence by the
Commissioner of Postal Service Form 3877). Respondent relies on
the fact that the 90th day after the date of mailing of the
notice of deficiency was June 20, 2007, a Wednesday. In
respondent’s view, because the petition was mailed to the Court
on June 21, 2007, the petition was not timely filed, and this
case should therefore be dismissed for lack of jurisdiction.
Petitioner does not seriously challenge the mailing date of
the notice of deficiency. Rather, petitioner contends that the
notice of deficiency is dated March 24, 2007, and not March 22,
2007, and he relies on the statement in the notice that he had
“90 days from the date of this letter * * * to file a petition
with the United States Tax Court for a redetermination of the
deficiency.” Petitioner correctly states that the 90th day after
March 24, 2007, was Friday, June 22, 2007. In petitioner’s view,
because the petition was mailed to the Court on June 21, 2007,
and further because the envelope containing the petition was
postmarked with that same date, the petition was timely filed and
respondent’s motion should therefore be denied.
Respondent vigorously takes issue with petitioner’s
contention. First, respondent rejects petitioner’s premise that
the notice of deficiency is dated March 24, 2007. Second, even
if the notice is so dated, respondent relies on the fact that the
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notice expressly advised petitioner that “Last Day to File a
Petition with the United States Tax Court: June 20, 2007”.
We begin our analysis with respondent’s second argument.
Section 3463 of the 1998 Act
Section 3463(a) of the Internal Revenue Service
Restructuring and Reform Act of 1998, Pub. L. 105-206, 112 Stat.
767, which was enacted on July 22, 1998, requires:
The Secretary of the Treasury or the Secretary’s delegate
shall include on each notice of deficiency under section
6212 of the Internal Revenue Code of 1986 the date
determined by such Secretary (or delegate) as the last day
on which the taxpayer may file a petition with the Tax
Court.
Although section 3463(a) of the 1998 Act has not been
incorporated into the Internal Revenue Code, it nevertheless has
the force of law because it is part of the Statutes at Large.
Smith v. Commissioner, 114 T.C. 489, 491 (2000), affd. 275 F.3d
912 (10th Cir. 2001).
Section 3463 of the 1998 Act amended section 6213(a) by
adding at the end thereof the following sentence, effective for
notices mailed after December 31, 1998: “Any petition filed with
the Tax Court on or before the last date specified for filing
such petition by the Secretary in the notice of deficiency shall
be treated as timely filed.”
The legislative history of section 3463 of the 1998 Act
makes clear that the Congress wished to ensure that (1) taxpayers
received assistance from the Commissioner in determining the
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period within which they were obliged to file a petition for
redetermination with the Tax Court and that (2) those taxpayers
could rely on the computation of that period by the Commissioner.
S. Rept. 105-174, at 90 (1998), 1998-3 C.B. 537, 626; see H.
Rept. 105-364 (Part 1), at 71 (1997), 1998-3 C.B. 373, 443;
see also Rochelle v. Commissioner, 116 T.C. 356, 362-363 (2001),
affd. per curiam 293 F.3d 740 (5th Cir. 2002).
Thus, if the Commissioner makes a mistake in computing the
filing period by overstating it, the last sentence of section
6213(a) serves to enlarge the period of time within which a
taxpayer would otherwise have to file a petition for
redetermination with this Court. On the other hand, the
Commissioner’s mistake in computing the filing period by
understating it does not serve to shorten the period of time
prescribed by law within which a petition must be filed. Cf.
Bush v. Commissioner, T.C. Memo. 2002-33 (notice of deficiency
specifying July 4 as the last date to file a petition ignored the
provisions of section 7503 regarding time for performance of acts
where the last day falls on Saturday, Sunday, or legal holiday),
affd. 51 Fed. Appx. 422 (4th Cir. 2002).
In short, the 90th day after March 24, 2007, was Friday,
June 22, 2007, and by no administrative fiat in the notice of
deficiency may respondent make that day any earlier.
