                          T.C. Memo. 1996-478



                        UNITED STATES TAX COURT



    ESTATE OF ANTONINO CAMPILONGO, DECEASED, RAFELINA MAGLIO,
                     EXECUTRIX, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6122-95.                        Filed October 23, 1996.



     Stephen C. Ryan and Andrew H. Wilson, for petitioner.

     Cynthia K. Hustad and Elaine L. Sierra, for respondent.



                          MEMORANDUM OPINION


     JACOBS,   Judge:      This   matter   is    before     the   Court   on

respondent's   motion    to   dismiss   for     lack   of    jurisdiction.

Respondent contends that the petition was not filed within the 90-
                                 -2-

day period prescribed by section 6213(a).1

     Respondent determined a deficiency in petitioner's Federal

estate tax of $108,648.89 and an addition to tax under section

6651(a) of $61,664.44.     Antonino Campilongo died on January 29,

1990, while a resident of California.    Rafelina Maglio, Antonino's

sister, is the executrix of her brother's estate; she was a

resident of California on the date the petition was filed. The

statutory notice of deficiency was mailed to Rafelina Maglio, as

executrix of the Estate of Antonino Campilongo, on January 19,

1995.     The 90-day period provided by section 6213(a) for filing a

petition with this Court expired on Wednesday, April 19, 1995,

which was not a legal holiday in the District of Columbia.

        The postage on the envelope containing the petition was made

by private postage meter and is dated April 21, 1995.   The petition

was received by the Court's mailroom on April 24, 1995, and was

filed on that date.

        Petitioner acknowledges that the envelope in which the Court

received the petition bears a legible postmark date which is

outside the 90-day period prescribed by section 6213(a).        But

petitioner claims:

     1)     The petition was originally mailed on April 18, 1995, by

certified mail, return receipt requested;


     1
          All section references are to the Internal Revenue
Code, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                                          -3-

     2)     an employee of petitioner's counsel's law firm affixed a

postage meter label to the envelope in which the petition was

placed; and

     3)     the    postage        meter   label    affixed      to     the   envelope

containing the petition apparently became unattached in transit,

causing the post office to return the envelope to petitioner's

counsel's   law    firm      on   April   21,    1995,   stamped     "Returned     for

Postage".

     Petitioner wishes to introduce extrinsic evidence to support

its claims.       Respondent contends that extrinsic evidence may not

properly be considered when it would contradict a legible postmark

on the envelope containing the petition.

     In general, to be timely, a petition for redetermination of a

deficiency must be filed with this Court within 90 days after the

notice of deficiency is mailed.                 Sec. 6213(a). The Court lacks

jurisdiction      if   the    petition    is    untimely      filed.    Pietanza    v.

Commissioner, 92 T.C. 729, 735 (1989), affd. without published

opinion 935 F.2d 1282 (3d Cir. 1991).                  If a petition is received

after the 90-day period, it will be deemed filed on the date of the

United States postmark stamped on the envelope if the requirements

of section 7502 are satisfied.

     Section 7502 does not apply unless a petition is timely

deposited   in     the   United     States      mail   with   sufficient      postage

prepaid.    Sec. 7502(a)(2); sec. 301.7502-1(c)(1)(ii), Proced. &

Admin. Regs.      When a private postage meter is used, the postmark
                                    -4-

date must be within the prescribed period for filing, and the

document must be received by the addressee within the normal

delivery period for an envelope postmarked by the United States

Post   Office   at   the   same   point    of   origin.      Sec.   301.7502-

1(c)(1)(iii)(B), Proced. & Admin. Regs.           If a document is sent by

certified mail and the sender's receipt is postmarked by a postal

employee, the date on the receipt is treated as the postmark date

of the document.     Sec. 301.7502-1(c)(2), Proced. & Admin. Regs.

       As previously stated, the requirements of section 7502 and the

regulations must be satisfied in order to treat a petition as

timely filed when it reaches this Court by mail after the period

prescribed by section 6213(a).       One of these requirements is that

a private postage meter postmark must bear a legible date that is

on or before the last date prescribed for filing the document. Sec.

301.7502-1(c)(1)(iii)(B), Proced. & Admin. Regs. In this case, the

April 21, 1995, postmark on petitioner's envelope is beyond the

required 90-day period for filing.

