Leonard and L. Melnik Grossman - Page 1

                                 T.C. Memo. 2005-164                                  

                               UNITED STATES TAX COURT                                

                   LEONARD AND L. MELNIK GROSSMAN, Petitioners v.                     
                    COMMISSIONER OF INTERNAL REVENUE, Respondent                      

               Docket No. 8662-04.               Filed July 5, 2005.                  

                    On Jan. 5, 2004, R issued a notice of deficiency to               
               petitioners.  The envelope containing Ps’ petition was                 
               postmarked by a private postage meter with a date of March             
               30, 2004.  The envelope was properly addressed, but it was             
               received by the Court after the 90-day period for filing               
               prescribed by sec. 6213(a), I.R.C.  R moved to dismiss this            
               case for lack of jurisdiction on the ground that Ps’                   
               petition for redetermination was not timely filed.  Secs.              
               6213(a), 7502(a) and (b), I.R.C.  Ps contend that their                
               petition was timely filed because it was mailed in                     
               accordance with the timely-mailing/timely-filing rule in               
               sec. 7502, I.R.C., and the regulations prescribed                      
                    Ps further contend that because they satisfied the                
               requirements of sec. 7491(a), I.R.C., the burden of proof              
               shifts to R on the issue of whether Ps’ petition was timely            
               filed.  R argues that the plain language of sec. 7491(a)(1),           
               I.R.C., indicates it is not applicable to the issue of                 
               whether Ps’ petition was timely filed.  R argues, in the               

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