Estate of Antonino Campilongo, Deceased, Rafelino Maglio, Executrix - Page 6
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US Tax Court > 1996 > Estate of Antonino Campilongo, Deceased, Rafelino Maglio, Executrix - Page 6
his postmark should fare any better, especially when the
regulations require both postmarks to be made on or
before the 90th day. * * *
Wiese v. Commissioner, supra at 714-715; see also Kahle v.
Commissioner, 88 T.C. 1063 (1987) (petition postmarked on 91st day
was untimely whether postmark made by private meter or U.S. Postal
Service; postmark date conclusive and extrinsic evidence not
admissible to contradict it).
In the instant case, the April 21, 1995, postmark on
petitioner's envelope is conclusive. Petitioner's claimed prior
attempt to mail the petition was unsuccessful and did not result in
the filing of the petition. Evidence of such attempted mailing is
inadmissible under Wiese and Kahle.
Petitioner relies on Sylvan v. Commissioner, 65 T.C. 548
(1975), in which we considered extrinsic evidence of the date of
mailing when the Post Office failed to postmark the envelope
containing taxpayer's petition. In that case, the envelope had
sufficient postage. It reached the Court within the normal period
following a timely mailing. The Court drew an analogy to cases
where the postmark on the envelope is illegible. See sec. 301-
7502-1(c)(iii)(A). In this case, petitioner's prior claimed
mailing did not reach the Court and was returned for postage.
Unlike Sylvan, the subsequent mailing bore a legible private
postmeter date beyond the 90-day period for filing. Sylvan is
therefore distinguishable on its facts.
Petitioner could have obtained a United States postmark on a
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