Opinion
3166-23S
07-12-2023
TERESA M. SCHUCK, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
The Petition in the above-docketed case seeks redetermination of a notice of deficiency for tax year 2020. On April 25, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code (I.R.C.). On June 2, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction (Objection) and a Letter. Petitioner's Letter is in the nature of a Motion to Restrain Assessment or Collection. Petitioner attached to her Letter a bill from the Internal Revenue Service (IRS) for tax year 2020, along with a screenshot from an IRS website indicating that her account may be subject to lien or levy.
The record reflects that a notice of deficiency, dated November 7, 2022, for petitioner's 2020 tax year was sent by certified mail to petitioner's last known address on November 7, 2022. The notice of deficiency lists February 6, 2023, as the last date to file a petition in this Court. On February 9, 2023, the Court received and filed the Petition, which arrived in a FedEx envelope bearing a "FedEx Express Saver" label dated February 7, 2023.
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 redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§ 6212 and 6213; Rule 13(a) and (c), Tax Court Rules of Practice and Procedure; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 14 (Nov. 29, 2022). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer's last known address by certified or registered mail. See I.R.C. § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition must be filed within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the date on which the Commissioner mails a valid notice of deficiency. See I.R.C. § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Rsch. Collective, slip op. at 42; see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it was timely filed. See I.R.C. § 7502; Treas. Reg. § 301.7502-1.
Here, based on the date of the notice of deficiency issued to petitioner for her 2020 tax year, the last day to timely file (or timely mail) a petition was February 6, 2023. As discussed above, the Court received and filed the Petition on February 9, 2023, in a FedEx envelope bearing a "FedEx Express Saver" label dated February 7, 2023. Both the filing and label dates are beyond the 90-day filing period.
In her Objection petitioner asserts that she deposited her Petition at a FedEx Office store on February 6, 2023. However, even if we assumed that the FedEx label date was February 6, 2023, the Petition would still be untimely under I.R.C. section 7502 for the below reasons.
I.R.C. section 7502(f) extends the "timely mailed, timely filed" rule of I.R.C. section 7502 to certain private delivery services. But this extension applies only if the delivery service in question has been "designated" by the Secretary for purposes of section 7502. I.R.C. § 7502(f)(2). The Secretary may so designate a private delivery service only if the Secretary determines that it is at least as timely and reliable as the United States mail and that it meets other criteria specified in the statute. See I.R.C. § 7502(f)(2)(A)-(D). In Notice 2016-30, 2016-18 I.R.B. 676, effective April 11, 2016, the IRS listed all private delivery services that have been designated by the Secretary under section 7502(f). The FedEx delivery services included on this list are as follows: 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 explicitly states that "FedEx . . . [is] not designated with respect to any type of delivery service not enumerated in this list." Thus, FedEx Express Saver, which does not appear on the list, is not a designated private delivery service. See Eichelburg v. Commissioner, T.C. Memo. 2013-269 (holding that the "timely mailed, timely filed" rule did not apply to "FedEx Express Saver" service because that service had not been designated under I.R.C. section 7502(f)); Scaggs v. Commissioner, T.C. Memo. 2012-258 (holding that the "timely mailed, timely filed" rule did not apply to "FedEx Express Saver Third business day" service because that service had not been designated under section I.R.C. 7502(f)); Raczkowski v. Commissioner, T.C. Memo. 2007-72 (holding that the "timely mailed, timely filed" rule did not apply to "UPS Ground" service because that service had not been designated under section 7502(f)).
Because petitioner sent the Petition using FedEx Express Saver, and that service is not a designated private delivery service, petitioner could not have availed herself of the "timely mailed, timely filed" rule of section 7502(a) and (f). And, as noted above, her Petition was not filed until February 9, 2023-that is, after the expiration of the 90-day period. Consequently, the Petition was not filed within the time prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
We are sympathetic to petitioner's circumstances. But we have no authority to extend the time for filing a petition with the Tax Court for redetermination of a deficiency "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). Nevertheless, while petitioner cannot pursue her case in this Court, she may continue to pursue administrative resolution of the 2020 tax liability with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
The foregoing considered, it is
ORDERED that petitioner's Letter, filed June 2, 2023, is recharacterized as a Motion to Restrain Assessment or Collection or to Order Refund of Amount Collected (Motion to Restrain). It is further
ORDERED that petitioner's above-referenced Motion to Restrain, filed June 2, 2023, is denied. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.