Opinion
4107-22S
01-10-2023
JUAN COLON CORTES & MARGARITA COLON, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Diana L. Leyden Special Trial Judge
On February 7, 2022, the petition commencing this case was filed. Petitioners seek review of a notice of deficiency dated October 28, 2021, issued for the taxable year 2018. Attached to the Response filed on May 12, 2022, is a copy of the October 28, 2021, notice of deficiency issued for 2018, which states the last day for filing a timely Tax Court petition is January 26, 2021.
On December 8, 2022, the Court issued an Order to Show Cause (OSC) directing respondent to file a response with the postmarked U.S. Postal Service Form 3877, or other proof of mailing, showing the October 28, 2021, deficiency notice for 2018, upon which this case is based, was sent by certified or registered mail to petitioners at their last known address on or about October 28, 2021. The OSC also directed the parties, on or before January 4, 2023, to show cause, in writing, why the Court should not dismiss this case for lack of jurisdiction on the ground the petition was not timely filed. On December 14, 2022, the parties filed a Proposed Stipulated Decision.
On January 5, 2023, respondent filed a Motion For Leave To File Out of Time Response to Order to Show Cause (motion), and lodged a Response to Order to Show Cause and attached the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioners' last known address, by certified mail on October 28, 2021. Petitioner did not file a response to the motion or a motion for leave to file out of time a response.
The record reflects that respondent mailed a notice of deficiency for 2018, on October 28, 2021. The 90-day period for filing a timely petition with the Court expired on January 26, 2021. The Petition arrived at the Court in a Certified Mail envelope the tracking of which indicates that the petition was mailed on January 31, 2021.
This Court is a court of limited jurisdiction. It may exercise its jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case seeking redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rule 13(c). A petition is timely if filed within 90 days of the mailing of the notice of deficiency. I.R.C. § 6213(a). If a petition is not timely filed, the Court does not have jurisdiction to redetermine the IRS' deficiency determination. Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (November 29, 2022).
Respondent presented the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioners' last known address by certified mail on October 28, 2021. Petitioners have not presented any evidence or argued the notice of deficiency, dated October 28, 2021, was not valid. Therefore, the Court finds that respondent issued a valid notice of deficiency to petitioner.
Section 6213(a) provides that the petition must be filed with the Court within 90 days 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 period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). In this case, the time for filing a petition with this Court expired January 26, 2021. However, the petition was not filed within that period.
Under certain circumstances, a timely mailed petition may be treated as though it were timely filed. Sec. 7502(a); sec. 301.7502-1, Proced. & Admin. Regs. In this case, the Petition arrived at the Court in a Certified Mail envelope the tracking of which indicates that the petition was mailed on January 31, 2021.
Section 7502(f) governs the treatment of private delivery services. It provides that the sending of a petition by private delivery service may be treated as timely mailed if the delivery service is one "designated by the Secretary". From time to time, the IRS lists all private delivery services that have been designated by the Secretary under section 7502(f). Notice 2016-30, 2016-18 I.R.B. 676, effective April 11, 2016, provides a list of designated private delivery services, including UPS Next Day Air Early AM, UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.
The Court, therefore, only has jurisdiction if the petition was mailed using the U.S. Postal Service or a designated private delivery service with the Court within the 90-day period. See sec. 6213(a). The Court concludes that petitioners did not timely file a petition in this case and therefore, the Court lacks jurisdiction to redetermine the deficiency for tax year 2018.
Upon due consideration, it is
ORDERED that the Proposed Stipulated Decision, filed December 14, 2022, is hereby deemed stricken from the Court's record in this case. It is further
ORDERED that respondent's Motion for Leave to File Out of Time Response to Order to Show Cause is granted, and the Clerk of the Court shall file respondent's Response to Order to Show cause, lodged January 5, 2023, as of the date of this Order. It is further
ORDERED that the Court's Order to Show Cause, dated December 8, 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.