Opinion
27834-22S
04-21-2023
CHARLES ANTHONY PRESTO & MARY ELIZABETH PRESTO, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On December 27, 2022, the Court received and filed the Petition to commence this case. The Petition is signed and dated December 19, 2022, but the envelope in which it was mailed to the Court does not bear a postmark. However, the envelope is properly addressed to the U.S. Tax Court, and the return address on the envelope is in Santa Cruz, California. Four U.S. Postal Service (USPS) "Forever" stamps have been placed on the envelope.
On March 23, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction. Therein, respondent requests that this case be dismissed on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. Respondent asserts that the Notice of Deficiency upon which this case is based was sent by certified mail on September 19, 2022, to petitioners' last known address and that the last date to file a timely petition as to that Notice was therefore December 19, 2022.
The 90th day after the purported mailing date of the Notice of Deficiency would have been Sunday, December 18, 2022; however, I.R.C. § 6213(a) provides that Sunday is not counted as the last day of the period.
On April 19, 2023, the Court received and filed petitioners' Objection to Motion to Dismiss for Lack of Jurisdiction. The Objection arrived at the Court in an envelope properly addressed to the U.S. Tax Court and bearing a USPS postmark of April 4, 2023. The postmark indicates a location of San Jose, California.
In their Objection, petitioners assert that they "placed their petition in the Santa Cruz Post Office mail box of the USPS system on the afternoon of December 19, 2022, with proper postage and correctly addressed to the U.S. Tax Court in Washington, D.C." Petitioners argue that the Court thus has jurisdiction and that respondent's Motion should be denied.
In consideration of the foregoing, it is
ORDERED that, on or before May 12, 2023, respondent shall file a response to petitioners' above-referenced Objection. In that response, following a diligent inquiry with knowledgeable USPS personnel, respondent shall set forth and discuss fully when an envelope, properly addressed to the U.S. Tax Court and mailed from Santa Cruz, California, would have ordinarily been received at the Court. Such ordinary mailing time shall take into account the irradiation of mail sent to the U.S. Tax Court.