Opinion
3425-23
06-21-2023
MELISSA N. AVILA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
On February 15, 2023, the Court received from petitioner and filed the petition to commence this case. Petitioner used UPS Ground to send the petition to the Court. On May 4, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. Although the Court provided petitioner an opportunity to file an objection, if any, to respondent's motion, petitioner has not done so.
In a case seeking the redetermination of a deficiency, the jurisdiction of this Court depends, in part, on the timely filing of a petition by the taxpayer. See Internal Revenue Code (I.R.C.) sec. 6213(a); see also Rule 13(c), Tax Court Rules of Practice and Procedure; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Brown v. Commissioner, 89 T.C. 215, 220 (1982). A timely mailed petition may be treated as though it were timely filed. I.R.C. sec. 7502(a). Here, the last day petitioner could timely file (or timely mail) the petition was February 13, 2023. In order for the timely mailing/timely filing provision to apply to a petition shipped by means of a private delivery service, however, the service provider used must appear on the list of the Secretary's designated delivery services. See I.R.C. sec. 7502(f). Those designated delivery services are found in Notice 2016-30, effective April 22, 2016. Unfortunately, UPS Ground, which was used by petitioner, is not listed among the designated delivery services.
While the petition was timely sent, it was not sent by U.S. Mail or a designated private delivery service. As a result, the timely mailing/timely filing provision of I.R.C. 7502(a) does not apply in this case. Thus the petition, which was received and filed on February 15, 2023, was not timely filed and this Court is without jurisdiction in this case. However, although petitioner cannot prosecute this case in this Court, petitioner may still pursue an administrative resolution of the 2020 tax liability directly with the IRS.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.