The opinion
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.
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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,
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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.
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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
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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
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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).
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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
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* * * 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
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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).
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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
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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
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“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.