W. Phillips v. Commissioner of Internal Revenue

Order

KERN, Judge: The original petition in this proceeding was received and filed at the above docket number September 17, 1954, and on October 28, 1954, respondent filed a motion to dismiss for lack of jurisdiction alleging the notice of deficiency was mailed on June 18, 1954 "and the petitioner was not filed until September 17, 1954, which was the 91st day after the mailing of the notice of deficiency." An examination of the file shows that the petition was stamped filed the day it was received; namely, September 17, 1954, but the date of the United States postmark stamped on the envelope in which the petition was received, and to which the petition is stapled in the Court's official*56 file, shows that the petition was mailed September 15, 1954. Under Sec. 7502 of the Internal Revenue Code of 1954, the date of the United States postmark stamped on the cover in which the petition was mailed shall be deemed to be the date of delivery. Respondent's counsel have informally advised the Court that their motion to dismiss may be denied, without hearing, if the Court finds the petition to have been filed within the statutory 90-day period. Accordingly, it is

ORDERED: That September 15, 1954, is deemed to be the date of the delivery of this petition to the Court, and the petition is deemed and held to be filed September 15, 1954, and the respondent's motion to dismiss for lack of jurisdiction is denied, and the case is stricken from the calendar of November 17, 1954.