Opinion
10646-20S
07-15-2021
Angel Villavicencio & Ignacia F. Villavicencio, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Travis A. Greaves Judge
Following this Court's order issued on May 24, 2021, directing the parties to show cause why the Court should not dismiss this case for lack of jurisdiction, respondent and petitioners filed responses on June 8, 2021, and June 11, 2021, respectively. Based on a review of the parties' responses and the entire record, we conclude that the Court lacks jurisdiction in this case because petitioners failed to timely file a petition with this Court.
Respondent sent a notice of deficiency by certified mail to petitioners on March 16, 2020, after determining a deficiency in petitioners' 2017 Federal income tax. In response petitioners filed a petition for redetermination of the alleged deficiency. That petition was received by the Court on July 16, 2020, in a UPS shipping envelope bearing a UPS Ground Shipping label dated July 8, 2020. On May 13, 2021, the parties filed a Proposed Stipulated Decision.
Although neither party challenged our jurisdiction in this case, whether we have jurisdiction to decide a matter is an issue that this Court sua sponte may raise at any time. David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 269 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001). This Court's jurisdiction to redetermine a deficiency in income tax depends on a timely filed petition. Rule 13(c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). Jurisdiction must be shown affirmatively, and the failure to question our jurisdiction is not a waiver of the right to do so. David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 269-270. For if we lack jurisdiction over an issue, we do not have, and never had, the power to decide it. Id. As the party invoking the Court's jurisdiction, petitioners bear the burden of proving that we have jurisdiction over their case. Id. at 270.
Unless otherwise noted, all Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code (Code) in effect at all relevant times.
In pertinent part section 6213(a) provides: "Within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency authorized in section 6212 is mailed * * *, the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency." The 90-day period prescribed by section 6213(a) sets forth a jurisdictional requirement, and a failure to file within that time period requires dismissal of the petition. Tadros v. Commissioner, 763 F.2d 89, 91 (2d Cir. 1985); Guralnik v. Commissioner, 146 T.C. 230, 237-238 (2016). In response to the COVID-19 emergency and pursuant to section 7508A, the Secretary of the Treasury extended the time to file Tax Court petitions due to be filed between April 1, 2020, and July 15, 2020, until July 15, 2020. IRS Notice 2020-23, 2020-18 I.R.B. 742.
A petition is deemed to be timely filed if it is timely mailed by U.S. mail or by a private delivery service if such service is "designated by the Secretary" of the Treasury. Sec. 7502(a), (f). However, this "timely mailed, timely filed" rule does not apply when a taxpayer mails his petition using a non-designated private delivery service. Guralnik v. Commissioner, 146 T.C. at 240. UPS Ground service is not a designated private delivery service for section 7502 purposes. Id. at n.9; Raczkowski v. Commissioner, T.C. Memo. 2007-72, slip op. at *7; Notice 2004-84, 2004-52 I.R.B. 1030.
In response to this Court's order issued on May 24, 2021, respondent produced a postmarked U.S. Postal Service Form 3877 attached as Exhibit A showing that the notice of deficiency was sent by certified mail to petitioners on March 16, 2020. See Clough v. Commissioner, 119 T.C. 183, 187-188 (2002) (finding that, where a notice of deficiency is not disputed, a Form 3877 reflecting receipt into the mail by the U.S. Postal Service represents direct documentary evidence of the date of mailing of a notice of deficiency); Magazine v. Commissioner, 89 T.C. 321, 324 (1987) (noting that the period for the filing of a petition with this Court begins on the date the notice of deficiency is mailed). Based on the March 16, 2020, mailing date of the notice of deficiency, together with the 90-day filing period under section 6213(a) (as extended by section 7508A and Notice 2020-23), the last day in which petitioners could have timely filed a petition with this Court was July 15, 2020. The petition in this case was not timely filed as it was received by the Court on July 16, 2020. Although the petition was received by the Court in an envelope bearing a UPS Ground shipping label dated July 8, 2020, the "timely mailed, timely filed" rule does not apply to UPS Ground service.
Accordingly, upon due consideration of the foregoing, it is
ORDERED that the Court's Order To Show Cause, issued on May 24, 2021, is hereby made absolute. It is further
ORDERED that the parties' Proposed Stipulated Decision, filed May 13, 2021, is deemed stricken from the record in this case. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the ground the petition was not timely filed.