Unpublished Disposition, 936 F.2d 578 (9th Cir. 1990)

MEMORANDUM^** 

Jerry G. Martinez appeals pro se the tax court's decision dismissing his petition for a redetermination of tax deficiency for failure to prosecute, imposing damages against Martinez pursuant to 26 U.S.C. § 6673, and denying his motion to vacate the decision. We dismiss the appeal for lack of jurisdiction.

We have jurisdiction to review decisions of the tax court pursuant to 26 U.S.C. § 7482. Section 7483 of the Internal Revenue Code, 26 U.S.C., provides that " [r]eview of a decision of the Tax Court shall be obtained by filing a notice of appeal with the Clerk of the Tax Court within 90 days after the decision of the Tax Court is entered." See also Fed. R. App. P. 13(a). The timely filing of a notice of appeal is jurisdictional. Davies v. Commissioner, 715 F.2d 435, 436 (9th Cir. 1983).

Fed. R. App. P. 13(b) provides that a notice of appeal may be filed by mail. "If a notice is delivered to the clerk by mail and is received after expiration of the last day allowed for filing, the postmark date shall be deemed to be the date of delivery, subject to the provisions of Sec. 7502 of the Internal Revenue Code of 1954, as amended, and the regulations promulgated pursuant thereto." Fed. R. App. P. 13(b). Treasury Regulation section 301.7502-1(c) (iii) (a) provides that "if the postmark on the envelope or wrapper is not legible, the person who is required to file the document has the burden of proving when the postmark was made."

Here, the district court entered judgment on June 18, 1990. The period for filing a notice of appeal expired on September 17, 1990. The notice of appeal was received by mail and filed in the tax court on September 24, 1990. The postmark on the envelope is illegible. Therefore, Martinez has the burden of proving that the postmark was made on or before September 17, 1990.

Martinez fails to address the date of the postmark in either his opening or reply briefs, or any other papers filed with this court or the tax court. In his certificate of mailing, however, Martinez indicates that he mailed the notice of appeal to both the respondent and the tax court on September 18, 1990, after the appeal period had expired. Therefore, Martinez has failed to carry his burden of proof with regard to the date of the postmark on the notice of appeal. Accordingly, because the notice of appeal was not timely filed, we dismiss the appeal for lack of jurisdiction.

DISMISSED.