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Date of the Notice of Deficiency
We turn now to respondent’s first argument, i.e., that the
notice of deficiency is dated March 22, 2007, and not March 24,
2007, as petitioner contends.
At the hearing on respondent’s motion, petitioner produced
the original notice of deficiency, and the Court examined it.2
The date of the notice is reasonably legible and it certainly
looks like March 24, 2007. However, in using a magnifying glass
and a high-powered halogen light to examine the date, it appears
that respondent originally stamped the notice March 21, 2007, and
then restamped it March 22, 2007. This interpretation is
consistent with the Declaration of respondent’s employee who was
responsible for the mailing of the notice.
The stamp-over of the date on the notice of deficiency had
no effect on the legibility of either the month or the year or
the first digit of the day. However, the stamp-over of the “1”
and the “2” of the second digit of the day ended up producing
what clearly looks like a “4” to the unaided eye.
In Loyd v. Commissioner, T.C. Memo. 1984-172, and Jones v.
Commissioner, T.C. Memo. 1984-171, the Court held that the
taxpayers were entitled to rely on the date stamped on the notice
of deficiency as to its mailing date, even though the notice was
2
Petitioner did not retain the envelope containing the
notice of deficiency, and there is nothing in the record to
indicate whether the envelope in which the notice was mailed bore
a postmark.
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actually mailed on an earlier date. In other words, the date
appearing on the notice of deficiency was deemed to be the date
of mailing for purposes of section 6213(a). See Lundy v.
Commissioner, T.C. Memo. 1997-14 (discussing Loyd and Jones in
the context of the Court’s jurisprudence regarding its
jurisdiction).
Respondent seeks to distinguish Loyd v. Commissioner, supra,
and Jones v. Commissioner, supra, by relying on an earlier case,
Meader v. Commissioner, T.C. Memo. 1982-288, wherein the Court
granted the Commissioner’s jurisdictional motion and dismissed
the case on the ground that the petition had not been filed
within 90 days of the date of mailing of the notice of
deficiency. Respondent argues that the date appearing on the
notices of deficiency in Jones and Loyd was “clearly legible”,
whereas the date appearing on the notice in Meader was “smudged”,
so that the taxpayer was not entitled to rely on it.
In Meader v. Commissioner, supra, the notice of deficiency
was mailed on April 6, 1981. The petition was not timely filed
as measured by that date. However, the petition was filed within
90 days of April 8, 1981, and the taxpayers argued that the date
stamped at the top of the notice of deficiency was April 8, 1981,
rather than April 6, 1981. The Court acknowledged that the date
stamped on the notice was “somewhat smudged, and a cursory
examination of it might create the mistaken belief that the date
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is April 8. However, closer scrutiny clearly reveals that the
chronologically earlier date is the correct one.”
In the instant case, we do not agree with respondent that
the date stamped on the notice of deficiency presents a “patent
ambiguity” such that petitioner was not entitled to rely on his
reading of that date. Rather, we think that petitioner’s reading
was eminently reasonable. Indeed, as previously stated, the date
stamped on the notice appears to the unaided eye to be March 24,
2007, and it is only upon close examination, using a magnifying
glass and a powerful beam of light, that ambiguity arises. In
short, the date stamped on the notice of deficiency does not
invite “closer scrutiny”, thereby making respondent’s reliance on
Meader v. Commissioner, supra, inapposite.
Conclusion
In conclusion, the date of March 24, 2007, shall be treated
as the date of mailing of the notice of deficiency for purposes
of section 6213(a). See Loyd v. Commissioner, supra; Jones v.
Commissioner, supra. Because the petition was mailed to the
Court within 90 days of that date, the petition was timely filed,
see sec. 7502(a), and this case may go forward. Accordingly, we
shall issue an order (1) denying respondent’s Motion To Dismiss
For Lack Of Jurisdiction, filed August 17, 2007, and (2)
directing respondent to file an answer to the petition.
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To give effect to the foregoing,
An appropriate order
will be issued.