1983 Tax Ct. Memo LEXIS 633 | Tax Ct. | 1983
MEMORANDUM OPINION
NIMS,
On June 15, 1981, respondet mailed a notice of deficiency to petitioner at its last known address: 846 No. Cahuenga Blvd., Hollywood, California 90028. Petitioner's principal place of business1983 Tax Ct. Memo LEXIS 633">*635 was within the Los Angeles District of the Internal Revenue Service at the time it filed its petition.
The 90th day after the mailing of the statutory notice of deficiency was Sunday, September 13, 1981. Monday, September 14, 1981, was not a legal holiday in the District of Columbia.
On September 25, 1981, an envelope was received at the Tax Court containing both the petition in this case and the petitions is docket Nos. 24599-81 and 24601-81. The Court processed the petitions and filed them.
Arthur S. Kahn prepared and typed the three petitions and the envelope containing them. He sent the envelope by first class mail and affixed to it a private postage meter stamp dated September 14, 1981. He addressed the envelope to:
UNITED STATES TAX COURT P.O. BOX 70, WASHINGTON, D.C. 20044
When it arrived at the Tax Court, the Post Office box number and ZIP Code had been crossed out on the envelope's address label and the ZIP Code "20217" had been written in over the address label in ink. Neither Kahn nor any of the petitioners had made these alterations in the original address.
According to a United States Postal Service sampling of 1,209 pieces of mail sent from the Los1983 Tax Ct. Memo LEXIS 633">*636 Angeles area to the Washington, D.C., area from September 5, 1981, to October 2, 1981, first class mail bearing readable United States postmarks was delivered 43 percent of the time in two days, 91 percent of the time in three days and 100 percent of the time in four days.
Section 6213(a) provides that a petition to the Tax Court is timely if it is filed within 90 days after the notice of deficiency is mailed to a petitioner inside the United States (not counting Saturday, Sunday or a legal holiday in the District of Columbia as the last day). This requirement is jurisdictional.
Section 7502 provides an exception to the requirement of actual filing within the period of section 6213(a) by in certain cases treating timely mailing as timely filing. A requirement for entitlement to the benefits of section 7502, though, is that the envelope containing the document be "properly addressed." Section 7502(a)(2)(B); section 301.7502-1(c)(1)(i), Proced. & Admin. Regs.;
Section 7502(b) authorizes the respondent to provide by regulation the extent to which mail bearing only a private postmark will be entitled to the benefits of the timely mailing as timely filing rules of section 7502. Under the promulgated regulations, 3 it is incumbent on a petitioner whose envelope bears a timely private postmark and which is received by the Court later than a date on which a properly addressed and mailed envelope would ordinarily arrive if mailed on the last day allowed in section 6213(a) to show three things to be entitled to the benefits of the timely mailing as timely filing provisions: first, actual timely mailing; second, that the delay in receipt was caused by a delay in the transmission of the mail; and third, the cause of such delay.
1983 Tax Ct. Memo LEXIS 633">*638 In the instant case, respondent argues that the petitioner is not entitled to the benefit of section 7502 for either of two reasons: First, he contends, the envelope containing the petition was not properly addressed. Second, he claims, the petition was received later than a letter mailed on September 14, 1981, would ordinarily be received and the petitioner has neither shown timely actual mailing nor the reason for any purported mail delay.
To the contrary, petitioner argues that the envelope containing the petition was sufficiently properly addressed within the meaning of section 7502, citing
Following the judicial principle that constitutional issues should be addressed only after all statutory grounds for decision are exhausted,
In
In
1983 Tax Ct. Memo LEXIS 633">*641 The instant case is clearly governed by
Petitioner argues that use of the old address was only a minor error, unlike an error in the ZIP Code which might send a petition to a different city such as occurred in
An envelope showing a proper street address for the Court and a minor error in the zip code is very likely to cause no delay in delivery of the document contained therein to the Court. The purpose of section 7502 is to avoid hardship for taxpayers where deliveries of their petitions are delayed through no fault of1983 Tax Ct. Memo LEXIS 633">*642 their own but rather because of improper functioning of the U.S. mail. See the discussion in
Here, petitioner's envelope neither carried a correct street address nor a correct ZIP Code. 5 Assuming without deciding that the envelope was mailed on the date shown on the private meter stamp, it took eleven days for the petition to arrive at the Court. It seems fairly obvious delivery took so long because the envelope first went to the wrong location where a Postal Service employee readdressed the envelope and sent it on to the correct location. The delay was caused by the fault of petitioner's address, not the Postal Service. And it is irrelevant for purposes of section 7502(a)(2) (B) that the envelope fortuitously arrived here after third parties intervened. See
We hold the envelope herein was not "properly addressed" within the meaning of section 7502. Accordingly, petitioner may not avail itself of the timely mailing as timely filing rules of that section. 6 Further, since the petition was received by the Tax Court beyond the period provided in section 6213(a), the petition was untimely and this Court lacks jurisdiction.
Footnotes
1. Unless otherwise indicated, all section references are to the Internal Revenue Code of 1954, as in effect during the year in issue. ↩
2. Respondent's motion to dismiss in docket No. 24599-81 was denied at the time of the hearing on the ground that the petitioners in that docket were outside of the United States at the time the deficiency notice was mailed and therefore had 150 days in which to file a petition under section 6213(a). See
(1977);Camous v. Commissioner, 67 T.C. 721">67 T.C. 721 (1960). The Tax Court received the petition in docket No. 24599-81 after the 90-day period had expired, but within the 150-day period.Estate of Krueger v. Commissioner, 33 T.C. 667">33 T.C. 667↩3. Section 301.7502-1(c)(1)(iii)(
b ), Proced. & Admin. Regs., provides in part:(
b ) 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. * * *4. See also
, involving a petition mailed to the old address subsequent to our opinion inBerry v. Commissioner, T.C. Memo 1981-106">T.C. Memo. 1981-106Minuto but prior to our opinion inCerrito and before a May 1, 1979, revision ofRule 10(e) of the Tax Court Rules of Practice and Procedure.↩ 5. In
(1981), we held that an envelope bearing an incorrect ZIP Code, but a proper street address, was properly addressed. This is not petitioner's situation, however.Price v. Commissioner, 76 T.C. 389">76 T.C. 389↩6. Holding as we do, we need not address petitioner's argument regarding the validity and constitutionality of section 301.7502-1(c)(1)(iii)(
b ), Proced. & Admin. Regs. We would point out, however, that that regulation was held valid in (9th Cir. 1977), affg. a Memorandum Opinion of this Court, andLindemood v. Commissioner, 566 F.2d 646">566 F.2d 646 (1969), affd. per curiamFishman v. Commissioner, 51 T.C. 869">51 T.C. 869420 F.2d 491">420 F.2d 491↩ (2nd Cir. 1970).