Anthony P. Skolski and Kathryne D. Skolski v. Commissioner of Internal Revenue, 351 F.2d 485, 3rd Cir. (1965)
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Scribd Government DocsAnthony P. Skolski and Kathryne D. Skolski v. Commissioner of Internal Revenue, 351 F.2d 485, 3rd Cir. (1965)
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Scribd Government Docs351 F.
2d 485
65-2 USTC P 9703
Anthony P. SKOLSKI and Kathryne D. Skolski, Petitioners,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15248.
United States Court of Appeals Third Circuit.
Argued Oct. 5, 1965.
Decided Oct. 22, 1965.
Ralph J. Kmiec, Camden, N.J. (Angelo D. Malandra, Camden, N.J., on the
brief), for petitioners.
Robert Waxman, Atty., Dept. of Justice, Tax Div., Washington, D.C.
(Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, David O. Walter,
Lucy R. Thornton, Attys., Dept. of Justice, Washington, D.C., on the
brief), for respondent.
Before BIGGS, Chief Judge, and MARIS and STALEY, Circuit Judges.
MARIS, Circuit Judge.
We are asked by the taxpayers in this case to review an order of the Tax Court
dismissing for lack of jurisdiction their petition for redetermination of
deficiencies in income tax and fraud penalties for the years 1952 through 1959.
The notice of the claimed tax deficiencies was sent by the Commissioner to the
taxpayers on March 26, 1964. Under Section 6213(a) of the Internal Revenue
Code of 1954, 26 U.S.C.A. 6213(a), 1 the taxpayers had 90 days thereafter
during which to file with the Tax Court their petition for redetermination of
these deficiencies. This period of 90 days ended on June 24, 1964. The
taxpayers forwarded a petition for redetermination to the Tax Court through the
United States mail which was received by the clerk of the court on June 26,
1964, two days after the epriod of 90 days had expired. The taxpayers assert,
however, that their petition was actually deposited in the United States mail in
Camden, New Jersey, on June 23, 1964, the 89th day, and that the petition
should have been held to have been timely filed in view of the provisions of
section 7502(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. 7502(a).2
2
Section 7502(a) was included in the Code to alleviate some of the hardships
resulting from a strict application of the rule of section 6213. Bloch v.
Commissioner, 9 Cir. 1958, 254 F.2d 277. Section 7502(a) provides that if a
document required to be filed within a prescribed time by the internal revenue
laws is after that time delivered by the United States mail to the office in which
it is required to be filed, the date of the United States postmark stamped on the
cover in which the document is mailed shall be deemed to be the date of
delivery, but only if the postmark date falls within the prescribed time and the
document was within the prescribed time deposited in the mail in an
appropriate wrapper, postage prepaid and properly addressed.
The Government's contention is that the date appearing on the postmark
stamped on the cover in which the petition was mailed is the significant date
under section 7502(a) rather than the date on which the petition was actually
deposited in the mail. It asserts that in this case the date on the postmark was
illegible and hence the taxpayers were not entitled to the benefit of section
7502(a). Agreeing with the Government's contention, the Tax Court dismissed
the petition as untimely filed. The Tax Court permitted the taxpayers to have
the postmark impression on the cover in which their petition was mailed
examined by a questioned document examiner of the Post Office Department in
the presence of a deputy clerk of the court. The examiner reported that his
examination revealed the month June (JE) followed by the figure 2, but that as
'evidenced by the presence of two small ink deposits after the '2', the possibility
cannot be eliminated that these could represent part of a second digit.' On the
basis of the examiner's report, the Tax Court found that the date on the
postmark was illegible, a finding which we cannot hold to be clearly erroneous.
We think, however, it was error for the Court to conclude from this finding that
the taxpayers were not entitled to the benefit of section 7502(a). On the
contrary, we are satisfied that they were entitled, and should have been
permitted, to prove, if they could, what the illegible date on the postmark
actually was, i.e., the date of the postmark. For it is the 'date of the United
States postmark' which section 7502(a) makes the significant date. The
operation of the subsection is not by its terms restricted to a date legibly
appearing on the face of the postmark. Here the postmark admittedly had a date
although that date was in part illegible and therefore could not be read from the
face of the postmark. Under these circumstances we are satisfied that it was
competent for the taxpayers to establish what the date of the postmark actually
was by evidence other than that appearing on the face of the postmark itself. To
hold otherwise would be to narrow the scope of section 7502(a) to a fortuitous
application wholly dependent upon the care with which postal employees
affixed postmarks and thus unwarrantedly to defeat in part its remedial
purposes. We are fortified in this conclusion by the Treasury Regulations on
Procedure and Administration adopted under the 1954 Code, section 301.75021(c)(1)(iii)(a)3 of which contains the following relevant sentence: 'If the
postmark on the envelope or wrapper is not legible, the person who is required
to file the document has the burden of proving the time when the postmark was
made.' Evidence as to the actual time of mailing, such as the taxpayers here
offered, was clearly relevant to this inquiry and should have been considered by
the Tax Court. For it may certainly be reasonably inferred from the practice
required of postal employees by the Postal Manual that mail is postmarked on
the day it is received by the postal authorities and that the postmark bears that
date.4
5
We are not here dealing with a case in which the postmark bore a clearly
legible date which was not the actual date of mailing, compare Boccuto v.
