                        T.C. Memo. 2000-316



                      UNITED STATES TAX COURT



           MICHAEL H. AND BARBARA SELTER, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 2688-00.                      Filed October 6, 2000.


     Michael H. Selter, pro se.

     Alan R. Peregoy, for respondent.


                        MEMORANDUM OPINION


     ARMEN, Special Trial Judge:   This matter is before the Court

on respondent's Motion to Dismiss for Lack of Jurisdiction, filed

May 1, 2000.   As discussed in detail below, we shall grant

respondent's motion to dismiss.

Background

    On December 2, 1999, respondent mailed a notice of deficiency

to Michael H. and Barbara Selter (the Selters or petitioners)
                                - 2 -


determining a deficiency of $31,970 in their Federal income tax

for 1992.    Respondent mailed the notice to petitioners at their

last known address; namely, 6806 Selkirk Drive, Bethesda,

Maryland 20817.    Petitioner Michael H. Selter is a partner in a

law firm located in Washington, D.C.

     On Wednesday, March 8, 2000, at approximately 8 a.m., the

Tax Court mailroom received an envelope containing the Selters'

petition contesting the notice of deficiency described above.

The envelope bears a preprinted address label listing the name

and address of Mr. Selter's law firm as the sender, and the

envelope identifies the Court as the addressee.1    Notably, the

envelope does not bear any postage, nor does it bear any type of

postmark.    There is no adhesive or sticky residue in the upper

right-hand corner of the envelope, suggesting that postage may

never have been affixed thereto.    Further, the envelope is not

torn, damaged, or unusually soiled, nor does it appear to have

been abused, and there are no marks or notations on the envelope

indicating that it was misdirected or otherwise delayed in

transit.    Affixed to the envelope are a certified mail receipt



     1
        Although the Court's ZIP Code was erroneously listed on
the address label as 20817 (the ZIP code for the Selters’ home
address in Bethesda, Maryland) rather than the Court’s correct
ZIP Code of 20217, a representative of the U.S. Postal Service
testified that such an error would not have delayed the delivery
of the petition to the Court. See also Price v. Commissioner, 76
T.C. 389 (1981).
                                 - 3 -


(sticker No. Z 401 327 528) and the anchors for the so-called

certified mail green card used to confirm receipt.    An employee

of the Tax Court signed the green card on March 8, 2000, and it

was returned to petitioners in due course by the Postal Service.

The petition, signed by both petitioners, is dated February 24,

2000.

     Respondent filed a Motion to Dismiss for Lack of

Jurisdiction on the ground that the petition was not filed within

the 90-day period prescribed in section 6213(a).2    Petitioners

filed an opposition to respondent's motion, asserting that the

petition was timely mailed to the Court on February 28, 2000.

Petitioners' opposition includes a declaration and a supplemental

declaration signed by Tyree Hunt (Ms. Hunt), a temporary employee

of Mr. Selter's law firm.     In the declaration, Ms. Hunt states

that on February 28, 2000, she delivered the envelope bearing the

petition to the Postal Service.     In the supplemental declaration,

Ms. Hunt states that she did not deliver the envelope bearing the

petition to the Postal Service, but rather left the envelope with

other office mail for in-house pickup by a postal carrier.

        This matter was called for hearing at the Court's motions

session in Washington, D.C.     Counsel for respondent appeared at



     2
        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 -


the hearing and offered argument in support of respondent's

motion to dismiss.    Also, respondent called as a witness Waverly

Vaughan (Ms. Vaughan), Supervisor of Operations at the U.S.

Postal Service located on Brentwood Road in Washington, D.C.    The

U.S. Postal Service on Brentwood Road is responsible for

delivering mail to the Tax Court.

     Ms. Vaughan testified that certified mail item No. Z 401 327

528 was received at the Brentwood Road Postal Service either late in

the evening on March 7, 2000, or very early in the morning on March

8, 2000.   Ms. Vaughan also testified that the normal delivery time

for an item mailed from one address in Washington, D.C., to another

address in Washington, D.C., is 1 to 2 days.    Ms. Vaughan further

testified that normally an envelope lacking postage would be

returned to the sender or delivered to the addressee for collection

of the postage due.   However, Ms. Vaughan acknowledged that the

Postal Service does, on occasion, mistakenly deliver mail lacking

postage.

     Mr. Selter appeared at the motions hearing and offered argument

in opposition to respondent's motion.    When the Court informed Mr.

Selter that the Court would not rely on Ms. Hunt's conflicting

declarations in deciding the case, Mr. Selter requested a

continuance to allow him to call Ms. Hunt as a witness.

     This matter was called for a second hearing at the Court's

motions session in Washington, D.C.     Both counsel for respondent and
                                - 5 -


Mr. Selter appeared at the hearing and offered argument in respect

of the pending motion.    Mr. Selter informed the Court that he had

contacted Ms. Hunt and that she had agreed to appear at the hearing.

However, Mr. Selter failed to issue a subpoena to Ms. Hunt, and she

did not appear to testify.   However, the office manager of Mr.

Selter’s firm did appear and testify.   Also, during the hearing, Mr.

Selter offered as an exhibit an article titled "Postal Service Gives

'Check in the Mail' A Whole New Twist", published in the New York

Times on July 28, 2000.   Respondent objected to the admission of the

article on the ground that it was hearsay.    The Court deferred

ruling on the admissibility of the article.

Discussion

     The Court's jurisdiction to redetermine a deficiency depends

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

petition.    Rule 13(a), (c); see Monge v. Commissioner, 93 T.C. 22,

27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

Section 6212(a) expressly authorizes the Commissioner, after

determining a deficiency, to send a notice of deficiency to the

taxpayer by certified or registered mail.    It is sufficient for

jurisdictional purposes if the Commissioner mails the notice of

deficiency to the taxpayer at the taxpayer's "last known address".

