                        T.C. Memo. 2001-102



                      UNITED STATES TAX COURT



                IRVIN KIRSCHENBAUM, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10133-00.                     Filed April 26, 2001.


     Marc C. Rosenberg, for petitioner.

     Jack H. Klinghoffer, for respondent.


                        MEMORANDUM OPINION

     DAWSON, Judge:   This case was assigned to Special Trial

Judge Stanley J. Goldberg, pursuant to Rules 180, 181, and 183.

Unless otherwise indicated, section references are to the

Internal Revenue Code, and Rule references are to the Tax Court

Rules of Practice and Procedure.   The Court agrees with and

adopts the opinion of the Special Trial Judge, which is set forth

below.
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                 OPINION OF THE SPECIAL TRIAL JUDGE

     GOLDBERG, Special Trial Judge:     This matter is before the

Court on respondent’s Motion to Dismiss for Lack of Jurisdiction.

Respondent moved for dismissal on the ground that the petition

was not filed within the time period prescribed in section

6213(a) or section 7502.   Petitioner, in his objection to

respondent’s motion, contends that the petition was deposited in

the mail before the expiration of the 90-day period for filing.1

A hearing was held on the motion in Los Angeles, California.

Petitioner resided in Beverly Hills, California, at the time the

petition was filed.

                             Background

     In a notice of deficiency dated June 20, 2000, and sent by

certified mail on that day, respondent determined a deficiency in

petitioner’s Federal income tax of $50,821 for the taxable year

1996.    There is no dispute that respondent mailed the notice of

deficiency to petitioner’s last known address.    The 90-day period

for filing a petition with this Court expired on Monday,

September 18, 2000, which was not a legal holiday in the District

of Columbia.




     1
          The notice of deficiency was addressed to Irvin
Kirschenbaum and Evelyn Kirschenbaum. However, Evelyn
Kirschenbaum did not sign the petition to the Tax Court and is
not a party in this case.
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     The petition was signed by petitioner’s attorney, Marc C.

Rosenberg (Mr. Rosenberg), on September 11, 2000.   The petition

was received and filed with this Court on September 28, 2000.

The envelope in which the petition arrived at the Court bears a

private postage-meter postmark that reads, in part, “Tarzana CA

Sep.15.00 POSTALIA 288967".2

     At the hearing on respondent’s motion, Mr. Rosenberg

testified that on Friday, September 15, 2000, he applied the

postage on the envelope addressed to the Tax Court.   Mr.

Rosenberg stated that he then dropped the petition into the

office building’s mail receptacle “in the evening” at the end of

the day, apparently after the last U.S. Postal Service pickup at

4 p.m.   It is unclear whether the U.S. Postal Service picked up

the mail from his office building on Saturday, the following day.

There is no Sunday pickup.

     Mr. Rosenberg used a Francotyp-Postalia, model T-1000 (T-

1000), postage meter to apply the postage and date on the

envelope addressed to this Court.   Although the T-1000

automatically sets the date and time for postal metering, the

operators manual provides simple step-by-step instructions under

the heading “To Change the Date Manually” to override its

automatic internal clock.    The T-1000 does not have any internal


     2
          POSTALIA refers to a private postage meter,
specifically known as Francotyp-Postalia, model T-1000.
                                - 4 -


functions indicating whether the time or date had been altered

from its original setting.

     Respondent’s witness, William Pace (Mr. Pace) from the U.S.

Postal Service, testified that ordinary delivery of first class

mail from Tarzana, California, to Washington, D.C., is about 3

days.   Furthermore, about 89.7 percent of first class mail sent

from Tarzana, California, to Washington, D.C., is delivered

within 3 days.    The percentage increases to about 97 to 98

percent of such mail being delivered within 4 days, and nearly

100 percent delivered within 5 days.      Mr. Pace’s testimony is

based on monthly statistics maintained by the U.S. Postal

Service.    According to the records maintained by the

Transportation and Network Division of the Santa Clarita

Processing and Distribution Center of the Postal Service, no

special circumstances existed during the period of September 15

through 28, 2000, that would explain the delay in delivery of the

petition.

