Opinion
37404-21S
02-02-2023
CORY E. CHEEK & SARAH CHEEK, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy Special Trial Judge
A petition commencing this case was filed on December 13, 2021. Petitioners seek review of the notice of deficiency (notice) dated September 7, 2021, and issued for taxable year 2018. Attached to the petition is a copy of that notice, which states the last day for filing a timely Tax Court petition as to that notice would expire on December 6, 2021. The petition arrived at the Court in an envelope with a Pitney-Bowes postage meter date of "DEC 06 2021". However, the back of the envelope contained a U.S. postmark dated December 7, 2021.
On May 4, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction. Respondent attached a USPS Form 3877 stamped September 2, 2021, the date he mailed the notice to petitioners. Although the Court directed petitioners to file an objection or response, if any, to respondent's motion, petitioners failed to do so. On January 26, 2023, the Court held a conference call with the parties. During this call, petitioners and their accountant stated they had no additional evidence to show that the petition was deposited with the U.S. Postal Service and mailed prior to December 7, 2021.
This Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In addition, jurisdiction must be proven affirmatively, and petitioners invoking our jurisdiction bear the burden of proving that we have jurisdiction over their case. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975), Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
In a case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the petitioners. Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982); Rule 13(c), Tax Court Rules of Practice and Procedure. In this regard, Internal Revenue Code (I.R.C.) section 6213(a) provides that the petition must be filed with the Court within 90 days after the notice is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). However, if the date specified for timely filing on the notice is later than the date computed with reference to the mailing date, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice. I.R.C. § 6213(a).
If a petition is timely mailed and properly addressed to the Court, it will be considered timely filed, and the date of the U.S. postmark stamped on the envelope shall be deemed to be the date of delivery. See I.R.C. § 7502(a)(1). For the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last day for timely filing a petition. See I.R.C. § 7502(a)(2). If an envelope has a postmark made by the USPS as well as a non-USPS postmark, the postmark that is not made by the USPS is disregarded, and whether the envelope is timely mailed will be determined solely by the USPS postmark. See I.R.C. § 7502(b); Treas. Reg. § 301.7502-1(c)(1)(iii)(B)(3). When a document is sent by certified mail, the date of the U.S. postmark on the sender's certified mail receipt, postmarked by USPS employee to whom the document is presented, is treated as the postmark date. See I.R.C. § 7502(c)(2); Treas. Reg. § 301.7502-1(c)(2).
The record reflects that respondent mailed a notice for taxable year 2018 on September 2, 2021. The last day to timely file a petition, as specified on the notice of deficiency, was December 6, 2021, which date was not a Saturday, a Sunday, or a legal holiday in the District of Columbia. The petition bears a Pitney-Bowes meter date of "DEC 06 2021," but this is a private postage-meter date and not a U.S. postmark. One cannot satisfy the 90-day deadline of section 6213(a) by printing off metered postage before the 90 days expires and using it to mail the petition later. Further, the tracking information for the certified mailing label on the petition shows that the petition was accepted by the USPS on December 7, 2021. Petitioners have not presented any evidence, including a postmarked receipt, to show that the petition was postmarked on or before December 6, 2021. Therefore, the petition was not timely filed, and this Court lacks jurisdiction to redetermine the deficiency for taxable year 2018.
Upon due consideration of respondent's motion and for cause, it is
ORDERED that, respondent's Motion to Dismiss for Lack of Jurisdiction, filed May 4, 2022, is granted, and this case is dismissed for lack of jurisdiction on the ground the petition was not timely filed.