Opinion
5089-22
06-09-2023
ALFONSO LOERA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On February 11, 2022, the Court received from petitioner and filed the petition to commence this case. Petitioner seeks review of a notice of deficiency, dated November 8, 2021, issued for his 2020 tax year. The notice of deficiency states that the last day petitioner could timely file a Tax Court petition was February 7, 2022. Petitioner used UPS Ground to send his petition to this Court.
Upon further review of the record, on May 3, 2023, the Court issued an Order to Show Cause, directing the parties to show cause in writing why this case should not be dismissed on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On May 16, 2023, respondent filed a Response to the Court's Order. On May 26, 2023, respondent filed a First Supplement to his Response. In that Response, as supplemented, respondent asserts that this case should be dismissed because the petition was not timely filed. No response has been received from petitioner.
In a case seeking the redetermination of a deficiency, the jurisdiction of this 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 Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Brown v. Commissioner, 89 T.C. 215, 220 (1982). A timely mailed petition may be treated as though it were timely filed. I.R.C. sec. 7502(a). Here, the last day petitioner could timely file (or timely mail) his petition was February 7, 2022. In order for the timely mailing/timely filing provision to apply to a petition shipped by private delivery service, however, that service must appear on the list of the Secretary's designated delivery services. See I.R.C. sec. 7502(f). Those designated delivery services are found in Notice 2016-30, effective April 22, 2016. UPS Ground, used by petitioner, is not listed among the designated delivery services.
While the petition was timely shipped on February 7, 2022, the petition was not sent by U.S. Mail or by a designated private delivery service. As a result, the timely mailing/timely filing provision of I.R.C. 7502(a) does not apply in this case. The petition, which was received and filed on February 11, 2022, therefore was not timely filed, and this Court is without jurisdiction in this case.
On May 2, 2023, the parties filed a Stipulation of Settlement, which indicates that the parties have reached a basis for settlement in this case. Although petitioner cannot continue to prosecute this case in this Court, the parties are free to resolve this case administratively.
Upon due consideration, it is
ORDERED that respondent's First Supplement to the Court's Order issued May 17, 2023, is recharacterized as a First Supplement to Response to Order to Show Cause. It is further
ORDERED that the Court's Order to Show Cause, issued May 3, 2023, is made absolute. It is further ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction.