Opinion
13469-22
03-24-2023
MARIA CIFELLI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On December 22, 2022, 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 the opportunity to file an objection, if any, to respondent's motion, petitioner has not done so.
The record reflects that a notice of deficiency for petitioner's 2019 tax year was mailed to petitioner's last known address on February 28, 2022. The petition in this case was received and filed by the Court on June 2, 2022. The envelope containing the petition bears a FedEx Express Saver shipping label with a ship date of May 31, 2022.
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 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 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 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.
I.R.C. 7502(f) governs the treatment of private delivery services, such as FedEx. That provision provides that a petition sent by 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 2016-30, 2016-18 I.R.B. 676, effective April 11, 2016, the Commissioner lists the following FedEx designated 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 also sec. 301.7502-1(e)(2)(ii), Proced. & Admin. Regs. FedEx Express Saver, which petitioner used to send her petition to the Court, is not a designated delivery service under Notice 2016-30.
Based on the mailing date of the notice of deficiency in this case, the last day petitioner could file (or timely mail) the petition was May 31, 2022. Petitioner sent the petition prior to the expiration of the 90-day filing period, but the timely mailing/timely filing rule of section 7502(a) does not apply in this case because petitioner used a non-designated private delivery service. Therefore, the petition, which was received and filed by the Court on June 2, 2022, was not timely filed.
While the Court is sympathetic to petitioner's circumstances in this case, because the record establishes that the petition was not timely filed we are obliged to dismiss this case for lack of jurisdiction. However, although petitioner cannot prosecute this case in this Court, petitioner may continue to pursue an administrative resolution of the 2019 tax liability directly with the IRS.
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.