                  T.C. Memo. 2001-27



                UNITED STATES TAX COURT



   ESTATE OF MARGUERITE M. CRANOR, DECEASED, JOHN R.
 PHILLIPS, JR., ADMINISTRATOR AD LITEM, Petitioner v.
      COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 15171-99.                   Filed February 8, 2001.


     P’s counsel deposited an envelope containing P’s
petition with FedEx on the 87th day after R mailed the
notice of deficiency. The envelope bore the correct
name, address, and ZIP code for this Court. FedEx held
the envelope at a FedEx office rather than delivering
it and later returned it to the sender. P’s counsel
re-sent the petition with FedEx, and the petition was
delivered to the Court on the 101st day after the
notice of deficiency was sent. R filed a motion to
dismiss for lack of jurisdiction.

     1.   Held, the envelope was properly addressed as
required by sec. 7502(a)(2)(B), I.R.C.

     2.   Held, further, P’s petition was timely filed
because it was timely sent. See sec. 7502(a), (f),
I.R.C. Thus, we will deny R’s motion to dismiss for
lack of jurisdiction.
                                 - 2 -

       Winston S. Evans and J. Allen Reynolds III, for petitioner.

       Robert B. Nadler, for respondent.



                          MEMORANDUM OPINION


       COLVIN, Judge:   This case is before the Court on

respondent’s motion to dismiss for lack of jurisdiction on the

ground that the petition was not filed within the time prescribed

by section 6213(a) or section 7502.      We hold that the petition

was timely filed because it was timely sent.      See sec. 7502(a),

(f).    Thus, we will deny respondent’s motion.

       Section references are to the Internal Revenue Code in

effect for 1999.

                              Background

A.     Petitioner and the Notice of Deficiency

       John R. Phillips, Jr., is the administrator ad litem of the

Estate of Marguerite M. Cranor, Deceased (decedent).       Decedent

died a resident of Tennessee, and her will was probated in

Tennessee.    The administrator ad litem lived in Gallatin,

Tennessee, when the petition was filed.

       On June 8, 1999, respondent sent a notice of deficiency by

certified mail to petitioner in which respondent determined an

estate tax deficiency of $317,280.       The 90th day after the notice

of deficiency was issued was September 6, 1999, which was a legal

holiday (Labor Day) in the District of Columbia.      Therefore,
                               - 3 -

September 7, 1999, was the last date for petitioner to timely

file a petition in the Tax Court.   See sec. 6213(a).

B.   The Envelope Sent on September 3, 1999

     On Friday, September 3, 1999, petitioner’s attorney, J.

Allen Reynolds III (Reynolds), and his secretary, Brenda Brown

(Brown), prepared an airbill that Reynolds attached to a Federal

Express Co., Inc. (FedEx)1 envelope containing the petition at

issue in this case.   An airbill is the standard multipart form

completed by persons sending items via FedEx within the United

States.   Reynolds addressed the airbill to:   “Clerk, United State

[sic] Tax Court, 400 Second Street, NW, Washington, D.C. 20217".

That is substantially the correct name and is the correct street

address, city, and ZIP code for this Court.

     Reynolds and Brown marked the boxes on the airbill “FedEx

Standard Overnight - Next Business Afternoon” and “Hold

Saturday”.   The “Hold Saturday” box is under the heading “For

HOLD at FedEx Location check here”.    Reynolds believed that,

because he checked “FedEx Standard Overnight – Next Business

Afternoon” and “Hold Saturday”, FedEx would not deliver it to the

Tax Court on Saturday, September 4, 1999, but would deliver it on

Tuesday, September 7, 1999.   Reynolds deposited the envelope

     1
        FedEx is a private delivery service for purposes of sec.
7502(f) with respect to its FedEx Standard Overnight and FedEx
Priority Overnight Service. See Notice 99-41, 1999-2 C.B. 325.
For simplicity, we assume that actions taken relating to
preparation of the airbill and the sending of the petition were
taken by J. Allen Reynolds III.
                                - 4 -

containing the petition with FedEx on Friday, September 3, 1999.