Commissioner, 3 Cir. 1960, 277 F.2d 549, nor with a case in which the cover
contained no postmark at all, compare Wood v. Commissioner, 9 Cir. 1964,
338 F.2d 602. Here the postmark actually has a date which under section
7502(a) is, if it can be determined, to be deemed the date of delivery of the
taxpayers' petition to the Tax Court. Since, however, the date cannot be read
from the face of the postmark because of its partial illegibility, it may only be
determined by evidence aliunde. We, of course, have not considered the
evidence which was offered by the taxpayers on this question since it will be
for the Tax Court upon remand to consider that and any other evidence offered
by the parties and thereupon to make such finding upon this jurisdictional
question as the evidence warrants.
One other matter requires mention.
As we have said the Tax Court permitted the taxpayers to have the impressions
of the postmark in question examined by a Government questioned document
examiner in the presence of a deputy clerk of the court. The court, however,
refused the taxpayers the right to have the postmark impressions examined by
an examiner of their own choosing. In this we think the court erred.
Accordingly, on remand the taxpayers should, if they request it, be accorded
this right, to be exercised, if the court deems it appropriate, in the presence of a
deputy clerk of the court.
The order of the Tax Court dismissing the petition for lack of jurisdiction will
be reversed and the cause will be remanded for further proceedings not
inconsistent with this opinion.
'6213. Restrictions applicable to deficiencies; petition to Tax Court
(a) Time for filing petition and restriction on assessment.-- Within 90 days, or
150 days if the notice is addressed to a person outside the States of the Union
and the District of Columbia, after the notice of deficiency authorized in section
6212 is mailed (not counting Saturday, Sunday, or a legal holiday in the
District of Columbia as the last day), the taxpayer may file a petition with the
Tax Court for a redetermination of the deficiency. Except as otherwise provided
in section 6861 no assessment of a deficiency in respect of any tax imposed by
subtitle A or B and no levy or proceeding in court for its collection shall be
made, begun, or prosecuted until such notice has been mailed to the taxpayer,
nor until the expiration of such 90-day or 150-day period, as the case may be,
nor, if a petition has been filed with the Tax Court, until the decision of the Tax
Court has become final. Notwithstanding the provisions of section 7421(a), the
making of such assessment or the beginning of such proceeding or levy during
the time such prohibition is in force may be enjoined by a proceeding in the
proper court.'
'7502. Timely mailing treated as timely filing
(a) General rule.-- If any claim, statement, or other document (other than a
return or other document required under authority of chapter 61), required to be
filed within a prescribed period or on or before a prescribed date under
authority of any provision of the internal revenue laws is, after such period or
such date, delivered by United States mail to the agency, officer, or office with
which such claim, statement, or other document is required to be filed, the date
of the United States postmark stamped on the cover in which such claim,
statement, or other document is mailed shall be deemed to be the date of
delivery. This subsection shall apply only if the postmark date falls within the
prescribed period or on or before the prescreibed date for the filing of the
claim, statement, or other document, determined with regard to any extension
granted for such filing, and only if the claim, statement, or other document was,
within the prescribed time, deposited in the mail in the United States in an
envelope or other appropriate wrapper, postage prepaid, properly addressed to
the agency, office, or officer with which the claim, statement, or other
document is required to be filed.'
26 CFR 301.7502-1(c)(1)(iii)(a)
'332.4 POSTMARKING
.44 SETTING DATE AND TIME INDICATOR Adjust date at the beginning
of each day * * *
.45 POSTMARKING LATE MAIL
Mail deposited after the last dispatch but before the office closes shall be
postmarked the same day. For postmarking purposes, office closing time means
the time the last employee assigned to postmarking duties is scheduled to leave
the office. All mail deposited afte the office closes, including mail deposited in
the collection box in front of the post office, shall be promptly postmarked
when the office opens the next mornign.
.48 IMPROPER DATING AND ALTERATIONS
Mail must not be postmarked or backstamped to indicate a date or time of
mailing or receiving other than the actual date or time of mailing or receiving,
except as specified in 332.45. Do not alter or erase any postmark or backstamp
previously placed on mail. Intentional violation of this regulation constitutes
grounds for prompt removal from the service.' Postal Manual; United States
Post Office Department.
