Opinion
20005-21
03-23-2023
GUY D. BAXTER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
On June 7, 2021, petitioner filed the petition to commence this case, seeking review of a notice of deficiency issued concerning his 2017 tax year. On April 19, 2022, the parties filed a Proposed Stipulated Decision for the Court's consideration. The stipulated decision indicated the parties' agreement that, with respect to petitioner's 2017 tax year, there was no deficiency due from, and no overpayment due to, petitioner and there was no penalty due from petitioner under the provisions of Internal Revenue Code (I.R.C.) section 6662(d).
Upon further review of the record, however, it appeared that the petition in this case was not filed within the time prescribed in the Internal Revenue Code. Accordingly, on May 20, 2022, the Court issued an Order to Show Cause, directing the parties to show cause in writing why this case should not be dismissed for lack of jurisdiction on the grounds that the petition was not timely filed. On May 25, 2022, respondent filed a Response to the Court's Order to Show Cause. On January 20, 2023, respondent filed a First Supplement to his Response and, thereafter, on February 8, 2023, respondent filed a Second Supplement to his Response. On June 6, 2022, January 6, 2023, and February 6, 2023, petitioner filed letters in opposition to dismissal of this case for lack of jurisdiction.
The record in this case reflects that, on March 4, 2021, respondent sent the notice of deficiency for tax year 2017 by certified mail to petitioner's last known address. The petition was received by the Court and filed on June 7, 2021. The petition was sent in an envelope bearing a UPS Ground shipping label with an unknown ship date.
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 a taxpayer invoking our jurisdiction bears the burden of proving that we have jurisdiction over the taxpayer's 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 taxpayer. See I.R.C. sec. 6213(a); see also Rule 13(c), Tax Court Rules of Practice and Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Brown v. Commissioner, 89 T.C. 215, 220 (1982). In this regard, and as relevant here, I.R.C. section 6213(a) provides that a petition must be filed with the Court within 90 days, or 150 days if the notice is addressed to a taxpayer 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). A timely mailed petition may be treated as though it were timely filed. I.R.C. sec. 7502(a). Thus, if a petition is received by the Court after the expiration of the 90-day period, it is treated as timely if the postmark date showing on the envelope in which the petition was mailed is within the time prescribed for filing. I.R.C. sec. 7502(a); sec. 301.7502-1, Proced. & Admin. Regs.
Section 7502(f) governs the treatment of private delivery services, such as UPS. That provision provides that a petition sent by a private delivery service may be treated as timely mailed, as follows:
SEC. 7502(f). Treatment of Private Delivery Services.
(1) In general. - Any reference in this section to the United States mail shall be treated as including a reference to any designated delivery service, and any reference in this section to a postmark by the United States Postal Service shall be treated as including a reference to any date recorded or marked as described by paragraph (2)(C) by any designated delivery service.
(2) Designated Delivery Service. - For purposes of this subsection, the term "designated delivery service" means any delivery service provided by a trade or business if such service is designated by the Secretary for purposes of this section. * * * [Emphasis added.]
In Notice 2015-38, 2015-21, I.R.B. 984, effective May 6, 2015,the Commissioner includes the following among the UPS designated private delivery services: 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. Notice 2015-38 further provides that "* * *UPS [is] not designated with respect to any type of delivery service not enumerated in this list." See also sec. 301.7502-1(e)(2)(ii), Proced. & Admin. Regs. UPS Ground, which petitioner used to send his petition to the Court, is not a designated private delivery service under Notice 2015-38, 2015-21 I.R.B. 984.
In petitioner's filings in opposition to dismissal of this case for lack of jurisdiction, petitioner states that he had no knowledge concerning designated private delivery services and requests that this Court find that it has jurisdiction of this case so that we may enter the parties' Proposed Stipulated Decision. However, if the Court lacks jurisdiction, we cannot reach the merits of a case.
Here, the record establishes that the petition in this case was not timely filed. Based upon the date the notice of deficiency for tax year 2017 was mailed to petitioner, the last date petitioner could timely file a petition was June 2, 2021. As discussed above, the Court received and filed the petition on June 7, 2021, which is after the expiration of the 90-day filing period. Although petitioner may have sent the petition prior to the expiration of the 90-day filing period, because petitioner used UPS Ground, a non-designated private delivery service, the timely mailing/timely filing rule does not apply in this case.
While the Court is sympathetic to petitioners' circumstances, the Court has no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioner may not prosecute this case in this Court, petitioner and the IRS are encouraged to continue to pursue an administrative resolution of petitioner's 2017 tax liability.
Upon due consideration, it is
ORDERED that the Court's Order to Show Cause, issued May 20, 2022, is made absolute. It is further
ORDERED that this case is dismissed for lack of jurisdiction.