C.     FedEx Procedures for “Hold Saturday” Service

       FedEx offers standard overnight service and priority

overnight service.    Both of these services guarantee delivery the

next business day for items sent from Nashville to Washington,

D.C.

       According to terms stated on the back of the recipient’s

copy of the September 3 airbill, the sender (i.e., Reynolds)

agreed to be subject to the FedEx service guide.      The FedEx

service guide states that if a package is marked “Hold Saturday”,

FedEx will hold it for Saturday pickup by the recipient at a

FedEx location specified by the sender.

       Reynolds addressed the September 3 airbill to the Tax Court;

he did not specify a FedEx office to hold the item.      The FedEx

service guide states that a sender who wants a package to be held

for pickup must write on the airbill the address of the FedEx

location where the package is to be held.    The airbill attached

to the September 3 envelope states below the lines on which the

sender writes the address of the recipient:    “(To ‘HOLD’ at FedEx

location, print FedEx address here)”.    Even though Reynolds used

the Tax Court address (instead of a FedEx location), FedEx

treated the envelope petitioner sent on September 3 as a “hold at

location” shipment and did not deliver it.

       The FedEx service guide states that Saturday “hold at

location” service is not available for items sent by standard
                               - 5 -

overnight service.   Reynolds marked the September 3 envelope for

standard overnight service.   An employee of FedEx changed the

September 3 airbill to designate priority overnight service and

thus make it eligible for Saturday hold at location service.

     The FedEx service guide states that FedEx employees should

make a reasonable attempt to notify the recipient of a hold at

location shipment that FedEx is holding a package.   If they

cannot contact the recipient, they should then try to notify the

sender.   FedEx did not tell the Tax Court or Reynolds that it was

holding the September 3 envelope.

     If a package marked “Hold Saturday” does not contain the

address of the FedEx location where it is to be held for pick up

(as the September 3 envelope did not), FedEx internal operating

procedures (not contained in the FedEx service guide) require its

employees to write on the airbill the address of the FedEx office

closest to the address of the recipient.    FedEx did not write the

address of a FedEx office on the airbill.   FedEx internal

operating procedures also provide that if a hold at location

shipment is not picked up within 5 business days, the employees

of FedEx shall contact the sender for instructions on what to do

with the shipment.   Even though the September 3 envelope was not

picked up within 5 business days, FedEx did not call Reynolds or

any of his employees.

D.   The September 16, 1999, Envelope

     The following occurred on September 16, 1999:   (1) FedEx
                               - 6 -

returned the September 3 envelope to Reynolds; (2) Reynolds

removed the petition from the September 3 envelope and placed it

in a new FedEx envelope (the September 16 envelope).   Reynolds

also enclosed affidavits from Brown and himself; and (3) Reynolds

deposited the September 16 envelope with FedEx for delivery to

the Tax Court.

     FedEx delivered the September 16 envelope to the Tax Court

on September 17, 1999.

                            Discussion

     The issue raised by respondent’s motion to dismiss is

whether petitioner timely filed the petition.    Resolution of this

question depends on whether the envelope containing the petition

was properly addressed within the meaning of section

7502(a)(2)(B).   This is the first case in which we must decide

whether a petition sent to the Court by a private delivery

service under section 7502(f) was timely filed for purposes of

section 7502(a)(2)(B).

A.   Timely Mailing Is Timely Filing

     To maintain an action in this Court, a taxpayer must file a

timely petition.   See sec. 6213.   Failure to timely file prevents

this Court from acquiring jurisdiction.   See Estate of Cerrito v.

Commissioner, 73 T.C. 896, 898 (1980); Stone v. Commissioner, 73

T.C. 617, 618 (1980).

