Cespedes v. Commissioner

Luis and Reina Cespedes, Petitioners, v. Commissioner of Internal Revenue, Respondent Cespedes v. Commissioner Docket No. 81413 United States Tax Court 33 T.C. 214; 1959 U.S. Tax Ct. LEXIS 44; November 6, 1959, Filed *44 Jurisdiction -- Filing Date of Petition -- Postmark -- Sec. 7502. -- Section 7502, I.R.C. 1954, provides that the mailing date is the date of filing of a petition if the cover in which the petition is mailed to the Court bears a United States postmark date within the prescribed period, but it does not cover a situation such as the present where the only postmark on the cover was that of a foreign country. Andrew S. Coxe, Esq., for the respondent. Murdock, Judge. MURDOCK *214 OPINION. The Commissioner moved to dismiss this case for lack of jurisdiction. The parties were given an opportunity to be heard on *45 that motion but there was no appearance for the petitioners. The notice of deficiency was mailed to the taxpayers by registered mail on January 29, 1959, to their last known address, which was in Miami, Florida. The envelope in which the petition was mailed to the Court was mailed from Habana, Cuba. It bears a Cuban postal cancellation stamp with the date June 29, 1959, but no other postmark. The petition was received by the Tax Court and filed on June 30, 1959, which was a Tuesday and not a holiday in the District of Columbia. That was 152 days after the mailing of the notice of deficiency. The 150th day was June 28, which was a Sunday. Section 7502 of the Internal Revenue Code of 1954 provides that if a petition is received by the Tax Court after the expiration of the prescribed period "the date of the United States postmark stamped on the cover in which * * * [the petition] is mailed shall be deemed to be the date of delivery" if the postmark date is within the prescribed period. The Commissioner seems to concede that the prescribed period applicable in this case is 150 days although a notice was not "addressed to a person outside the States of the Union and the District *46 of Columbia." See sec. 6213. He argues that even under the 150-day prescribed period the petition was not timely filed and therefore the Tax Court has no jurisdiction. The Commissioner's contention is correct. The petition was not delivered to the Tax Court within the prescribed period of 150 days but was delivered on the 152d day following the 151st day which was not a holiday in the District of Columbia. There is no "United States postmark stamped on the cover" in which the petition was mailed. The mailing of the petition to the Tax Court does not come within any exception to the prescribed period provided in section 6213 of the Internal Revenue Code of 1954. Luther A. *215 , 28 T.C. 1301. An order has been entered granting the Commissioner's motion and dismissing the case for lack of jurisdiction.