Opinion
10767-20
02-24-2023
ERRETT J. BOZARTH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On June 16, 2021, the parties filed a Joint Proposed Stipulated Decision for the Court's consideration. By Order to Show Cause, dated June 21, 2021, 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 July 6, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed with respect to tax year 2017. Respondent attached to the motion a copy of a postmarked substitute United States Postal Service Form 3877 as evidence of the fact that the notice of deficiency was sent to petitioner by certified mail on March 19, 2020. The notice of deficiency was dated March 19, 2020, and states that the last day for filing a timely Tax Court petition as to that notice would expire on June 17, 2020.
The petition was filed on July 17, 2020, which date is 120 days after the notice of deficiency for tax year 2017 was mailed to petitioner. The petition was received by the Court in an envelope bearing a UPS Ground shipping label bearing a shipping date of July 14, 2020, which date is 117 days after the notice of deficiency for tax year 2017 was mailed to petitioner.
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).
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 UPS Next Day Air Early AM, UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express. Notice 2016-30 further provides that "UPS * * * [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. UPS Ground, 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); Raczkowski v. Commissioner, T.C. Memo. 2007-72, at *3 (similarly holding timely mailing / timely filing provision was inapplicable where Tax Court petition was sent by UPS Ground). Accordingly, the timely mailing / timely filing provision of section 7502 is inapplicable in this case.
As mentioned above, the notice of deficiency states that the last day for filing a timely Tax Court petition as to that notice would expire on June 17, 2020. Pursuant to IRS Notice 2020-23, 2020-18 I.R.B. 742 (April 27, 2020), "Affected Taxpayers also have until July 15, 2020, to perform all Specified Time-Sensitive Actions, that are due to be performed on or after April 1, 2020, and before July 15, 2020. This relief includes the time for filing all petitions with the Tax Court." Therefore, in the present case, the time for filing a petition with this Court expired on July 15, 2020. However, the petition was not filed within that extended period.
On July 6, 2021, petitioner filed a Response to Order to Show Cause, in which he states that the first time he mailed the petition, the Tax Court was closed. On July 8, 2021, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction, in which he asserts that IRS Notice 2020-23, 2020-18 I.R.B. 742 (April 27, 2020) gave affected taxpayers a 30-day postponement for Time-Sensitive IRS Actions if the last date for performance of the action is on or after April 6, 2020, and before July 15, 2020. By Order served December 22, 2022, the Court directed petitioner to file a supplement to his motion and attach thereto copies of all documents upon which petitioner relies showing that he attempted to file his petition before July 17, 2020.On December 28, 2022, petitioner filed a First Supplemental Objection to Motion to Dismiss for Lack of Jurisdiction, to which he attached a copy of his petition that petitioner asserts was mailed on May 30, 2020. However, petitioner did not attach to his supplement any evidence that the petition was mailed or any evidence that the petition was returned to petitioner because the Tax Court was closed.
While the Court is sympathetic to petitioner's situation, governing law recognizes no exceptions for good cause or similar grounds that would allow him to proceed in this judicial forum. Axe v. Commissioner, 58 T.C. 256 (1972). Accordingly, since the petition was not filed within the required extended period, this case must be dismissed 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. In addition, if feasible, petitioner 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 Federal district court or the 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 June 16, 2021,is hereby deemed stricken from the Court's record in this case. It is further
ORDERED that the Court's Order to Show Cause, dated June 21, 2021, is hereby made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.