                        T.C. Memo. 2000-348



                     UNITED STATES TAX COURT



                 DONNA J. HENDLEY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent


     Docket No. 3877-00.                     Filed November 9, 2000.


     Jeffrey G. Williams, for petitioner.

     Ronald L. Buch, Jr. and Erin K. Huss, 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 30, 2000.   As discussed in detail below, we shall grant

respondent's motion to dismiss.1




     1
        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.
                                 - 2 -


Background

    On January 6, 2000, respondent mailed a notice of deficiency

to Donna J. Hendley (petitioner) determining a deficiency of

$49,053 in her Federal income tax for 1995.   There is no dispute

that respondent mailed the notice to petitioner at her last known

address.

     On April 7, 2000, the Court received and filed a petition

submitted on petitioner’s behalf by her counsel, Jeffrey G.

Williams (Mr. Williams).   The petition is dated April 5, 2000.

     The petition arrived at the Court in an envelope bearing

sufficient postage, a priority mail sticker, and multiple U.S.

Postal Service postmarks all dated April 6, 2000.    The legend

around the perimeter of the postmarks states: “USPS MESA AZ. STA.

NO. 10".   At the time that the petition was filed, petitioner

resided in Flagstaff, Arizona.

     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).    Petitioner

filed an objection to respondent's motion to dismiss, accompanied

by an affidavit executed by Mr. Williams, asserting that the

petition was timely mailed to the Court on April 5, 2000.    Mr.

Williams’ affidavit states in pertinent part that on April 5,

2000, at approximately 4:30 p.m., he delivered the petition to a

so-called contract postal unit maintained at a small retail store
                                - 3 -


known as Impressive Greetings, located at 1225 South Alma School

Road, Mesa, Arizona.    Mr. Williams further states that, at the

time he mailed the petition, he saw the clerk affix a postmark on

the envelope.

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

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

the hearing and offered argument in support of respondent's

motion to dismiss.   Although no appearance was entered by or on

behalf of petitioner at the hearing, petitioner did file a

written statement with the Court pursuant to Rule 50(c).

Following the hearing, the Court directed the parties to file

responses providing additional details regarding the postal

services provided at Impressive Greetings.

     Both parties filed responses as directed by the Court.

Respondent’s response was accompanied by a declaration executed

by Michael J. Noggle (Mr. Noggle), identified as a co-owner of

Impressive Greetings.    Mr. Noggle’s declaration states that the

services provided by Impressive Greetings as a contract postal

unit are the equivalent of services provided by the U.S. Postal

Service.   The declaration further states that the contract postal

unit at Impressive Greetings processes regular, priority, and

express mail, as well as registered and certified mail.    With

regard to the practices and procedures employed by the contract

postal unit at Impressive Greetings, the declaration states:
                                 - 4 -


          5. The main post office branch in Mesa, Arizona
     picks up mail from our contract postal unit twice a
     day. Once at 2:15 p.m., and again at 4:30 p.m. The
     4:30 p.m. pick-up is the last mail pick-up of the day.
     There is a visible sign on the wall in the back of the
     contract postal unit telling customers that the pick-up
     times are at 2:15 p.m. and 4:30 p.m.

          6. Impressive Greetings is open for business until
     5:00 p.m. Monday through Friday.

                     *   *   *    *      *   *   *

          8. Our policy is to turn our hand-stamp postmark
     date to the next day at 4:30 p.m. This way, any mail
     that goes out with the 4:30 p.m. mail has the current
     day’s postmark on it. The mail that arrives after the
     main post office has done their pickup should have the
     following day’s postmark on it. The changing of the
     postmark date stamp at this time is in conformity with
     the direction of the Mesa, Arizona, United States Post
     Office. We are not supposed to predate or postdate
     mail. The postmark should reflect the date that the
     mail will be picked up from our establishment by the
     Mesa, Arizona, United States Post Office.

Mr. Noggle’s declaration includes a sample of the postmark used

by the postal contract unit at Impressive Greetings.     The sample

postmark matches the postmark on the envelope bearing the

petition in this case.

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

motions session in Washington, D.C.      Counsel for respondent again

appeared and offered argument in support of respondent’s motion

to dismiss.   Although no appearance was entered by or on behalf

of petitioner at the hearing, petitioner again filed a written

statement with the Court pursuant to Rule 50(c).
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Discussion

     This 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); 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 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 petitioner at her last known address on January 6,

2000.   Accordingly, the 90-day period for filing a timely

petition with the Court expired on Wednesday, April 5, 2000.     See

sec. 6213(a).    The petition in this case was not filed until

April 7, 2000.

     Although the petition was not timely filed, petitioner

maintains that the petition was mailed to the Court on April 5,

2000-–the 90th day after the mailing of the notice.    Petitioner
                                - 6 -


offered circumstantial evidence that Mr. Williams delivered the

petition to the contract postal unit at Impressive Greetings late

in the afternoon on April 5, 2000.

