Opinion
9809-22
03-24-2023
YEHOSHUA LEFKOWITZ & ZEHAVA LEFKOWITZ, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On June 24, 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. On January 23, 2023, petitioners filed an Objection to Motion to Dismiss for Lack of Jurisdiction asserting that the petition was timely filed.
The record reflects that a notice of deficiency for tax years 2018 and 2019 was mailed on November 19, 2021, to petitioners at their last known address, which was in Israel. The petition was received by the Court and filed on April 25, 2022. The petition was contained in a Fedex International Priority envelope, and the waybill attached to the envelope indicates that it was completed on April 16, 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 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 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), Tax Court Rules of Practice of Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (I.R.C.) section 6213(a) provides that the petition must be filed with the Court within 90 days, or 150 days if the notice is addressed to a person outside the United States, after a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., it will be considered timely filed. See I.R.C. sec. 7502(a)(1). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
I.R.C. 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. The Secretary may designate a delivery service under the preceding sentence only if the Secretary determines that such service--
* * * * * * * *
(C) records electronically to its data base, kept in the regular course of its business, or marks on the cover in which any item referred to in this section is to be delivered, the date on which such item was given to such trade or business for delivery * * * *.
In their objection to the motion to dismiss, petitioners assert that the petition was timely sent to the Tax Court on April 16, 2022. In support of that assertion, petitioners provided a copy of the Fedex International Priority (a designated private delivery service) waybill that was completed by petitioners on April 16, 2022. The waybill bears a tracking number of 8089 5112 6468. They also provided a copy of the Fedex tracking information for the item with that tracking number. The Fedex tracking information shows that, while the waybill was completed on April 16, 2022, the ship date of that item (which is indicative of when FedEx received the item for shipping) was April 24, 2022.
Based on the date the notice of deficiency on which this case is based was mailed to petitioners' address outside of the United States, the last date petitioners could timely file a Tax Court petition was April 18, 2022. As discussed above, the Court received and filed the petition on April 25, 2022. The Fedex tracking information shows that the ship date of the petition was April 24, 2022. Both the filing and ship dates are after the last date petitioners could timely file their Tax Court petition. The record, therefore, establishes that the petition in this case was not timely filed.
While the Court is sympathetic to petitioners' situation, we have no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners may not prosecute a case in this Court, petitioners may continue to pursue administrative resolution of their 2018 and 2019 tax liabilities directly with the IRS. Also, another remedy potentially available to petitioners, if feasible, is to pay the determined amounts, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring 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 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.