Unpublished Dispositionjames K. Bailey and Cleta Sue Bailey, Petitioner-appellant, v. Commissioner of Internal Revenue, Respondent-appellee, 829 F.2d 38 (6th Cir. 1987)

The petitioners appeal from an order of the United States Tax Court determining that there are deficiencies in income taxes due from them for the taxable years 1980 and 1981 in the amounts of $860.00 and $730.00, respectively. The Commissioner now moves to dismiss on grounds that this Court lacks jurisdiction to review the matter. The petitioners have not responded to the motion.

The Tax Court entered its decision in this case on January 16, 1987. The petitioners mailed their notice of appeal on April 17, 1987, and the notice of appeal was filed on April 20, 1987.

Notice of appeal from a Tax Court order must be filed within ninety (90) days after that decision is entered. 26 U.S.C. § 7483. The date of the United States postmark stamped on the envelope in which notice is mailed constitutes the filing date. 26 U.S.C. § 7502(a) (1); Shipley v. Commissioner of Internal Revenue, 572 F.2d 212 (9th Cir. 1977) (per curiam).

The petitioner's notice of appeal was postmarked April 17, 1987, the ninety-first (91st) day after the Tax Court's decision was entered. Because notice of appeal was not timely filed, this Court has no jurisdiction to consider the instant appeal. Accordingly,

It is ORDERED that the motion to dismiss is granted.