                        T.C. Memo. 2009-241



                      UNITED STATES TAX COURT



          DEARON AND ROCHELLE L. MADDOX, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1809-09.                 Filed October 26, 2009.




     Allan C. Miles, for petitioners.

     Matthew A. Williams, for respondent.



                        MEMORANDUM OPINION


     GERBER, Judge:   Respondent moved to dismiss this case on the

ground that the petition was not filed within 90 days of the

mailing of the notice of deficiency.    Petitioners counter that

the petition was timely mailed even though not received by the

Court within the 90-day period.   We must decide whether the

petition was timely mailed.
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     All section references are to the Internal Revenue Code, and

all Rule references are to the Tax Court Rules of Practice and

Procedure, unless otherwise indicated.

                              Background

     Respondent, on October 7, 2008, mailed a notice of

deficiency to petitioners for tax years 2005, 2006, and 2007.     A

petition signed by petitioners’ attorney, Allan C. Miles

(Attorney Miles), and dated December 17, 2008, was received and

filed by this Court on January 23, 2009, which was 108 days after

the mailing of the notice of deficiency.     The envelope in which

the petition was received was properly addressed to this Court

and had sufficient postage.    The   U.S. Postal Service (USPS)

cancellation stamps appear on the envelope, but the exact date of

cancellation is illegible.    January 5, 2009, was the 90th day

after the mailing of the notice of deficiency.     On March 11,

2009, respondent’s motion to dismiss for lack of jurisdiction was

filed.

     Attorney Miles “mailed” the petition by placing it in the

mailroom in his office building before 4 p.m. on Friday, January

2, 2009.    The mailroom was locked, and only building tenants and

the USPS had access.   The outgoing mail was placed in a USPS

basket.    Each weekday, Monday through Friday, the USPS

would pick up the mail at approximately 4 p.m.     On Saturdays the

pickup was at approximately 12 p.m.
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                            Discussion

     A Tax Court petition must be filed within 90 days after the

notice of deficiency is mailed.    Sec. 6213(a).   In this case the

90th day fell on January 5, 2009.    If a petition is received by

the Court after the 90-day period, then the postmark date, if

timely, can be deemed the date of delivery.    Sec. 7502.

Normally, the postmark placed on the envelope in which the

petition has been mailed is accepted as evidence of timely

mailing and hence timely filing.    In this case, however, the

postmark is illegible, and accordingly, petitioners have the

burden of proving that their petition was mailed on or before

January 5, 2009.   See sec. 301.7502-1(c)(1)(iii)(A), Proced. &

Admin. Regs.

     This Court’s jurisdiction to redetermine a deficiency

depends on the issuance of a valid notice of deficiency and a

timely filed petition.   Rule 13(a), (c); Levitt v. Commissioner,

97 T.C. 437, 441 (1991).   Section 6213(a) provides that a

petition for redetermination of a deficiency determined by the

Commissioner is timely filed if it is filed within 90 days after

a notice of deficiency is mailed (or 150 days if the notice is

mailed to a taxpayer outside the United States).    Petitioners’

petition was received by the Court on January 23, 2009.     The 90-

day period had expired on January 5, 2009.    A petition received
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and filed by the Court after the expiration of the 90-day period

may be deemed timely filed if it was timely mailed.

     The general rule is that the date of a USPS postmark, if

within the 90-day period, is deemed to be the delivery date.

Sec. 7502(a).   For this general rule to apply, however, a

taxpayer must have mailed the document at issue in a properly

addressed envelope, postage prepaid, and postmarked by the USPS

within the prescribed period or on or before the last date for

the filing, including any extensions granted for filing.     See

sec. 301.7502-1(c)(1), Proced. & Admin. Regs.

     The Court did not receive the envelope in which the petition

was mailed until 18 days after the expiration of the 90-day

period for filing.   Because petitioners’ petition was received

and filed outside the prescribed period, bearing an illegible

USPS postmark, it will be deemed timely filed only if petitioners

can show the date that the postmark was made and that the date

was within the 90-day period.

     It is well established in this Court that a taxpayer may

establish the date of mailing a petition if the postmark date is

illegible or missing.   Mason v. Commissioner, 68 T.C. 354 (1977);

Sylvan v. Commissioner, 65 T.C. 548 (1975).     Extrinsic evidence

may be used to prove timely mailing of a document.

     Petitioners have shown by credible testimony that the

envelope containing the petition was placed in the USPS mail
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before the expiration of the 90-day period.       They have also shown

that the envelope was postage prepaid and had a USPS

cancellation.   The record also reveals that the envelope was

received by the Court and that the petition was filed.

Accordingly, petitioners have shown that the petition was timely

placed in the USPS mail and timely postmarked (albeit illegibly).

See Mason v. Commissioner, supra at 356-357.

     Respondent attempted to offer an affidavit of a USPS

employee that purported to explain “normal” delivery times for

USPS mail.   The Court sustained petitioners’ objection to the

affidavit on hearsay grounds and because petitioners would not be

able to cross-examine the affiant.       Accordingly, we conclude that

the petition was timely postmarked and timely mailed and, hence,

timely filed.

     To reflect the foregoing,


                                         An order will be issued

                                 denying respondent’s motion to

                                 dismiss for lack of jurisdiction.
