Opinion
7167-23
12-26-2023
LAYLAH N. MARSH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy, Special Trial Judge
This deficiency case is before the Court on Ms. Marsh's Motion to Proceed Remotely (Motion), filed June 6, 2023, and the Commissioner's Motion to Dismiss for Lack of Jurisdiction (Motion to Dismiss), filed July 24, 2023. The Commissioner asks this Court to dismiss this case on the ground that the Petition was not filed within the time prescribed by section 6213(a) and that section 7502 is inapplicable to this case. As explained below, we will deny Ms. Marsh's Motion as moot, and we will grant the Commissioner's Motion to Dismiss.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Background
The following background facts are derived from the parties' pleadings, the motion papers, and the supporting exhibits attached thereto. Ms. Marsh resided in North Carolina when the Petition was filed. Absent stipulation to the contrary, this case is appealable to the U.S. Court of Appeals for the Fourth Circuit. See § 7482(b)(1)(A).
On January 23, 2023, the Commissioner sent to Ms. Marsh a Notice of Deficiency (Notice) for taxable year 2020 determining a deficiency in income tax in the amount of $2,636. The first page of the Notice advised Ms. Marsh that she had 90 days from the date of the Notice to file a petition with this Court. The Notice stated that Ms. Marsh had until April 24, 2023, to file a timely petition with this Court. In response to the Notice, Ms. Marsh mailed a copy of the Notice and a 2020 Form 1040X amended return which the Court filed as the Petition commencing this case. The Petition was deposited with Federal Express (FedEx) on April 24, 2023. The Petition with attachments arrived at the Court on April 28, 2023, by FedEx delivery service denominated "FedEx Ground." The Petition was received by the Court 95 days after the Notice was mailed.
On July 24, 2023, the Commissioner filed the Motion to Dismiss. On September 13, 2023, Ms. Marsh filed an Objection to the Commissioner's Motion to Dismiss contending, among other things, that a FedEx employee, not her, selected FedEx Ground as the means of shipping her Petition instead of one of the approved private delivery services. Ms. Marsh states that on April 24, 2023, a "FedEx employee explained due to staffing shortages as a result from the Covid-19 pandemic, [FedEx] could not charge [Ms. Marsh] for overnight or two-day shipping because [Ms. Marsh's] shipment would not leave the Wilmington FedEx depot in an efficient expedient manner thereby would not sell nor guarantee [Ms. Marsh] an overnight nor two day shipping these matters were outside of [Ms. Marsh's] control." Ms. Marsh further states that she faxed a copy of the Notice and her 2020 Form 1040X amended tax return to the IRS and attempted to fax a copy to the Court for filing as her Petition.
Discussion
This Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 3 (Nov. 2, 2023); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 135 (2022). Where this Court's jurisdiction is duly challenged, as here, 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). To meet this burden, Ms. Marsh, as the moving party, "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270. Ms. Marsh invoked our jurisdiction and therefore bears the burden of establishing we have jurisdiction.
In a case seeking redetermination of a deficiency, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6213; 7442; Rule 13(a), (c); Hallmark, 159 T.C. at 130; Mulvania v. Commissioner, 81 T.C. 65, 67 (1983). The issue in this case is whether Ms. Marsh timely filed her Petition. Section 6213(a) provides: "Within 90 days ... after the notice of deficiency authorized in section 6212 is mailed ..., the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency." We have held that the 90-day period prescribed by section 6213(a) sets forth a jurisdictional requirement. Sanders, 160 T.C., slip op. at 8; Hallmark, 159 T.C. at 166-67; Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
There is no dispute that the IRS sent the Notice, by certified mail, to Ms. Marsh at her last known address. See § 6212(a), (b)(1).
Pursuant to section 6213(a), the 90-day period for Ms. Marsh to file a petition with this Court disputing the Notice expired on April 23, 2023. April 23, 2023, was a Sunday, and the next day April 24, 2023, was a Monday and not a holiday. Therefore, Ms. Marsh had until April 24, 2023, to mail or file a petition for it to be considered timely. See § 7503 (providing that, for deadlines falling on a Saturday, Sunday, or legal holiday, an act "shall be considered timely if it is performed on the next succeeding day which is not a Saturday, Sunday, or a legal holiday"). The Notice also stated that Ms. Marsh had until April 24, 2023, to file a timely petition with this Court. See § 6213(a) (last sentence).
Under certain circumstances, a timely mailed petition may be treated as though it were timely filed if delivered by U.S. mail. § 7502(a); Treas. Reg. § 301.7502-1. However, Ms. Marsh did not send her Petition to the Court by U.S. mail, but she chose to use FedEx, a private delivery service. Section 7502(f) governs the treatment of private delivery services. It provides that the sending of a petition by private delivery service may be treated as timely mailed if the delivery service is one "designated by the Secretary". From time to time, the IRS lists all private delivery services that have been designated by the Secretary under section 7502(f). Notice 2016-30, 2016-18 I.R.B. 676, effective April 11, 2016, provides a list of designated private delivery services available by FedEx, including 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.
In this case, the Court received the Petition shipped via FedEx Ground, dated April 24, 2023. FedEx Ground, which Ms. Marsh used to mail the Petition to the Court, is not a designated private delivery service under Notice 2016-30. See Nguyen v. Commissioner, T.C. Memo. 2023-151 (holding that the timely mailing/timely filing provision of section 7502 was inapplicable where the Tax Court petition was sent by FedEx Ground); Raczkowski v. Commissioner, T.C. Memo. 2007-72 (holding that the timely mailing/timely filing provision of section 7502 was inapplicable where the Tax Court petition was sent by UPS Ground). The Petition was not sent using either the U.S. Postal Service or a designated private delivery service. As such, the timely mailing/timely filing provision of section 7502 is inapplicable in this case. The Court did not receive the Petition until April 28, 2023, which was 95 days after the mailing of the Notice. The Court concludes that Ms. Marsh did not file a timely petition, and therefore, the Court lacks jurisdiction to redetermine the deficiency for tax year 2020.
Recently, in Sanders, this Court reaffirmed its position previously announced in Hallmark, and we "will continue to treat the 90-day deficiency deadline as jurisdictional in cases appealable outside the Third Circuit, including in cases appealable to the First and Fourth Circuits." Sanders, 160 T.C., slip op. at 7-8. Even assuming the statements allegedly made by the FedEx employee to Ms. Marsh regarding the selection of the mailing service are true, section 6213(a) is a jurisdictional deadline not subject to equitable tolling.
Ms. Marsh has failed to "establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270. While we acknowledge that Ms. Marsh may have received deficient advice or assistance from the FedEx employee, we have no authority to extend the period for timely filing a petition. See Axe v. Commissioner, 58 T.C. 256, 259 (1972) ("We have no authority to extend the period provided by law for filing a petition with the Tax Court whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period."). Accordingly, we must dismiss this case for lack of jurisdiction because the Petition was not filed within the time prescribed by section 6213(a).
Upon due consideration of the foregoing, and for cause, it is
ORDERED that Ms. Marsh's Motion to Proceed Remotely, filed June 6, 2023, is denied as moot. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed July 24, 2023, is granted, and this case is dismissed on the stated ground.