Opinion
9810-22S
03-24-2023
JOSE L. FERNANDEZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Diana L. Leyden Special Trial Judge
On April 26, 2022, the Petition commencing this case was filed. Petitioner seeks review of a notice of deficiency dated November 1, 2021, issued for the taxable year 2018. Attached to the Petition filed on April 26, 2022, is a copy of the November 1, 2021, notice of deficiency issued for 2018, which states the last day for filing a timely Tax Court petition is January 31, 2022.
On February 8, 2023, the Court issued an Order to Show Cause (OSC) directing respondent to file a response with the postmarked U.S. Postal Service Form 3877, or other proof of mailing, showing the November 1, 2021, deficiency notice for 2018, upon which this case is based, was sent by certified or registered mail to petitioner at his last known address on or about November 1, 2021. The OSC also directed the parties, on or before March 8, 2023, to show cause, in writing, why the Court should not dismiss this case for lack of jurisdiction on the ground the Petition was not timely filed.
On March 8, 2023, respondent filed a Response to Order to Show Cause and attached as Exhibit A, the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioner's last known address, by certified mail on November 1, 2021. However, the parties failed to show cause, why the Court, on its own motion, should not dismiss this case for lack of jurisdiction on the ground that the Petition was not timely filed.
The record reflects that respondent mailed a notice of deficiency for 2018, on November 1, 2021. The 90-day period for filing a timely petition with the Court expired on January 31, 2022. The Petition arrived at the Court in a USPS Express Mail envelope bearing a postmark of 04/25/2022.
This Court is a court of limited jurisdiction. It may exercise its jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case seeking redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rule 13(c). A petition is timely if filed within 90 days of the mailing of the notice of deficiency. I.R.C. § 6213(a). If a petition is not timely filed, the Court does not have jurisdiction to redetermine the IRS' deficiency determination. Hallmark Rsch Collective v. Commissioner, 159 T.C. No. 21284-21, 159 T.C., slip op. at 14 (Nov. 29, 2022).
Petitioner has not presented any evidence or argued the notice of deficiency, dated November 1, 2021, was not valid. Therefore, the Court finds that respondent issued a valid notice of deficiency to petitioner.
Section 6213(a) provides that the petition must be filed with the Court within 90 days after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The Court has no authority to extend this 90-day period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). In this case, the time for filing a petition with this Court expired January 31, 2022. However, the Petition was not filed within that period and indeed was filed almost 3 months after that date.
Under certain circumstances, a timely mailed petition may be treated as though it were timely filed. I.R.C. § 7502(a); Treas. Reg. § 301.7502-1. In this case, the Petition arrived at the Court in a Certified Mail envelope the tracking of which indicates that the Petition was mailed on November 2, 2021.
Section 7502(f) governs the treatment of private delivery services. It provides that the sending of a petition by private delivery service may be treated as timely mailed if the delivery service is one "designated by the Secretary". From time to time, the IRS lists all private delivery services that have been designated by the Secretary under section 7502(f). Notice 2016-30, 2016-18 I.R.B. 676, effective April 11, 2016, provides a list of designated private delivery services, including UPS Next Day Air Early AM, UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.
The Court, therefore, only has jurisdiction if the petition was mailed using the U.S. Postal Service or a designated private delivery service with the Court within the 90-day period. See sec. 6213(a). The Court concludes that petitioner did not timely file a petition in this case and therefore, the Court lacks jurisdiction to redetermine the deficiency for tax year 2018.
Upon due consideration, it is
ORDERED that the Court's Order to Show Cause, dated February 8, 2023, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the ground that the Petition was not timely filed as to tax year 2018.