       The envelope containing the petition must be timely mailed

with sufficient postage prepaid.          Sec. 7502(a)(2); sec. 301.7502-

1(c)(1)(ii), Proced. & Admin. Regs.             Although petitioner claims

that this requirement was met, a U.S. Postal Service stamp on the

envelope indicates that it was returned for postage.            We shall not

speculate about whether proper postage was affixed to the envelope

when   originally    mailed,   or   whether     any   such   postage   became

unattached before or after the envelope was deposited in the mail.
                                        -5-

A second mailing of the petition bears a private postmeter date of

April 21, 1995.

     In Wiese v Commissioner, 70 T.C. 712 (1978), the taxpayer

claimed    that   the   date   on   a       private   postage   meter   was   set

incorrectly, resulting in an untimely postmark that was 1 day later

than the actual date that the petition was mailed. The taxpayer

therein attempted to introduce extrinsic evidence to support his

claim. In declining to receive the taxpayer's proffer of extrinsic

evidence, we stated:

     The general scheme of section 7502 and implementing
     regulations is designed to avoid testimony as to date of
     mailing in favor of tangible evidence in the form of an
     official Government notation. As such, when a legible
     Postal Service postmark appears on an envelope, no
     evidence that the petition was mailed on some other day
     will be allowed. Shipley v. Commissioner, 572 F.2d 212,
     214 (9th Cir. 1977), affg. a Memorandum Opinion of this
     Court; Sylvan v. Commissioner, 65 T.C. 548, 552 (1975);
     sec. 301.7502-1(c)(1)(iii)(a), Proced. & Admin. Regs.

          Where non-Postal Service postmarks are used, the
     statute does permit extrinsic evidence other than the
     tangible evidence of the postmark. In such cases, the
     regulations require the timely private postage meter
     postmark date to be independently corroborated by facts
     beyond the taxpayer's control. * * * But the statute and
     regulations clearly contemplate presentation of such
     extrinsic evidence only when the private postage meter
     postmark reflects a date on or before the 90th day after
     mailing the notice of deficiency.

       *          *        *            *         *        *        *

     we believe our position maintains the obvious parity
     sought by Congress between private postage meter and
     Postal Service postmarks--that both be made on or before
     the 90th day.    We noted that where a legible Postal
     Service postmark reflected a date after the 90th day, no
     evidence could be presented to contradict it. We see no
     reason why a taxpayer who has independent control over
                                        -6-

     his postmark should fare any better, especially when the
     regulations require both postmarks to be made on or
     before the 90th day. * * *

Wiese v. Commissioner, supra at 714-715; see also Kahle v.

Commissioner, 88 T.C. 1063 (1987) (petition postmarked on 91st day

was untimely whether postmark made by private meter or U.S. Postal

Service;   postmark   date      conclusive      and   extrinsic     evidence    not

admissible to contradict it).

     In    the   instant    case,      the    April   21,   1995,    postmark   on

petitioner's envelope is conclusive.              Petitioner's claimed prior

attempt to mail the petition was unsuccessful and did not result in

the filing of the petition.         Evidence of such attempted mailing is

inadmissible under Wiese and Kahle.

     Petitioner relies on Sylvan v. Commissioner, 65 T.C. 548

(1975), in which we considered extrinsic evidence of the date of

mailing when the Post Office failed to postmark the envelope

containing taxpayer's petition.              In that case, the envelope had

sufficient postage.    It reached the Court within the normal period

following a timely mailing.            The Court drew an analogy to cases

where the postmark on the envelope is illegible.                  See   sec. 301-

7502-1(c)(iii)(A).         In   this    case,    petitioner's       prior   claimed

mailing did not reach the Court and was returned for postage.

Unlike Sylvan, the subsequent mailing bore a legible private

postmeter date beyond the 90-day period for filing.                     Sylvan is

therefore distinguishable on its facts.

     Petitioner could have obtained a United States postmark on a
                                 -7-

certified mail receipt, but did not do so.               Such postmark is

treated as the postmark date of the document, at least in cases

where the envelope reaches its destination.          See sec. 301.7502-

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

     While we are sympathetic with petitioner's plight, because the

petition was filed outside the 90-day period prescribed by section

6213(a),   we   lack   jurisdiction    to    hear   petitioner's      case.

Consequently,   respondent's    motion      to   dismiss    for    lack   of

jurisdiction will be granted.    Petitioner, however, is not without

a judicial remedy.     Petitioner may pay the tax, file a claim for

refund with the Internal Revenue Service, and if the refund claim

is denied, sue for a refund in the appropriate Federal District

Court or the United States Court of Federal Claims.

     To reflect the foregoing,


                                                    An     order   granting

                                       respondent's      motion    will   be

                                       entered.