Sec. 6212(b); Frieling v. Commissioner, 81 T.C. 42, 52 (1983).      The

taxpayer, in turn, generally has 90 days from the date the notice of
                               - 6 -


deficiency is mailed to file a petition in this Court for a

redetermination of the deficiency.     See sec. 6213(a).

     There is no dispute that respondent mailed the notice of

deficiency to petitioners at their last known address on December 2,

1999.   Accordingly, the 90-day period for filing a timely petition

with the Court expired on Wednesday, March 1, 2000.     See id.   The

petition in this case was not filed until Wednesday, March 8, 2000.

     Although the petition was not timely filed, petitioners

maintain that the petition was timely mailed to the Court on

February 28, 2000, 2 days before the expiration of the 90-day period

and 10 days before the date the petition was delivered to the Court.

In particular, petitioners offered evidence that on February 28,

2000, petitioner Michael H. Selter directed Ms. Hunt to mail the

petition to the Court.   Petitioners offered circumstantial evidence

that Ms. Hunt may have placed the petition in an envelope bearing

postage from the law firm's private postage meter and may have

placed the envelope with the firm's outgoing mail for pickup by a

postal carrier in the lobby of the office building where the firm is

located.

     Section 7502 provides that, in certain circumstances, a timely

mailed petition will be treated as though it were timely filed.

Where the postmark in question is made by a private postage meter,

the provisions implementing the "timely mailing/timely filing" rule
                              - 7 -


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, 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. If the envelope has a
     postmark made by the United States Post Office in addition
     to the postmark not so made, the postmark which was not
     made by the United States Post Office shall be
     disregarded, and whether the envelope was mailed in
     accordance with this subdivision shall be determined
     solely by applying the rule of (a) of this subdivision.
     [Emphasis added.]

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).
                              - 8 -


     Based upon 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 the first instance, the controlling regulation contemplates that

the timely mailing/timely filing rule may be invoked where the

petition is delivered to the Court in an envelope or wrapper that

contains a timely private postage meter postmark.   The envelope

bearing the petition arrived at the Court without any postmark

indicating the date that it was mailed to the Court.   Although we

will allow extrinsic evidence to prove the date of mailing where an

envelope lacks a postmark, see Sylvan v. Commissioner, 65 T.C. 548,

553-555 (1975), there is absolutely no indication that any type of

postage was ever affixed to the envelope.   See section 7502(a)(2),

regarding mailing requirements, specifically including the

requirement that postage be prepaid.   We are not persuaded by

petitioners' circumstantial evidence that a timely private postage

meter label was properly applied to the envelope.

     Even assuming for the sake of argument that petitioners have

proven that the envelope bearing the petition was placed in the mail

with a timely private postage meter postmark of February 28, 2000,

section 301.7502-1(c)(1)(iii)(b), Proced. & Admin. Regs., further

requires that the petition be delivered to the Court within the

ordinary mailing time for that class of mail.   We accept Ms.

Vaughan's testimony that the ordinary delivery time for an item
                               - 9 -


mailed from one location in Washington, D.C., to another location in

Washington, D.C., is 1 to 2 days.   The petition in this case was

delivered to the Court 10 days after it was allegedly mailed and 8

days after the expiration of the 90-day filing period.   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 delay in the transmission of the

mail, and the cause of the delay.   Petitioners have not offered

persuasive proof with respect to the date that the petition was

actually placed in the mail.   We have nothing but Ms. Hunt's

conflicting declarations regarding her handling of the petition.    At

best, we are left to speculate that the envelope bearing the

petition was left in the lobby of Mr. Selter's office building on or

about February 28, 2000, for pickup by a postal carrier.   Moreover,

there is no evidence in the record demonstrating that the delay in

the delivery of the petition to the Court was due to a delay in the
                              - 10 -


transmission of the mail or the cause of such delay.3   Under the

circumstances, we hold that the petition was not timely filed.

     As a final matter, petitioners erroneously contend that the

petition should be deemed to have been timely filed pursuant to the

common-law "mailbox rule".   The common-law mailbox rule provides

that proof of a properly mailed document creates a presumption that

the document was delivered and actually received by the addressee.

See Estate of Wood v. Commissioner, 92 T.C. 793, 798-799 (1989),

affd. 909 F.2d 1156 (8th Cir. 1990), and cases cited therein.    There

is no question in this case that the petition was delivered to the

Court on March 8, 2000.   However, petitioners must establish that

the petition was timely mailed to the Court.   Given the lack of

satisfactory proof that the petition was placed in the mail within

the 90-day filing period prescribed in section 6213(a), petitioners'

reliance on the common-law mailbox rule is misplaced.




     3
        We agree with respondent that the New York Times article
that petitioners offered into evidence in this case contains
hearsay; nevertheless, we admit the article into evidence.
Although the article indicates that the U.S. Postal Service
experienced difficulties delivering certified mail in various
jurisdictions during the period April through July 2000, the
article does not mention Washington, D.C., as a trouble spot, and
we do not consider the article to be persuasive evidence that the
delay in the delivery of the petition in this case was due to a
delay in the transmission of the mail, or the cause of such
delay.
                             - 11 -


     Consistent with the preceding discussion, we shall grant

respondent's Motion to Dismiss for Lack of Jurisdiction.4

     To reflect the foregoing,



                                      An order of dismissal for

                                 lack of jurisdiction will be

                                 entered.




     4
        Although petitioners cannot pursue their case in this
Court, petitioners are not without a remedy. In short,
petitioners may pay the tax, file a claim for refund with the
Internal Revenue Service, and if the claim is denied, sue for a
refund in the Federal District Court or the Court of Federal
Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
