Opinion
9872-22S
02-26-2024
PAMELA HODGE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
KATHLEEN KERRIGAN CHIEF JUDGE
On January 24, 2024, the parties filed a Joint Proposed Stipulated Decision for the Court's consideration. By Order to Show Cause, dated January 26, 2024, 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 15, 2024, respondent filed a Response to the order to show cause. In respondent's Response, respondent asserts that the petition was untimely because it was filed on April 26, 2022, which was after the last date to petition the Court and the petition was mailed using UPS Ground, which is not a designated delivery service as defined in I.R.C. section 7502(f). Respondent attached to the responses a copy of the Certified Mail List as evidence of the fact that the notice of deficiency was sent to petitioner by certified mail on January 22, 2021. The notice of deficiency was dated January 25, 2021, and states that the last day for filing a timely Tax Court petition as to that notice would expire on April 26, 2021.
The petition was filed on April 26, 2022, which date is more than a year 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 April 22, 2022, which date is also more than a year 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); Pugsley v. Commissioner, 749 F.2d 691, 692 (11th Cir. 1985); see also Allen v. Commissioner, 2022 WL 17825934 (11th Cir. 2022); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); 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 April 26, 2021. However, the petition was not filed within that 90 day period.
On February 14, 2024, petitioner filed a Response to Order to Show Cause, in which she does not dispute the jurisdictional allegations set forth in respondent's Response. Instead, she states that liability for tax year 2017 has been paid.
While the Court is sympathetic to petitioner's situation, governing law recognizes no exceptions for good cause or similar grounds that would allow her to proceed in this judicial forum. Axe v. Commissioner, 58 T.C. 256 (1972). Accordingly, since the petition was not filed within the required 90 day 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 Court's Order to Show Cause, dated January 26, 2024, 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 2017.