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has 90 days (or 150 days if the notice is addressed to a person
outside of the United States) from the date the notice of
deficiency is mailed to file a petition in this Court for a
redetermination of the deficiency. Sec. 6213(a). Pursuant to
section 7502(a), a timely mailed petition will be treated as
though it were timely filed.
There is no dispute in this case that respondent mailed the
notice of deficiency for 1997 and 1998 to petitioners on May 1,
2001. However, the petition in this case was not filed with the
Court until February 28, 2002-–10 months after the mailing of the
notice of deficiency. Moreover, the envelope in which the
petition was mailed to the Court bears a U.S. Postal Service
postmark date of February 12, 2002. Under these circumstances,
it follows that the petition was not filed within the 90-day
period prescribed by section 6213(a).
Petitioners nonetheless contend that the petition should be
considered timely filed on the theory that the period for filing
a petition with this Court was tolled during the pendency of
their refund action in the District Court. We disagree.
Simply put, there is no provision in the Internal Revenue
Code that serves to toll the statutory period for filing a
petition with this Court during the pendency of a refund action
in a U.S. District Court or the Court of Federal Claims. To the
contrary, section 7422(e), which establishes the procedures to be
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Last modified: May 25, 2011