Opinion
5759-21S
09-22-2021
Leslie Nelson Zemnes & Donna Boyd Zemnes Petitioners v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
On February 24, 2021, petitioners filed the petition to commence this case, seeking review of a notice of deficiency issued to them for their 2017 tax year. On June 22, 2021, the parties filed a proposed stipulated decision. The stipulated decision indicated that, with respect to petitioners' 2017 tax year, the parties agreed that there was a deficiency due from petitioners in the amount of $6, 446.00 and there was no penalty due under the provisions of Internal Revenue Code (I.R.C.) section 6662(d).
Upon further review of the record, however, it appeared that the petition in this case was not timely filed. Accordingly, the Court issued an Order to Show Cause on August 2, 2021, directing the parties, on or before September 1, 2021, 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. In response, on August 26, 2021, 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. Although respondent indicates in his motion that petitioners object to the granting of that motion, the Court has received no response from petitioners to its Order to Show Cause.
The record in this case reflects that respondent mailed the notice of deficiency for tax year 2017 to petitioners by certified mail on November 23, 2020. Pursuant to I.R.C. sections 6213(a) and 7503, the period for filing a petition with this Court expired on February 22, 2021. The petition was received by the Court and filed on February 24, 2021. The petition was contained in an envelope bearing a FedEx Express Saver label with a ship date of February 22, 2021.
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; 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 FedEx services as designated 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 also sec. 301.7502-1(e)(2)(ii), Proced. & Admin. Regs. Thus, although petitioners shipped their petition in a timely manner, the timely mailing/timely filing rule of section 7502(a) does not apply in this case because FedEx Express Saver, which was used by petitioners, 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 petitioners' circumstances, we have no authority to extend the period for timely filing the 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). However, although petitioners may not prosecute this case in the Tax Court, petitioners are not prevented from reaching an administrative resolution of the 2017 tax liability directly with the IRS. Another remedy available to petitioners, 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 the Court's Order to Show Cause, issued August 2, 2021, is made absolute. It is further
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction, filed August 26, 2021, is granted and this case is dismissed for lack of jurisdiction. It is further
ORDERED that the parties' proposed stipulated decision, filed June 22, 2021, is stricken from the Court's record in this case.