Opinion
33904-21
02-01-2023
DEIRDRE LENZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
Pending before the Court in this deficiency case is respondent's Motion to Dismiss for Lack of Jurisdiction, filed January 6, 2022. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. By Order served May 6, 2022, the Court directed petitioner to file an objection, if any, to the Motion. On June 13, 2022, petitioner filed such an Objection. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated July 26, 2021, respondent determined a deficiency and accuracy-related penalty in petitioner's Federal income tax for the taxable year 2019. The Petition in this case seeks redetermination of that deficiency and accuracy-related penalty.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6; Monge v. Commissioner, 93 T.C. 22, 27 (1989). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer at his last known address. See I.R.C. § 6212(b); Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), aff'd, 935 F.2d 1282 (3d Cir. 1991); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). In order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See I.R.C. § 6213(a); Hallmark Research Collective, slip op. at 42; Brown v. Commissioner, 78 T.C. 215, 220 (1982). We have no authority to extend this 90-day period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020). However, in certain circumstances, a timely mailed petition may be treated as though it were timely filed. See I.R.C. § 7502; Treas. Reg. § 301.7502-1.
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of the mailing of the notice. See I.R.C. § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). The Notice of Deficiency in this case is addressed to petitioner at an address within the United States, and there is no indication in the record that petitioner was outside the United States at or about the time when the Notice was mailed.
In the Motion to Dismiss, respondent asserts that the Notice of Deficiency in this case was sent by certified mail on July 26, 2021, to petitioner's last known address. A PS Form 3877 attached to the Motion to Dismiss establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on July 26, 2021, to the address in Glendale, California, listed in the Notice. That address is the same address that petitioner listed in the Petition, and petitioner has not disputed that the Notice was mailed to her last known address. We thus take it as established for purposes of the Motion to Dismiss that the Notice was so mailed.
A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The PS Form 3877 attached as Exhibit B to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity, such as a U.S. Postal Service postmark date of July 26, 2021. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on July 26, 2021, the last date to file a petition with this Court as to that Notice was October 25, 2021, as stated therein. The Petition in this case was received and filed by the Court on October 27, 2021. Nevertheless, the Petition was delivered to the Court by FedEx in an envelope bearing a "FedEx 2 Day A.M." label dated October 25, 2021, raising the question whether the "timely mailed, timely filed" rule of section 7502 might apply in this case to deem the Petition timely filed.
The 90th day after the mailing of the Notice of Deficiency was Sunday, October 24, 2021; however, section 6213(a) provides that Sunday is not counted as the last day of the 90-day period.
In his Motion to Dismiss, respondent asserts that FedEx 2 Day A.M.-that is, the specific delivery service used by petitioner to send the Petition to the Court-is not a designated private delivery service for purposes of the "timely mailed, timely filed" rule, and that the rule therefore does not apply in this case. In her Objection petitioner asserts that during the relevant period she was unable to reach any person by telephone at the Internal Revenue Service (IRS) and consequently "was not aware that there were postal delivery options that were unacceptable by the IRS."
Section 7502(f) extends the "timely mailed, timely filed" rule of section 7502 to certain private delivery services. But this extension applies only if the delivery service in question has been "designated" by the Secretary for purposes of section 7502. I.R.C. § 7502(f)(2). The Secretary may so designate a private delivery service only if the Secretary determines that it is at least as timely and reliable as the United States mail and that it meets other criteria specified in the statute. See I.R.C. § 7502(f)(2)(A)-(D).
In Notice 2016-30, 2016-18 I.R.B. 676, effective April 11, 2016, the IRS listed all private delivery services that have been designated by the Secretary under section 7502(f). The FedEx delivery services included on this list are as follows: 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 explicitly states that "FedEx * * * [is] not designated with respect to any type of delivery service not enumerated in this list." Thus, FedEx 2 Day A.M., which does not appear on the list, is not a designated private delivery service. See Eichelburg v. Commissioner, T.C. Memo. 2013-269 (holding that the "timely mailed, timely filed" rule did not apply to "FedEx Express Saver" service because that service had not been designated under section 7502(f)); Scaggs v. Commissioner, T.C. Memo. 2012-258 (holding that the "timely mailed, timely filed" rule did not apply to "FedEx Express Saver Third business day" service because that service had not been designated under section 7502(f)); Raczkowski v. Commissioner, T.C. Memo. 2007-72 (holding that the "timely mailed, timely filed" rule did not apply to "UPS Ground" service because that service had not been designated under section 7502(f)).
Because petitioner sent the Petition using FedEx 2 Day A.M., and that service is not a designated private delivery service, petitioner cannot avail herself of the "timely mailed, timely filed" rule of section 7502(a) and (f). And as noted, her Petition was not filed until October 27, 2021, two days after the expiration of the 90-day period. It was therefore untimely, and this Court lacks jurisdiction to redetermine the deficiency and accuracy-related penalty determined in the Notice of Deficiency.
While the Court is sympathetic to petitioner's circumstances, governing law recognizes no exceptions for good cause or similar grounds that would allow petitioner to proceed in this judicial forum. Indeed, the Court has no authority to extend the period provided by law for filing a petition "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972).
Although petitioner cannot pursue her case in the Tax Court, she may continue to pursue administrative resolution of the 2019 tax liability with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. 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.