Opinion
2645-22
02-06-2023
NORIYUKI KASAHARA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed April 13, 2022. Although the Court provided petitioner an opportunity to file an objection, if any, to respondent's motion to dismiss, petitioner has not done so.
The record in this case reflects that respondent sent the notice of deficiency for petitioner's 2019 tax year by certified mail to petitioner's last known address on September 30, 2021. That notice of deficiency stated that the last day to file a Tax Court petition was December 29, 2021. The petition was received and filed by the Court on January 4, 2022. The petition was contained in an envelope bearing a FedEx Express Saver label with a ship date of December 29, 2021.
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 addition, jurisdiction must be proven affirmatively, and a taxpayer invoking our jurisdiction bears the burden of proving that we have jurisdiction over the taxpayer's case. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). 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 Internal Revenue Code (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 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 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 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.
Section 7502(f) governs the treatment of private delivery services, such as FedEx. It provides that a petition sent by a 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 services as 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. Thus, although petitioner shipped the petition in a timely manner, the timely mailing/timely filing provision of section 7502(a) does not apply in this case because FedEx Express Saver, which was used by petitioner, is not one of the designated delivery services listed in Notice 2016-30.
The record establishes that the petition in this case was not timely filed and thus we are obliged to dismiss this case for lack of jurisdiction. While the Court is sympathetic to petitioner's circumstances, we have no authority to extend the period for timely filing the petition. Hallmark Research Collective, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972). However, although petitioner may not prosecute this case in the Tax Court, petitioner may continue to pursue an administrative resolution of the 2019 tax liability directly with the IRS. Another remedy available to petitioner, if feasible, is to pay the determined amounts, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioner may file a suit for refund in the appropriate Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.