                        T.C. Memo. 2001-11



                      UNITED STATES TAX COURT



            DAVID AND CARYN PETERSON, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1440-00.                     Filed January 22, 2001.


     Sheldon A. Smith, for petitioners.

     Melissa J. Hedtke, for respondent.



                        MEMORANDUM OPINION


     PARR, Judge:   This case is before the Court on respondent's

Motion To Dismiss for Lack of Jurisdiction (respondent's motion).

Respondent seeks dismissal on the ground that the petition was

filed untimely.   Petitioners, in their objection to respondent's

motion, allege that the petition was deposited in the mail before

expiration of the 90-day period for filing and therefore was
                                - 2 -

filed timely.   As discussed in detail below, we shall grant

respondent's motion.

Background

     In a notice of deficiency dated October 26, 1999, and sent

by certified mail on that day, respondent determined a deficiency

of $1,403 in petitioners' Federal income tax for the taxable year

1997.   There is no dispute that respondent mailed the notice to

petitioners' last known address.   Petitioners resided in

Columbus, North Dakota, at the time they filed their petition in

this case.   The petition, signed by petitioners' attorney,

Sheldon A. Smith (Mr. Smith), is dated January 24, 2000.

     The envelope in which the petition was mailed bears a

private-meter stamp date that reads "Bismark N. Dak. Jan 24 '00".

Affixed to the envelope are a certified mail receipt sticker (No.

Z 354 628 323) and the anchors for the so-called certified mail

green card used to confirm receipt.     Neither the envelope nor the

certified mail receipt sticker bears any U.S. Postal Service

postmark.    An employee of the Tax Court signed the green card on

February 8, 2000, and it was returned to petitioners in due

course by the U.S. Postal Service.

     Petitioners attached the affidavits of two of Mr. Smith's

employees to their objection to respondent's motion.    In the

first affidavit, Michelle Leary stated that she did not alter the

date on the private meter to falsify the date stamp, that the
                                - 3 -

envelope containing petitioners' petition was put through the

private meter, and that she instructed Laura Pfeifer (Ms.

Pfeifer), a file clerk, to put the envelope in the mail.      In the

second affidavit, Ms. Pfeifer stated that she delivered the

envelope to a U.S. Postal Service drop box in Bismark, North

Dakota (Bismark), sometime after the post office was closed and

before the time of the last mail pickup on the evening of January

24, 2000.

Discussion

     Respondent contends that this case should be dismissed as

the petition was not filed within the time prescribed by section

6213(a) and section 7502 and the regulations thereunder.1

     The Court's jurisdiction to redetermine a deficiency depends

upon the issuance of a valid notice of deficiency and a timely

filed petition.    See Rule 13(a), (c); Monge v. Commissioner, 93

T.C. 22, 27 (1989); Abeles v. Commissioner, 91 T.C. 1019, 1025

(1988); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

     The petition for redetermination of a deficiency must be

filed with this Court within 90 days (or 150 days if the notice

is addressed to a person outside the United States) after the

notice of deficiency is mailed to the taxpayer.    See sec.

6213(a).    The time provided for filing a petition is


     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
                               - 4 -

jurisdictional and cannot be extended.   Failure to file within

the prescribed period requires that the case be dismissed for

lack of jurisdiction.   See Estate of Cerrito v. Commissioner, 73

T.C. 896, 898 (1980); Stone v. Commissioner, 73 T.C. 617, 618

(1980).

     In this case, the 90-day period for filing a timely petition

with this Court pursuant to section 6213(a) expired on Monday,

January 24, 2000.2   The petition was not filed until Tuesday,

February 8, 2000, which was 105 days after the mailing of the

notice of deficiency.

     Although the petition was not timely filed, petitioners

maintain that the petition was timely mailed to the Court on

January 24, 2000, the last day of the 90-day period, and 15 days

before the petition was delivered to the Court.   Section 7502 and

the regulations thereunder provide that, in certain

circumstances, a timely mailed petition will be treated as though

it were timely filed.

     Section 301.7502-1(c)(2), Proced. & Admin. Regs., provides:

     If the document is sent by United States certified mail
     and the sender's receipt is postmarked by the postal
     employee to whom such document is presented, the date
     of the United States postmark on such receipt shall be
     treated as the postmark date of the document.
     Accordingly, the risk that the document will not be
     postmarked on the day that it is deposited in the mail
     may be overcome by the use of * * * certified mail.


