Opinion
11369-20S
11-17-2021
Edom Tebeje Mesfin, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Diana L. Leyden Special Trial Judge
This case is calendared for trial at the February 22, 2022, Washington, DC, Trial Session of the Court. The petition in this case was filed with the Court on August 10, 2020. Petitioner seeks review of a notice of deficiency dated March 9, 2020, for tax year 2017. The last day to timely file a petition in this case was June 8, 2020.
On October 22, 2021, the Court issued an Order to Show Cause (OSC) directing respondent to file a response with the postmarked U.S. Postal Service Form 3877, or other proof of mailing, showing the March 9, 2020, deficiency notice for 2017, upon which this case is based, was sent by certified or registered mail to petitioners at their last known address on or about March 9, 2020. The OSC also directed both parties, on or before November 17, 2021, to show cause, in writing, why the Court should not dismiss this case for lack of jurisdiction on the ground the petition was not timely filed.
Respondent filed a response to the Court's OSC on November 8, 2021, and attached the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioners' last known address, by certified mail on March 5, 2020. Respondent agrees in his response that this case should be dismissed for lack of jurisdiction on the ground that the petition was not timely filed.
Petitioner filed a response to the Court's OSC on November 15, 2021, and attached two supporting exhibits. He also filed two additional documents (Index #11 and Index #12) each under the designation "Brief in Support of Response to Order". These additional filings are duplicates of Exhibit A and Exhibit B attached to petitioner's November 15, 2021, response to the Court's OSC.
The record reflects that respondent mailed a notice of deficiency for 2017, dated March 9, 2017, on March 5, 2020. The 90-day period for filing a timely petition with the Court expired on June 8, 2020. The petition, filed August 10, 2020, arrived at the Court in a UPS Express Envelope with two labels. The first label indicated a date of "14 May 2020. However, it appears the envelope was returned to shipper, on or around May 15, 2020. The second label indicated a date of "7 Aug 2020".
The Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case seeking redetermination of a deficiency, the Court's jurisdiction depends, in part, on (1) the issuance by the IRS of a valid notice of deficiency to the taxpayer and (2) the timely filing of a petition by the taxpayer. See secs. 6212, 6213(a); Frieling v. Commissioner, 81 T.C. 42, 46 (1983); Brown v. Commissioner, 78 T.C. 215, 220 (1982); Rule 13(c).
Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended, in effect for the tax year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Respondent presented the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioners' last known address by certified mail on March 5, 2020. Petitioner has not presented any evidence or argued that the notice of deficiency, dated March 9, 2020, was not valid. Therefore, the Court finds that respondent issued a valid notice of deficiency to petitioner.
Section 6213(a) provides that the 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). The Court has no authority to extend this 90-day period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). In this case, the time for filing a petition with this Court expired June 8, 2020. On March 18, 2020, the United States Tax Court building, including the clerk's office, closed. This closure extended the time during which a taxpayer could file a petition, due during the period of closure, until the next day the clerk's office was open. Guralnik v. Commissioner, 146 T.C. 230, 252-253 (2016). The clerk's office was closed from March 19, 2020, through July 9, 2020. In addition, on March 13, 2020, the President issued an emergency declaration making the COVID-19 pandemic a Federally declared disaster. In response the IRS determined that certain time-sensitive tax acts should be postponed, including the filing of Tax Court petitions, and issued several notices to reflect these determinations. The notices explained that petitions with due dates in between March 19, 2020, and July 15, 2020, received by the Court on or before July 15, 2020, would be considered timely filed. While the petition in this case was due during the period of closure, it was not filed during that period nor was it filed on or before July 15, 2020.
Notice 2020-17 (issued March 18, 2020); Notice 2020-18 (issued March 20, 2020); Notice 2020-20 (issued on March 27, 2020); and Notice 2020-23 (issued on April 9, 2020).
Under certain circumstances, a timely mailed petition may be treated as though it were timely filed. Sec. 7502(a); sec. 301.7502-1, Proced. & Admin. Regs. In this case, the petition arrived in an envelope with a ship date of "7 Aug 2020". However, the petition was not sent using either the U.S. Postal Service or a designated 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, including UPS Next Day Air Early AM, UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd Day Air Saver, UPS 2nd Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and UPS Worldwide Express.
The Court, therefore, only has jurisdiction if the petition was mailed using the U.S. Postal Service or a designated private delivery service with the Court within the 90-day period. See sec. 6213(a). Petitioners' petition was mailed using a delivery service other than the U.S. Postal Service or a designated private delivery service on August 7, 2020, which date was 158 days after the mailing of the notice of deficiency. The Court concludes that petitioner did not timely file a petition in this case and therefore, the Court lacks jurisdiction to redetermine the deficiency for tax year 2017.
While the Court appreciates petitioner's argument that elements outside of his control are to blame for the late filing of the petition, these arguments are akin to equitable tolling of the nature addressed in United States v. Wong, 575 U.S. 402 (2015), which are inapplicable in this Court insofar as the statutory filing period has long explicitly been held to be jurisdictional. The Court has no authority to extend that 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). Accordingly, since petitioner has failed to establish that the petition was mailed to or filed with this Court within the required 90-day period, this case must be dismissed for lack of jurisdiction.
Upon due consideration, it is
ORDERED that petitioners Brief in Support of Response to Order (Index #11) filed November 15, 2021, is hereby stricken from the Court's record in this case. It is further
ORDERED that petitioners Brief in Support of Response to Order (Index #12) filed November 15, 2021, is hereby stricken from the Court's record in this case. It is further
ORDERED that the Court's Order to Show Cause, served October 22, 2021, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the ground that the petition was not timely filed as to tax year 2017.