                             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).
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     Section 6212(a) authorizes the Secretary, upon determining

that there is a deficiency in income tax, to send a notice of

deficiency to the taxpayer by certified or registered mail.

Ordinarily, a petition for redetermination of a deficiency must

be filed with this Court within 90 days from the mailing of the

notice of deficiency.   See sec. 6213(a).   The time provided for

the filing of a petition with this Court is jurisdictional and

cannot be extended.   Failure to file within the prescribed period

requires that the petition be dismissed for lack of jurisdiction.

See Estate of Rosenberg v. Commissioner, 73 T.C. 1014, 1016-1017

(1980).

     The 90-day period for filing a timely petition with this

Court expired on Monday, September 18, 2000.   The petition was

filed with the Court on Thursday, September 28, 2000, which is

100 days after the mailing of the notice of deficiency.

     Although the petition was received on the 100th day after

the mailing of the notice of deficiency, petitioner contends that

the petition was timely mailed to the Court on Friday, September

15, 2000, the 87th day after the mailing of the notice of

deficiency.   Petitioner also contends that even if the mail was

not picked up until Monday, September 18, 2000, the 90th day

after the mailing of the notice of deficiency, the petition was,

nevertheless, mailed within the prescribed time period.
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     Section 7502 and the regulations thereunder provide that, in

certain circumstances, a timely mailed petition will be treated

as though it were timely filed.    See sec. 7502; sec. 301.7502-

1(c)(1)(iii)(a), Proced. & Admin. Regs.    However, where the

postmark in question is made by a private postage meter, as in

this case, section 301.7502-1(c)(1)(iii)(b), Proced. & Admin.

Regs., provides the following:

     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. * * *

     Although petitioner argues that “normal” delay in the

transmission of the mail occurred, he failed to establish what
                                - 7 -


constituted “normal” delay in his case and the cause of such

delay.    Petitioner’s belief that error in the transmission of

mail caused the petition to arrive on the 100th day--13 days

after the petition was allegedly mailed-–is unfounded.    He is

essentially claiming, on the basis of “chance”, and without

evidentiary support, that compounded human errors, including mail

lodged in mail boxes or drop slots and accidental mailing to

Washington State, may have delayed the receipt of his petition by

this Court by 10 days beyond its ordinary delivery time.

Petitioner’s argument, without corroboration, is mere conjecture

and does not meet the criteria established in section 7502 and

its regulations.    See sec. 301.7502-1(c)(1)(iii)(b), Proced. &

Admin. Regs.

       In the alternative, Mr. Rosenberg argues that because he did

not know that the date could be altered on the T-1000 or how to

alter the date on the T-1000 at the time of the mailing, then he

could not have altered the postage date on the envelope of the

petition; thus, “it was as good as a date stamp at the U.S. Post

Office or by certified mail.”    This argument has no basis in the

law.    The regulations state the specific criteria that must be

met if a taxpayer does not use a U.S. Postal Service postmark,

and instead chooses to use a private postage meter postmark to

mail and file time-sensitive documents with the Court.
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     The petition was received by the Court after the expiration

of the 90-day filing period, and petitioner has failed to meet

the criteria stated in the regulations to prove a timely filing.

Accordingly, we hold that this case must be dismissed for lack of

jurisdiction on the ground that the petition was not timely

filed.   Petitioner could have avoided such a result if the

envelope containing the petition had been mailed by registered or

certified mail and postmarked by the U.S. Postal Service on or

before September 18, 2000.   See sec. 7502(a), (c); sec. 301.7502-

1(c)(2), Proced. & Admin. Regs.

      To reflect the foregoing,

                                            An order and order of

                                       dismissal for lack of

                                       jurisdiction will be entered.
