2002 Tax Ct. Memo LEXIS 34">*34 Respondent's motion to dismiss for lack of jurisdiction granted.
MEMORANDUM OPINION
RUWE, Judge: This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction. Respondent's motion is based on the ground that the petition in this case was not timely filed. The Court held a hearing on respondent's motion.
On May 3, 2001, respondent mailed petitioners a notice of deficiency for their taxable year 1996. The 90-day period for filing a petition with this Court expired on August 1, 2001. 1 The petition was received and filed by this Court on August 10, 2001, 99 days after the mailing of the notice of deficiency. 2
The petition was mailed to the Court in2002 Tax Ct. Memo LEXIS 34">*35 a properly addressed envelope bearing a privately metered postmark dated August 1, 2001, and showing the point of origin as Oakland, California. Affixed to the envelope is a certified mail sticker. Neither the envelope nor the certified mail sticker bears any U.S. Postal Service postmark. Additionally, the sender's receipt does not contain a U.S. Postal Service postmark.
Respondent contends that this case should be dismissed because the petition was not filed within the time prescribed by
This Court's jurisdiction to redetermine a deficiency depends upon the issuance of a valid notice of deficiency and a timely2002 Tax Ct. Memo LEXIS 34">*36 filed petition.
If the document * * * is sent by U.S. certified mail and the sender's receipt is postmarked by the postal employee to whom the document * * * is presented, the date of the U.S. postmark on the receipt is treated as the postmark date of the document. Accordingly, the risk that the document will be postmarked on the day that it is deposited in the mail may be eliminated by the use of * * * certified2002 Tax Ct. Memo LEXIS 34">*37 mail.
In the instant case, petitioners sent their petition by certified mail. However, the regulation does not apply because the sender's receipt 4 was never presented to any postal employee and was not postmarked. See
2002 Tax Ct. Memo LEXIS 34">*38
Where the postmark in question is made by a private postage meter,
In the instant case, the petition was received by the Court 9 days after the last date prescribed for filing. Since the privately metered postmark on the envelope is August 1, 2001, the last date prescribed for filing, the petition will be deemed timely under the regulations if it was received within the time that mail of the same class would ordinarily be received if mailed on that date from the same point of origin. The point of origin for these purposes is Oakland, California. Whether a petition has been received within the normal mailing period is a factual question, and petitioners bear burden of proving that the 9-day delivery time is within the normal mailing period for mail sent from Oakland, California, to Washington, D.C. See
Petitioners claim that they relied on statements in the notice of deficiency that a petition will be considered timely filed if the postmark date on the envelope containing the petition falls within the prescribed 90-day period. Petitioners contend that they mailed their2002 Tax Ct. Memo LEXIS 34">*41 petition on August 1, 2001, and that certified mail takes longer to deliver than regular mail.
Petitioners introduced no evidence to establish the normal delivery time for mail sent from Oakland, California, to Washington, D.C. They have not produced evidence in support of their contention that certified mail takes longer to deliver than noncertified mail or otherwise demonstrated that a 9-day delivery time is within the normal mailing period. 62002 Tax Ct. Memo LEXIS 34">*42 Thus, petitioners have not established that their petition was received no later than the time ordinarily required for the delivery of a petition postmarked at the same point of origin by the U.S. Post Office of the last day for its filing. 7 Accordingly, petitioners' petition will be deemed untimely unless they can establish that the petition was actually deposited in the mail on or before August 1, 2001, that the delay in delivery was attributable to delay in the transmission of the mail, and the cause of the delay.
2002 Tax Ct. Memo LEXIS 34">*43 Petitioners have not argued or presented evidence that there was a delay in delivery attributable to delay in the transmission of the mail, and the cause of the delay. Consequently, petitioners have failed to establish that they qualify for the timely mailing/timely filing rule of
An appropriate order of dismissal for lack of jurisdiction will be entered.
1. Aug. 1, 2001, was a Wednesday and was not a legal holiday in the District of Columbia. ↩
2. Aug. 10, 2001, was a Friday and was not a legal holiday in the District of Columbia.↩
3. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court rules of Practice and Procedure.↩
4. A sender's receipt to which
5. In certain circumstances, if the taxpayer introduced credible evidence with respect to any factual issue relevant to ascertaining the proper tax liability, sec. 7491 places the burden of proof on respondent. Sec. 7491(a); Rule 142(a)(2). Sec. 7491 is effective with respect to court proceedings arising in connection with examinations commencing after July 22, 1998. Internal Revenue Service Restructuring and Reform Act of 1998, Pub. L. 105-206, sec. 3001(c)(2), 112 Stat. 726. Petitioners do not contend, not is there evidence, that their examination commenced after July 22, 1998, or that sec. 7491 applies in this case.↩
6. At the hearing, respondent attempted to introduce into evidence a declaration from a U.S. postal employee as to the normal delivery time for mail sent from Oakland, California, to Washington, D.C. We sustained petitioners' hearsay objection to the declaration. ↩
7. We note that case law indicates that a 9-day delivery time has not historically been within the normal mailing period for mail sent from Oakland, California to Washington, D.C. See, e.g.,
