Opinion
9189-22
02-21-2023
SAM W. MATTHEWS, DECEASED, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
On April 14, 2022, the petition to commence this case, which indicates that petitioner is deceased, was filed on behalf of petitioner by Susan Matthews, who represents that she is petitioner's daughter and trustee. On June 24, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to Sam W. Matthews, Deceased, on the grounds that the petition was not filed by petitioner or by someone who had the legal capacity to represent petitioner's estate before this Court.
Upon further review of the record, however, it appeared that this case had a more fundamental defect in that the petition was not timely filed. Accordingly, on December 14, 2022, the Court issued an Order to Show Cause, directing the parties to show cause in writing why this case should not be dismissed for lack of jurisdiction on the ground that the petition was not timely filed. On January 13, 2023, respondent filed a Response to the Court's Order to Show Cause and, on February 7, 2023, filed a First Supplement to his Response, in which respondent indicates that this case should be dismissed on the grounds that the petition was not timely filed. Although respondent indicates in his Response, as supplemented, that Susan Matthews objects to the dismissal of this case for lack of jurisdiction, the Court has received no response to its Order to Show Cause from Susan Matthews.
The record in this case reflects that respondent mailed the notice of deficiency for tax year 2017 to petitioner by certified mail on January 10, 2022. Pursuant to I.R.C. sections 6213(a) and 7503, the period for filing a petition with this Court expired on April 11, 2022. The petition was received by the Court and filed on April 14, 2022. The petition was received in an envelope bearing a UPS Ground label with a ship date of April 11, 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 the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. See 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 UPS services as designated delivery services: UPS Next Day Air Early A.M., UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express. Notice 2016-30 further provides that "* * *UPS * * * [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 the petition was timely shipped, the timely mailing/timely filing rule of section 7502(a) does not apply in this case because UPS Ground, which was used to file the petition, 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. While the Court is sympathetic to petitioner's circumstances, we have no authority to extend the period for timely filing the petition. See Hallmark Research Collective v. Commissioner, 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 potentially 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 as to Sam W. Matthews, Deceased, is recharacterized as a Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is denied. It is further
ORDERED that the Court's Order to Show Cause, issued December 14, 2022, is made absolute. It is further
ORDERED that this case is dismissed for lack of jurisdiction on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code.