Opinion
35818-21S
02-23-2023
MARK ROBERT WNUK & SALLIE WNUK, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Richard T. Morrison Judge
On November 29, 2021, this Court received the petition to commence this case, seeking review of a notice of deficiency dated August 23, 2021, issued to petitioners for their 2019 tax year. The notice of deficiency attached the petition states the last day for filing a Tax Court petition was November 22, 2021. The petition reflects that petitioners Mark Robert Wnuck and Sallie Wnuk signed it on November 18, 2021. It was received by the Court in an envelope bearing no postmark. On the front of the envelope is an uncancelled USPS "Forever stamp" and what appears to be a machine mark on the bottom right.
On September 30, 2022, the parties submitted a joint proposed stipulated decision for the Court's consideration. Upon further review of the record, however, the Court questioned whether the petition was filed within the time prescribed by the Internal Revenue Code.
By Order dated December 19, 2022, the Court directed the parties to show cause why this case should not be dismissed for lack of jurisdiction on the ground that the petition was not timely filed.
Although a petition that is delivered to the Court after the expiration of the period prescribed by section 6213(a) shall be deemed timely if it bears a timely postmark, see sec. 7502, the envelope in which the Petition in this case was mailed to the Court bears no postmark. Where, as here, there is no postmark, we permit the introduction of extrinsic evidence to ascertain the mailing date, see Sylvan v. Commissioner, 65 T.C. 548, 553-555 (1975), but the burden is on the party invoking section 7502 to present "convincing evidence" of timely mailing, Mason v. Commissioner, 68 T.C. 354, 356-357 (1977); Spain v. Commissioner, T.C. Memo. 2021-58, 2021 WL 1885929, at *3; see also sec. 301.7502-1(c)(1)(iii)(A), (B)(1), Proced. & Admin. Regs.
On January 17, 2023, the petitioners filed signed statements that they mailed the petition on November 18, 2021. These signed statements contained corroborating details regarding the mailing. We believe these statements to be true. Therefore, we will not dismiss this case for lack of jurisdiction on the ground that the petition was not filed timely.
Given the foregoing, it is
ORDERED that the Court's December 19, 2022 Order to Show Cause is discharged.