is to bar what would otherwise be a valid claim for funds under Section 6511(a)." Gallo v. United States, 1994 U.S. Dist. LEXIS 14373 at *6, 1994 WL 557072, at *2 (S.D.N.Y. 1994).
Plaintiff here satisfies the first limitation because he filed his 1983 return and refund claim together. With regard to the second limitation, Plaintiff is deemed to have paid the 1983 tax, through withholding, on April 15, 1984. See 26 U.S.C. § 6513(b)(1) ("Any tax actually deducted and withheld . . . shall . . . be deemed to have been paid by him" on April 15 of the year "following the close of his taxable year"). Plaintiff, therefore, must have filed the 1983 tax refund claim no later than April 15, 1987 (i.e., within three years after April 15, 1984) to satisfy the requirement of Section 6511(b)(2)(A).
The determination of the date of filing a refund claim with the IRS is governed by 26 U.S.C. § 7502 ("Section 7502").
Under that section, proof of timely filing consists of either: (1) a postmarked envelope, or (2) the postmarked registered or certified mailing receipt. 26 U.S.C. § 7502; 26 CFR § 301.7502-1. The Second Circuit has held that, aside from the date of actual delivery, these are the only means by which a plaintiff can prove the date documents were filed with the IRS. See, e.g., Deutsch v. Commissioner of Internal Revenue, 599 F.2d 44, 46 (2d Cir. 1979) (finding that Congress intended to limit proof of mailing to objective evidence of postmark). Thus, when taxpayers fail to present the actual postmarked envelope or receipt under Section 7502, "courts have consistently rejected testimony or other evidence as proof of the actual date of mailing." Washton v. United States, 13 F.3d 49, 50 (2d Cir. 1993); see, e.g., Deutsch, 599 F.2d at 46 (refusing to consider testimony of taxpayer's accountant to prove actual date of mailing); Prowse v. Internal Revenue Service, 1992 U.S. Dist. LEXIS 14800 at *8, 1992 WL 330213, at *2 (E.D.N.Y. 1992) (deeming "self-serving" testimony of party "insufficient to establish that a tax form was duly filed; proof must be as provided in section 7502, i.e. by submitting a receipt"). If the taxpayer "cannot fit within one of the statutory exceptions embodied in Section 7502, then filing occurs upon actual receipt by the IRS." Prowse, 1992 U.S. Dist. LEXIS 14800 at *9, 1992 WL 330213, at *3.
Plaintiff claims that he filed his refund claim on April 15, 1987, within the three year statute of limitations period. Compl. at 1. In support of his claim, Plaintiff has submitted an affidavit from his accountant, who attests that he mailed Plaintiff's 1983 returns "on April 15, 1987, via certified mail." See Finbarr Collins Aff. at 1. The Government contends, through an affidavit of an IRS employee, that Plaintiff's refund claim was not received by the IRS until April 21, 1987. See Lilian Cohen Aff. P 4. The Government explains that the "Envelope Postmark" stamp, which was affixed to Plaintiff's claim upon its receipt by the IRS, is dated April 20, 1987. Id. PP 4-5.
Aside from the testimony of his accountant, Plaintiff has offered no direct evidence of the postmark of his refund claim. In any event, it appears that Plaintiff could not produce such evidence, as the IRS discarded the original postmarked envelope, see id., and Plaintiff's accountant "lost [his] proof of mailing (United States Postal Service certified mail receipts) for the returns sent to the I.R.S.," Finbarr Collins Aff. at 1. Because the testimony of Plaintiff's accountant is insufficient to establish that the refund claim was filed on or before April 15, 1987, and because no Section 7502 evidence has been presented, Plaintiff cannot establish timely filing of his claim. Accordingly, the Court lacks subject matter jurisdiction over this action.
For all the foregoing reasons, the Government's motion is granted. The Court hereby amends the caption of this action to substitute the United States as the defendant and dismisses the action for lack of subject matter jurisdiction.
It is So Ordered.
Dated: June 17, 1997
New York, New York
Mary Johnson Lowe
United States District Judge