Estate of Levison v. Commissioner

MEMORANDUM FINDINGS OF FACT AND OPINION

CHABOT, Judge: This proceeding is before us on respondent's motion to dismiss for lack of jurisdiction because the petition was not filed within he time prescribed by section 6213. ¹

FINDINGS OF FACT

Herbert J. Stoll and Richard L. Barovick (hereinafter referred to as "the administrators") are the administrators of the Estate of Murray Levison, deceased, having *63 been so appointed by the Probate Court of the State of Connecticut, District of Stamford.

On August 3, 1978, respondent mailed to the administrators, by certified mail, a statutory notice of deficiency, determining a deficiency of $242,303.66 in estate tax against petitioner. The 90-day period for timely filing a petition with this Court to redetermine the deficiency expired on Wednesday, November 1, 1978, which was not a legal holiday in the District of Columbia.

The petition was dated October 31, 1978. The envelope containing the petition was mailed by regular mail, postage prepaid, in New York, New York; it was addressed to "CLERK, U.S. TAX COURT, Washington, D.C. 20217". The envelope was neither postmarked nor cancelled by the United States Postal Service (hereinafter referred to as "Postal Service"); the only postmark on the envelope was made by a private postage meter, that is, a postage meter not operated by the Postal Service. This postmark bore a date of October 31, 1978, the 89th day after the mailing of the notice of deficiency. There are no Postal Service markings on the envelope.

The petition was received by this Court in the United States mail and stamped by Court *64 personnel as having been received "1978 NOV 8 AM 10 01". It was then stamped as filed "1978 NOW 8 PM 12 40", 97th day after the mailing of the notice of deficiency.

On October 31, 1978, there was a Postal Service collection facility on the first floor of petitioner's counsel's office building at One Dag Hammarskjold Plaza, New York, New York. The last scheduled collection of the day at that facility was 5:15 p.m. The first scheduled collection of November 1, 1978, at the facility was 9:45 a.m.

The envelope containing the petition was not delivered to this Court within the time it ordinarily takes for delivery from New York, New York, of an envelope properly mailed on November 1, 1978.

OPINION

Respondent maintains that petitioner has failed to prove the petition was timely filed and that, as a result, this Court lacks jurisdiction. Petitioner asserts that the petition was timely filed.

We agree with respondent.

In order to give this Court jurisdiction to redetermine a deficiency asserted in a notice of deficiency, petitioner must have filed its petition with this Court within 90 days after the notice was mailed to it. ² (Petitioner does not claim that it was entitled to the 150-day *65 period allowed to persons outside the country.) In the instant case, the petition was filed on the 97th day, so petitioner has not complied with the basic statutory requirement for invoking our jurisdiction.

Recognizing this, petitioner relies on section 7502(a), ^3*67 generally to the effect that timely mailing is timely filing. Since the only postmark on the envelope is one not made by the Postal Service, petitioner relies also on section 7502(b) ⁴ and the regulations prescribed thereunder. The relevant subdivision of these regulations, section 301.7502-1(c)(1)(iii)(b), ^{5*68 *69} Proced. & Admin. Regs., provides that section 7502 is to apply to such mail if (1) the postmark bears a timely date and (2) *66 delivery occurs within the time it ordinarily takes for delivery of an envelope properly mailed on the last day prescribed for filing. Alternatively, the regulations provide that the postmark will be determinative of timely filing only if the person required to file the particular document establishes: (1) that the document was actually deposited in the mail in time to be collected on or before the last day for filing; (2) the delay in delivery was attributable to delay in transmission of the mail; and (3) the cause of the delay.

Respondent contends that the timely-mailing-timely-filing provisions of section 7502 are not applicable to petitioner because (1) the delivery did not occur within the time it ordinarily takes for delivery from New York to Washington, D.C., of an envelope properly mailed on the last day prescribed for filing, and (2) petitioner has failed to establish the three conditions of the alternative rule prescribed by the regulations. ⁶ Petitioner asserts (1) that the delivery did occur within the time it ordinarily takes for delivery *70 from New York to Washington, D.C., and alternatively (2) that it has shown that the petition was actually deposited in the mail in time to be collected within the 90-day statutory period, that any delay in delivery was attributable to a delay in the transmission of mail, ad that it has shown the cause of the delay.

The burden of proving the Court has jurisdiction is on petitioners. ; .

