Opinion
8232-23S
12-01-2023
KAREN MORRIS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On June 20, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed. Respondent attached to the motion a copy of the certified mail receipt as evidence of the fact that the notice of deficiency on which this case is based was sent to petitioner by certified mail on February 1, 2023.
The petition was filed on May 10, 2023, which date is 98 days after the notice of deficiency for tax year 2021 was mailed to petitioner. The notice of deficiency states that the last day to file a petition with the Unites States Tax Court was May 8, 2023. The petition was received by the Court in a FedEx Express Saver envelope.
Like all federal courts, the Tax Court is a court of limited jurisdiction. 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 deficiency case, this Court's jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). Rule 13(a), (c), Tax Court Rules of Practice and Procedure; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit).
In the present case, the time for filing a petition with this Court expired on May 8, 2023. However, the petition was not filed within that 90 day period.
On July 24, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction, in which petitioner argues that she mailed the petition on 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 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 under section 7502. It provides that the sending of a petition by a private delivery service may be treated as timely mailed. Section 7502(f)(1) provides 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, the Commissioner includes among designated private delivery services 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 further provides that "FedEx * * * [is] not designated with respect to any type of delivery service not enumerated in this list." See sec. 301.7502-1(c)(3), Proced. & Admin. Regs. FedEx Express Saver, which petitioner used to mail the petition to the Court, is not a designated private delivery service under Notice 2016-30. See also Eichelburg v. Commissioner, T.C. Memo. 2013-269, at *2-3 (holding that the timely mailing / timely filing provision of section 7502 did not apply where the taxpayer's Tax Court petition was shipped via FedEx Express Saver). Accordingly, the timely mailing / timely filing provision of section 7502 is inapplicable in this case.
The record in this case establishes that the Petition was not timely filed and, accordingly, the Court is obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing. See Hallmark Rsch. Collective, 159 T.C. at 167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners cannot prosecute this case in this Court, petitioners may still pursue an administrative resolution of petitioner's 2021 tax liability directly with the IRS.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction because the Petition was not filed within the period prescribed by I.R.C. section 6213(a).