Opinion
35084-21S
12-05-2022
JUSTIN RYAN KILGORE & LINDSEY LAWSON KILGORE, 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 November 17, 2021. Petitioners seek review of the notice of deficiency (notice) dated August 16, 2021, and issued to them for 2019. 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 November 15, 2021. The petition arrived at the Court on November 17, 2021, in a UPS Ground envelope dated November 15, 2021.
The Court issued an Order to Show Cause served on June 22, 2022, seeking the parties' positions as to why the Court should not dismiss this case for lack of jurisdiction on the ground the petition was not timely filed. Respondent filed a Motion to Dismiss for Lack of Jurisdiction on July 22, 2022. Although the Court directed petitioners to file an objection, if any, to the Order to Show Cause, petitioners have failed to do so.
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 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 taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). 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, or 150 days if the notice is addressed to a person outside the United States, 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 (or 150-day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). In this case, the time for filing a petition with this Court expired November 15, 2021. Under certain circumstances, a timely mailed petition may be treated as though it were timely filed. § 7502(a); Treas. Reg. § 301.7502-1. In this case, the Court received the petition in a UPS Ground envelope, dated November 15, 2021. However, the petition was not sent using either the U.S. Postal Service or a designated private delivery service.
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, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.
The record reflects that respondent mailed a notice of deficiency for 2019, dated August 16, 2021. The 90-day period for filing a timely petition with the Court expired on November 15, 2021. On November 17, 2021, the petition arrived at the Court in a UPS Ground envelope, dated November 15, 2021. The Court, however, 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 § 6213(a). Petitioners' petition was mailed on November 15, 2021, using a delivery service, UPS Ground, which is not a designated private delivery service. The Court did not receive the petition until November 17, 2021, which was 92 days after the mailing of the notice of deficiency. The Court concludes that petitioners did not timely file a petition in this case and therefore, the Court lacks jurisdiction to redetermine the deficiency for tax year 2019.
Accordingly, upon due consideration of the foregoing, it is
ORDERED that the Court's Order To Show Cause, issued on June 22, 2022, is hereby discharged. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed July 22, 2022, is granted, and this case is dismissed for lack of jurisdiction on the ground the petition was not timely filed.