Winchell v. Commissioner
Opinion
On the 90th day after respondent mailed the notice of deficiency, P placed his petition in the hands of a private air express service, which hand-delivered it to the Court on the 91st day. Respondent did not move to dismiss the petition but answered it, denying P's assignments of error and most of his allegations of fact. The case was subsequently tried and briefed on the merits by the parties. Shortly thereafter the Court noticed that the petition may not have been timely filed. Accordingly, the parties were ordered to show cause why the case should not be dismissed for lack of jurisdiction.
MEMORANDUM OPINION
DAWSON,
1. Whether the Court on its own motion may inquire into its jurisdiction to hear and decide a case after that case has been tried and briefed on the merits by the parties.
2. Whether the period of time given a taxpayer to file a petition with the Court begins to run from the date on which the notice of deficiency is mailed by the Commissioner or the date on which it is received by the taxpayer.
3. Whether the timely-mailing/timely-filing provisions of
Petitioner resided in Breckenridge, Colorado at the time that he filed his petition in this case. He filed a Federal income tax return for the calendar year 1975 with the Internal Revenue Service.
On Wednesday, June 18, 1980 respondent mailed a notice of deficiency to petitioner at this last known address in Colorado. In the notice respondent determined the followiong deficiency in petitioner's Federal income tax and additions to tax for 1975:
| Additions to Tax | ||
| Deficiency | Section 6651(a)(1) | Section 6653(a) |
| $341,662 | $85,416 | $17,958 |
At 1:00 p.m. on Tuesday, September 16, 1980 petitioner's former attorney placed in the hands of a private air express service in Denver, Colorado, a 17-page petition disputing the deficiency and additions to tax. September 16 was the 90th day after respondent mailed the statutory notice and was not a legal holiday in the District of Columbia. At 9:50 a.m. on Wednesday, September 17, 1980 the express service hand-delivered the petition to the Court in Washington, D.C.
After the petition was filed with the Court, a copy was served on respondent. However, respondent did not move with respect to the petition but filed an answer denying petitioner's *568 assignments of error and most of his allegations of fact.
The parties subsequently tried this case and briefed the issues on the merits. At no time did either party suggest that we might lack jurisdiction to hear and decide the case.
Shortly after this case had been briefed, the Court noticed that the petition may not have been timely filed. Accordingly, we issued an order to show cause why this case should not be dismissed for lack of jurisdiction. Both parties filed a response. Although neither questioned the propriety of our order, we think we should briefly address that matter in view of its importance.
It is well settled that this Court can proceed in a case only if it has jurisdiction and that either party, or the Court sua sponte, can question jurisdiction at any time.
It is clear that the Court's jurisdiction to redetermine a deficiency in income tax depends on the issuance by the Commissioner of a notice of deficiency
Within 90 days, or 150 days if the notice is addressed to a person outside the United States,
See also section 301.6213-1(a)(1), Proced. & Admin. Regs.
Petitioner admits that the notice of deficiency was mailed on June 18, 1980. However, he alleges that it was not received by him "until several days later." We are not sure whether he means to imply by this allegation that the period of time within which a petition must be filed with the Court begins to run from the date on which the statutory notice is received by the taxpayer. If that is his contention, it is without merit.
The petition in this case was hand delivered to the Court on the 91st day. We must therefore dismiss the case for lack of jurisdiction unless the timely-mailing/timely-filing provisions of
Petitioner contends that he "mailed" his petition to the Court "by express service" on September 16, the 90th day, and that it was therefore timely filed. We disagree.
In
Our dismissal of this case may seem like a harsh result. However, we cannot *573 ignore jurisdictional questions. What is truly regrettable is that dismissal of the petition could have very easily been avoided if it had been mailed on September 16 by certified or registered mail. 4 See
To reflect the foregoing,
Footnotes
1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as amended and in effect at the time of issuance of the statutory notice (June 18, 1980).
2.
SEC. 7502 . TIMELY MAILING TREATED AS TIMELY FILING AND PAYING.(a) GENERAL RULE.--
(1) DATE OF DELIVERY.--If any return, claim, statement, or other document required to be filed, or any payment required to be made, within a prescribed period or on or before a prescribed date under authority of any provision of the internal revenue laws is, after such period or such date, delivered by United States mail to the agency, officer, or office with which such return, claim, statement, or other document is required to be filed, or to which such payment is required to be made, the date of the United States postmark stamped on the cover in which such return, claim, statement, or other document, or payment, is mailed shall be deemed to be the date of deliver or the date of payment, as the case may be.
(2) MAILING REQUIREMENTS.--This subsection shall apply only if--
(A) the postmark date falls within the prescribed period or on or before the prescribed date--
(i) for the filing (including any extension granted for such filing) of the return, claim, statement, or other document, or
(ii) for making the payment (including any extension granted for making such payment), and
(B) the return, claim, statement, or other document, or payment was, within the time prescribed in subparagraph (A), deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the agency, officer, or office with which the return, claim, statement, or other document is required to be filed, or to which such payment is required to be made.↩
3. See also
Wilson v. Commissioner, T.C. Memo. 1980-258↩4. Indeed, the petition could have merely been deposited in the mail in the United States with sufficient postage prepaid on September 16. If the envelope were postmarked on that day, the petition would have been treated as timely-filed. See
section 7502(a)↩ . As stated above, the risk that the petition would not have been postmarked on the critical day could have been overcome by the use of certified or registered mail. See section 301.7502-1(c)(2), Proced. & Admin. Regs.5. Of course, petitioner can still obtain judicial review of the substantive issues, but he will first have to pay the deficiency determined by respondent, file a refund claim, and then sue within the statutory period for the refund in the appropriate United States District Court or the United States Claims Court. See sections 7422(a) and 6532(a);
Flora v. United States, 362 U.S. 145↩ (1960)
Case-law data current through December 31, 2025. Source: CourtListener bulk data.