     2
      Jan. 24, 2000, was not a legal holiday in the District of
Columbia.
                               - 5 -

     Although petitioners may have sent their petition by

certified mail, this regulation does not apply here because

petitioners never presented the sender's receipt to any postal

employee and it was never postmarked.   Cf. Brown v. Commissioner,

T.C. Memo. 1982-165.   In this circumstance, mailing their

petition by certified mail provided petitioners no protection.

     Where the postmark in question is made by a private postage

meter, the provisions implementing the “timely mailing/timely

filing” rule are contained in section 301.7502-1(c)(1)(iii)(b),

Proced. & Admin. Regs., which provides as follows:

          (b) If the postmark on the envelope or wrapper is
     made other than by the United States Post Office, (1)
     the postmark so made must bear a date on or before the
     last date, or the last day of the period, prescribed
     for filing the document, and (2) the document must be
     received by the agency, officer, or office with which
     it is required to be filed not later than the time when
     a document contained in an envelope or other
     appropriate wrapper which is properly addressed and
     mailed and sent by the same class of mail would
     ordinarily be received if it were postmarked at the
     same point of origin by the United States Post Office
     on the last date, or the last day of the period,
     prescribed for filing the document. However, in case
     the document is received after the time when a document
     so mailed and so postmarked by the United States Post
     Office would ordinarily be received, such document will
     be treated as having been received at the time when a
     document so mailed and so postmarked would ordinarily
     be received, if the person who is required to file the
     document establishes (i) that it was actually deposited
     in the mail before the last collection of the mail from
     the place of deposit which was postmarked (except for
     the metered mail) by the United States Post Office on
     or before the last date, or the last day of the period,
                               - 6 -

     prescribed for filing the document, (ii) that the delay
     in receiving the document was due to a delay in the
     transmission of the mail, and (iii) the cause of such
     delay.

     The validity of this regulation has been upheld.   See

Lindemood v. Commissioner, 566 F.2d 646, 649 (9th Cir. 1977),

affg. T.C. Memo. 1975-195; Fishman v. Commissioner, 420 F.2d 491,

492 (2d Cir. 1970), affg. 51 T.C. 869 (1969).

     On the basis of the record presented, we conclude that

petitioners cannot avail themselves of the timely mailing/timely

filing rule set forth in section 301.7502-1(c)(1)(iii)(b),

Proced. & Admin. Regs.

     In general, the regulation requires that the petition be

delivered to the Court within the ordinary mailing time for that

class of mail.   Petitioners concede that the ordinary delivery

time for an item mailed from Bismark to Washington, D.C., is 3 to

5 days.   The petition in this case was delivered to the Court 15

days after it was allegedly mailed.    It follows that the petition

was not delivered to the Court within the ordinary mailing time.

     Where a petition is mailed to the Court in an envelope

bearing a private postage meter postmark, but the petition is not

delivered to the Court within the ordinary mailing time for that

class of mail, a taxpayer seeking to rely on the timely

mailing/timely filing rule must establish that the petition was

actually deposited in the mail before the expiration of the 90-

day period, that the delay in receiving the petition was due to a
                                 - 7 -

delay in the transmission of the mail, and the cause of the

delay.   See Selter v. Commissioner, T.C. Memo. 2000-316.

     Petitioners have provided no evidence demonstrating that the

delay in the delivery of the petition to the Court was due to a

delay in the transmission of the mail or the cause of such a

delay.   To the contrary, petitioners admit in their objection to

respondent's motion that they have not established either of

these requirements:    "Petitioner [sic] and their attorney do not

understand why the mail was not received by the Tax Court within

three days.   It appears the weather should not have complicated

the mailing process, however this factor has not been thoroughly

explored."

     The petition was received by the Court after expiration of

the statutory filing period, and petitioners have failed to prove

the facts necessary under the regulations to establish timely

filing by mail.     Therefore this case must be dismissed for lack

of jurisdiction.3    This result could easily have been avoided if




     3
      We note, finally, that petitioners need not be denied their
day in court as they may pay the deficiency, file a claim for
refund, and, if the claim is denied, commence an action in U.S.
District Court or the U.S. Court of Federal Claims to recover the
tax paid. See Drake v. Commissioner, 554 F.2d 736, 739 (5th Cir.
1977).
                                 - 8 -

the envelope or the certified mail sender's receipt had been

postmarked by the U.S. Postal Service on or before January 24,

2000.   See sec. 7502(a), (c); sec. 301.7502-1(c)(2), Proced. &

Admin. Regs.

     To reflect the foregoing,

                                              An order of dismissal for

                                         lack of jurisdiction will be

                                         entered.