     A petition is timely if it is filed with the Court within 90

days after the notice of deficiency is mailed.   See sec. 6213(a).
                                 - 7 -

If a petition is filed after the expiration of the 90-day period,

it is nevertheless deemed to be timely filed if the date of the

U.S. postmark stamped on the envelope in which the petition was

mailed is within the time prescribed for filing, see sec.

7502(a)(1), (c)(2); sec. 301.7502-1, Proced. & Admin. Regs., and

if the envelope containing the petition is properly addressed and

bears the proper postage, see sec. 7502(a)(2)(B).    Section 7502

also applies if the taxpayer sends the petition using a private

delivery service designated by the Commissioner, such as FedEx.

See sec. 7502(f); Notice 99-41, 1999-2 C.B. 325.

B.   Analysis

     Reynolds deposited the envelope containing the petition with

FedEx on the 87th day after respondent mailed the notice of

deficiency.     The envelope bore the correct name, address, and ZIP

code for this Court.    FedEx held the envelope at a FedEx office

rather than delivering it and later returned it to the sender.

Petitioner’s counsel promptly re-sent the petition with FedEx,

and the petition was delivered to the Court on the 101st day

after the notice of deficiency was sent.

     1.   Petitioner’s Use of Two Envelopes

     We first consider whether the “timely mailing is timely

filing rule” does not apply because the petition was delivered to

the Court in an envelope mailed after the 90th day, and not in

the envelope mailed on September 3.

     Section 7502(a)(1) provides in pertinent part that “If any
                               - 8 -

* * * document required to be filed * * * on or before a

prescribed date * * * is, after * * * such date, delivered * * *

to the agency * * *, the date of the United States postmark

stamped on the cover in which such return * * * or other document

* * * is mailed shall be deemed to be the date of delivery”.

     Section 7502(a) requires that the envelope containing the

petition be timely mailed to the Court.   Petitioner met this

requirement because Reynolds timely sent the petition on

September 3.   Section 7502(a) provides that “the date of the

United States postmark stamped on the cover in which such return

* * * or other document * * * is mailed” (emphasis added) shall

be the date considered for purposes of the “timely mailing is

timely filing” rule.   Section 7502(a) does not provide that the

date of the U.S. postmark stamped on the cover in which the

return or other document is received controls.   Thus, section

7502(a) does not require that the qualifying envelope (i.e., the

envelope which was timely mailed, properly addressed, and bore

the proper postage) be the envelope in which the petition is

received; nor does section 7502(a) bar application of the “timely

mailing is timely filing” rule if a petition contained in a

properly addressed envelope (that otherwise meets the above

requirements) is returned to, and remailed by, the taxpayer.

     The petition in the instant case was mailed in two

envelopes:   One on September 3 and one on September 16.   It is

clear that, for purposes of section 7502(a), the envelope in
                                - 9 -

which the petition “is mailed” refers to the September 3

envelope, not the September 16 envelope.   Surely a taxpayer would

not prevail if the timely mailed envelope did not bear the

correct postage but the second, untimely envelope did.      For

petitioner to qualify under section 7502(a), the September 3

envelope must have been timely sent, been properly addressed, and

borne the correct postage.   That is, the envelope must have

complied with the requirements of section 7502(a).   The September

3 envelope meets these requirements.

     This reading of section 7502 is consistent with Price v.

Commissioner, 76 T.C. 389, 391, 394 (1981).   In Price, the

petition contained in a timely mailed envelope was returned to

the taxpayer, who remailed it in an outer envelope after the 90-

day period.   See id.   We held that the inner envelope, postmarked

by the Postal Service within the prescribed period but containing

an incorrect ZIP code, was properly addressed.   See id.2    The

original envelope in Price was mailed by certified mail.