     Section 7502 provides that, under certain circumstances, a

timely-mailed petition will be treated as though it were timely

filed.   Section 7502(a) states in pertinent part:

     SEC. 7502(a). General Rule.–-
            (1) Date Of Delivery.–-If any return, claim,
     statement, or other document required to be filed,
     * * * 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,
     * * * 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 delivery or the date of payment, as
     the case may be.

In sum, section 7502(a) provides that if a petition is delivered

to the Court by the U.S. Postal Service, then the date of the

postmark stamped on the envelope bearing the petition shall be

deemed the date of delivery.2   See sec. 301.7502-1(c)(1)(iii)(a),

Proced. & Admin. Regs., which provides, in part, that “If the

postmark does not bear a date on or before the last date, or the

last day of the period, prescribed for filing the document, the


     2
        Sec. 7502(c) provides an additional safeharbor where a
taxpayer mails his petition to Court using certified or
registered mail. Because Mr. Williams concedes that he did not
use certified or registered mail in this case, we need not
consider sec. 7502(c).
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document will be considered not to be filed timely, regardless of

when the document is deposited in the mail.” (Emphasis added.)

     Based upon the record presented, we conclude that the

petition was not timely filed pursuant to section 7502(a).

Simply put, the U.S. Postal Service postmark date of April 6,

2000, affixed to the envelope bearing the petition, is conclusive

proof that the petition was not timely filed under section

7502(a).

     Petitioner offers extrinsic evidence that the petition was

timely mailed on April 5, 2000.    Although we allow extrinsic

evidence to prove the date of mailing where an envelope lacks a

postmark or the postmark is illegible, see Sylvan v.

Commissioner, 65 T.C. 548, 553-555 (1975), such evidence is

irrelevant in this case inasmuch as the envelope bears legible

U.S. Postal Service postmarks dated after the 90th day prescribed

for filing a timely petition.    See Shipley v. Commissioner, 572

F.2d 212 (9th Cir. 1977); Drake v. Commissioner, 554 F.2d 736

(5th Cir. 1977); Kahle v. Commissioner, 88 T.C. 1063 (1987);

Wiese v. Commissioner, 70 T.C. 712 (1978); Hamilton v.

Commissioner, T.C. Memo. 1982-201.       In conjunction with the

foregoing, we note that the April 6, 2000 postmark date, a date 1

day before the petition was delivered to the Court, is not

overtly erroneous on its face.    See Harrison v. Commissioner,

T.C. Memo. 1990-458 (private postage meter postmark on envelope
                              - 8 -


bearing a petition was treated as a nullity where the petition

was delivered to the Court more than a week before the date of

the postmark).

     Petitioner cites Anderson v. Commissioner, 966 F.2d 487 (9th

Cir. 1992), for the proposition that she has offered sufficient

evidence to invoke the common-law “mailbox” rule.   Petitioner’s

reliance on Anderson v. Commissioner, supra, and the mailbox rule

is misplaced.

     The question presented in Anderson v. Commissioner, supra,

was whether the taxpayer would be permitted to present extrinsic

evidence of the date of mailing of a tax return where the

Commissioner had no record of having received the return.   Under

the facts presented in that case, the Court of Appeals for the

Ninth Circuit (1) rejected the Commissioner’s argument that

section 7502 presented the sole means for the taxpayer to prove

the date of mailing of the missing tax return, and (2) allowed

the taxpayer’s extrinsic evidence.    After sustaining the district

court’s holding that the taxpayer had established the date of

mailing, the Court of Appeals went on to sustain the District

Court’s holding that the taxpayer could rely on the rebuttable

presumption under the common law mailbox rule that a document

properly and timely mailed is received by the addressee.

     Contrary to petitioner’s position, Anderson v. Commissioner,

supra, does not stand for the broader proposition that a taxpayer
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may offer extrinsic evidence to rebut the date of a postmark

affixed to an envelope bearing a petition filed with the Court.

Indeed, in the course of its analysis, the Court of Appeals in

Anderson v. Commissioner, supra, acknowledged its earlier holding

in Shipley v. Commissioner, supra, that, in the absence of a

receipt for certified mail, the taxpayer was precluded under

section 7502 from introducing extrinsic evidence to prove that

the postmark date affixed to the envelope bearing a petition

filed with the Court was incorrect.

     Although the circumstances leading to the late filed

petition in this case are unfortunate, we note that the mailing

of the petition on the 90th day raised “the spectre of possible

timeliness problems” requiring a heightened degree of care in the

mailing process.   See Drake v. Commissioner, supra at 739.

Moreover, although we lack jurisdiction in this case, petitioner

is not without a remedy.   In short, petitioner 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 id. at 739; McCormick

v. Commissioner, 55 T.C. 138, 142 (1970).   Consistent with the

preceding discussion, we shall grant respondent's Motion to

Dismiss for Lack of Jurisdiction.
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To give effect to the foregoing,



                              An order of dismissal for

                         lack of jurisdiction will be

                         entered.