Time Ordinarily Required for Delivery

Respondent first contends that notwithstanding the timeliness of the postmark date, the petition was not received at the Tax Court within the time ordinarily required for the delivery of a document properly mailed from New York. To support this contention *71 respondent presented the testimony of the manager of quality control employed by the Postal Service in New York. The witness testified that mail deposited at a mail box in New York by 5:00 p.m. or brought into a post office in New York no later than 5:00 p.m. would ordinarily be received at the U.S. Tax Court in Two days. Specifically, he testified that if petitioner's counsel had placed the envelope in the postal collection facility on the first floor of his office building around 8:30 p.m. on October 31, 1978 (as testified to by petitioner's counsel), it would normally be picked up at 9:45 a.m. on November 1, 1978, and it normally would arrive in Washington, D.C., on Friday, November 3, 1978. The witness testified that approximately 86 percent of the mail sent from New York to Washington, D.C., during the period October 7, 1978, through December 23, 1978, was delivered within the two-day period.

In support of its contention that seven days is within the time it ordinarily takes to deliver mail from New York to Washington, D.C., petitioner presented the testimony of petitioner's counsel that he had personally experienced problems with the mail whereby mail might not be delivered *72 for two weeks from the time mailed. Petitioner also relies on the quality control manager's testimony that it is possible that a letter mailed in New York might not get to Washington, D.C., until seven days later.

What the ordinary time is for delivering mail is a factual matter. ; . Although the evidence might justify a conclusion that receipt by this Court on Monday, November 6, 1978, would satisfy the requirement of the regulation (see ), we are not persuaded that the actual receipt by this Court, on Wednesday, November 8, 1978, satisfies this requirement. The fact that it is possible that a letter may be delayed even longer does not thereby extend what is the ordinary period of delivery. "Ordinary" means "of a kind t be expected in the normal order of events." Webster's New Collegiate Dictionary (1977).

On this point we hold for respondent.

Alternative Rule

Since we have concluded that the petition was not delivered within the ordinary time of delivery, if petitioner is to qualify under the regulations, it must do so under the alternative rule by establishing (1) the *73 time when the petition was deposited in the mail, (2) the fact that the delay in delivery was due to delay in the transmission of the mail, and (3) the cause of the delay. , affg. a Memorandum Opinion of this Court; ⁷, affd. per curiam .

Testimony was taken as to time of mailing. Testimony was taken that the address noted on the envelope should not have resulted in any delay in transmission. However, no testimony was presented as to the cause of the delay that evidently occurred.

Petitioner asserts that the poor quality of service by the Postal Service was the cause of delay. Petitioner relies on the general experience of its counsel and on committee report and Congressional Record descriptions of poor postal service cited in Stottter v. Commissioner, 69 T.C. at 899, as a basis for this assertion. In fact, petitioner's counsel admitted he failed to inquire at the Postal Service about any possible causes of delay during the relevant period even though a continuance had been granted for precisely that purpose. Further, petitioner's *74 counsel testified that he knew of no reason for the delay.

Petitioner has failed to show a cause of delay. Poor quality of service by the Postal Service might affect our determination of the time ordinarily required for delivery ( ); however, it is not the sort of specific cause of delay contemplated by the regulations. See ; . We are unable to conclude that petitioner has met the requirements of respondent's "legislative" regulations.

On this alternative, also, we hold for respondent.

* * *

(1) Respondent asks us to apply the rules of , affd. , because of the opinion of the Court of Appeals for the Second Circuit in We hold for respondent because of our analysis of the statute, the "legislative" regulations, and the decided cases, all as applied to the facts as we find them. Reliance on the rule in Golsen would not change the result and so is inappropriate in this case.

(2) Petitioner argues that it is important that this case not be dismissed because it is related to *75 another case pending before the Tax Court and a decision in the instant case may affect the amount of deficiency in that other case. We have stated on several occasions that we prefer to hold that this Court has jurisdiction, whenever possible, so as to provide taxpayers with an opportunity to obtain judicial redetermination of their tax liability prior to the payment thereof. E.g., ; . However, the Congress has limited the period for filing a petition with this Court and we have no choice but to reject this petition because it has not been filed within the time allowed by the law. E.g., , affg. an Unpublished Order of this Court; Petitioner need not be denied its day in court as it may pay the deficiency, file a claim for refund, and, if the claim is denied, sue to recover in the United States District Court or the Court of Claims.

An appropriate order granting respondent's motion will be issued.