However, that fact is irrelevant here because the certified mail

exception of section 7502(c)(2) establishes only that an envelope




     2
      But cf. Cho v. Commissioner, T.C. Memo. 1992-5, which
concluded that an original envelope that was returned to the
taxpayer for insufficient postage and then remailed to the Court
in another envelope was not “delivered” to the Court for purposes
of sec. 7502. The facts of Cho are distinguishable from those of
the instant case in that the original envelope in Cho did not
meet the prepaid postage requirement of sec. 7502(a)(2).
                                - 10 -

has been timely mailed, a fact which is not in dispute in the

instant case.

     2.   Whether the September 3 Envelope Was Properly Addressed

     Respondent contends that the envelope containing the

petition was not properly addressed within the meaning of section

7502(a)(2)(B) because the September 3 airbill was marked “Hold

Saturday”.    Respondent points out that language on the back of

the recipient’s copy of the September 3 airbill states that the

sender is responsible for correctly preparing the airbill.

Respondent also contends that Reynolds’ failure to correctly

complete the airbill caused the petition to be filed late.

     The FedEx airbill attached to the September 3 envelope

containing the petition bore the correct name, address, and ZIP

code of the Tax Court.     Reynolds paid the applicable FedEx

charges, and he deposited the envelope with FedEx on September 3,

1999, 4 days before the last day for doing so.     He incorrectly

checked the “Hold Saturday” box, but the “Hold Saturday” box was

not part of the address of this Court.     An address for purposes

of section 7502(a)(2)(B) is the location to which the petition is

to be delivered.     It is well established that we give a statutory

term its common and ordinary meaning unless persuasive evidence

or context indicates otherwise.     See Commissioner v. Soliman, 506

U.S. 168, 174 (1993); Commissioner v. Brown, 380 U.S. 563, 570-

572 (1965).     The term “address” has been generally defined to

mean the designation of the place or location at which a person
                              - 11 -

or organization may be reached.   See American Heritage Dictionary

20 (2000).   Applying the common meaning of the term “address” to

the facts of this case, we conclude that the “Hold Saturday” box

on the FedEx airbill was not part of the address of this Court.

     Respondent relies on cases in which we held that envelopes

were not properly addressed which were addressed to courts other

than the Tax Court, to the wrong street address and wrong city,

or to a box number and ZIP code which had been changed.   See,

e.g., Estate of Cerrito v. Commissioner, 73 T.C. 896 (1980); C.

Frederick Brave, Inc. v. Commissioner, 65 T.C. 1001 (1976);

Hoffman v. Commissioner, 63 T.C. 638 (1975); Axe v. Commissioner,

58 T.C. 256 (1972); Lurkins v. Commissioner, 49 T.C. 452 (1968).

Respondent’s reliance on these cases is misplaced because the

envelope containing the petition in this case was properly

addressed to the Tax Court.

     The fact that Reynolds checked “FedEx Standard Overnight -

Next Business Afternoon” and that he did not list an address of a

FedEx office to hold the envelope shows that Reynolds intended

that FedEx promptly deliver the envelope to the Tax Court.    It is

true that Reynolds misunderstood the meaning of “Hold Saturday”

on the airbill.   However, we do not believe that his checking the

“Hold Saturday” box or any of the events occurring after Reynolds

deposited the September 3 envelope with FedEx, including his

prompt remailing in a new envelope of the petition to this Court

on September 16, 1999, prevent application of the familiar
                             - 12 -

“timely mailing is timely filing” rule here.    See sec. 7502(a),

(f); see also Price v. Commissioner, supra at 390, 393-394 (the

petition was timely filed where the original envelope in which it

was sent by certified mail was returned as undeliverable to the

sender, who re-sent it in a second envelope).   Instead,

consistent with Price v. Commissioner, supra at 394, we find that

the September 3 envelope, deposited with FedEx within the 90-day

period, was properly addressed.

     We conclude that the petition was timely sent and thus

timely filed, and respondent’s motion will be denied.


                                        An appropriate order

                                   will be issued.
