Opinion
28512-21S
01-24-2023
DUSTIN TAYLOR BINGHAM & AMANDA A. BINGHAM, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On January 27, 2022, the parties filed a Joint Proposed Stipulated Decision for the Court's Consideration. By Order to Show Cause, served January 31, 2022, the Court directed the parties to show cause why this case should not be dismissed for lack of jurisdiction on the ground that the petition was not timely filed. On February 17, 2022, respondent filed a Response to the order to show cause, asserting that the petition was untimely and attaching thereto a copy of the certified mail receipt as evidence of the fact that the notice of deficiency on which this case is based was sent to petitioner by certified mail on May 17, 2021.
The petition was filed on August 18, 2021, which date is 93 days after the notice of deficiency for tax year 2018 was mailed to petitioner. The petition was received by the Court in a FedEx Express Saver envelope.
This Court is a court of limited jurisdiction. This Court's jurisdiction to determine a deficiency in income tax depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a) and (c); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, I.R.C. section 6213(a) provides that the petition must be filed with the Court 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 the present case, the time for filing a petition with this Court expired on August 16, 2021. However, the petition was not filed within that 90 day period.
On February 22, 2022, petitioners filed a Response to the order to show cause, to which petitioners attached FedEx tracking showing that they shipped their petition to the Court using FedEx Express Saver on August 13, 2021.
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 deemed to be timely if the 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 under section 7502. It provides that the sending of a petition by a private delivery service may be treated as timely mailed. Section 7502(f)(1) provides 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 2016-30, 2016-18 I.R.B. 676, the Commissioner includes among designated private delivery services FedEx First Overnight, FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Next Flight Out, FedEx International Priority, FedEx International First, and FedEx International Economy. Notice 2016-30 further provides that "FedEx * * * [is] not designated with respect to any type of delivery service not enumerated in this list." See sec. 301.7502-1(c)(3), Proced. & Admin. Regs. FedEx Express Saver, which petitioner used to mail the petition to the Court, is not a designated private delivery service under Notice 2016-30. See also Eichelburg v. Commissioner, T.C. Memo. 2013-269, at *2-3 (holding that the timely mailing / timely filing provision of section 7502 did not apply where the taxpayer's Tax Court petition was shipped via FedEx Express Saver). Accordingly, the timely mailing / timely filing provision of section 7502 is inapplicable in this case.
While the Court is sympathetic to petitioners' situation, governing law recognizes no exceptions for good cause or similar grounds that would allow them to proceed in this judicial forum. Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256 (1972). Accordingly, since the petition was not filed within the required 90 day period, we are obliged to dismiss this case for lack of jurisdiction. The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. Also, petitioners may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in the Federal district court or U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that the parties Joint Proposed Stipulated Decision, filed January 27, 2022, is hereby deemed stricken from the Court's record in this case. It is further
ORDERED that the Court's Order to Show Cause, served January 31, 2022, 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.