Opinion
11763-22S
08-10-2023
EWA I. KILIAN & PAWEL H. KILIAN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
On June 17, 2022, respondent filed in the above-docketed case a Motion To Dismiss for Lack of Jurisdiction, on the ground that the petition was not filed within the time prescribed by section 6213(a) or 7502 of the Internal Revenue Code (I.R.C.). Respondent attached to the motion a copy of a certified/registered mail list (U.S. Postal Service (USPS) Form 3877), as evidence of the fact that a notice of deficiency for the taxable year 2018, dated December 6, 2021, had been sent to petitioners by registered on December 6, 2021, to an address in Poland.
The petition herein was filed with the Court on May 16, 2022, which date is 161 days after the date of the notice of deficiency for tax year 2018 mailed to petitioners. The petition had been received by the Court in an envelope indicating that it had been sent from Poland, with a priority ("Priorytet") designation, by registered mail through the Polish mail system. Tracking information for the registered mail number shows that the item was posted on May 5, 2022; departed from Poland on May 9, 2022; was accepted in the destination country by the USPS in New York, New York, on May 11, 2022; and was delivered on May 16, 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 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. Rule 13(c), Tax Court Rules of Practice and Procedure; Edwards v. Commissioner, 791 F.3d 1, 4 (D.C. Cir. 2015); Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). In this regard, section 6213(a), I.R.C., provides that the petition must be filed with the Court 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). The Court has no authority to extend this 90-day (or 150-day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of a Tax Court petition, a provision which becomes relevant where that date is later than the date computed with reference to the mailing date. Sec. 6213(a), I.R.C. Likewise, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
A petition is ordinarily "filed" when it is received by the Tax Court in Washington, D.C. See, e.g., Leventis v. Commissioner, 49 T.C. 353, 354 (1968). Although the Court may sit at any place within the United States, its principal office, its mailing address, and its Clerk's office are in the District of Columbia. I.R.C. § 7445; Rule 10. And a document that is electronically filed with the Court is filed when it is received by the Court as determined in reference to where the Court is located. Nutt v. Commissioner, No. 15959-22, 160 T.C. (May 2, 2023).
In the present case, the applicable 150-day time period for filing a petition with this Court expired on May 5, 2022. However, the petition was not filed within that period.
Petitioners were served with a copy of respondent's motion to dismiss and, on June 21, 2022, filed an objection. Therein, petitioners took the position that the petition was timely mailed and sought to rely on section 7502, I.R.C. Specifically, after quoting regulations promulgated under section 7502, I.R.C., pertaining to timely postmarks made other than by the USPS (see, e.g., section 301.7502-1(c)(1)(iii) (B)(1), Proced. & Admin. Regs.), the objection contended: "Due to the fact that our petition was mailed and postmarked May 5, 2022, and according to the above, we request please for our petition to be considered as petition filed timely."
Unfortunately, the regulatory provision relied upon by petitioners cannot assist in the situation here involving a foreign postmark. To explain in more detail, section 7502, I.R.C., governs the procedures under which a petition that is allegedly mailed on or before the expiration of the statutory filing period is treated as having been timely filed. The statute applies to documents sent by U.S. mail and to documents sent by private delivery services that have been explicitly designated by the Government for that purpose. Sec. 7502(a), (f), I.R.C. As such, the relevant law places the burden and risk on the taxpayer to establish timely mailing for purposes of section 7502, I.R.C., not on the Commissioner to show untimeliness. See sec. 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs. In that connection, and to augment the express requirements given in the statute, regulations set forth a framework for evaluating particular mailing scenarios, as follows. First, assuming that a postage prepaid hurdle has been crossed, regulations provide that if an envelope bears a legible USPS postmark, that mark is considered conclusive absent proof of registered or certified mailing, or shipment by a designated private delivery service (PDS), on a contrary date, "regardless of when the document or payment is deposited in the mail". Sec. 301.7502-1(c)(1)(iii), (2), (3), Proced. & Admin. Regs.
The exception for registered or certified mail, or shipment by a designated PDS, is likewise further elucidated by regulations. As to certified or registered mail, the regulations specify that the date of registration of a document or the date "postmarked by the postal employee to whom the document * * * is presented" on the sender's certified mail receipt "is treated as the postmark date of the document" and will thus eliminate the risk of an untimely postmark on an envelope. Sec. 301.7502-1(c)(2), Proced. & Admin. Regs.; see also sec. 301.7502-1(e)(2)(i), Proced. & Admin. Regs. As to a designated PDS, the regulations and additional administrative guidance treat the date of delivery to the PDS, as recorded in the PDS's electronic database, as the equivalent to proof of registered or certified mailing. Sec. 301.7502-1(c)(3), (e)(2)(ii), Proced. & Admin. Regs.; Notice 2016-30, 2016-18 I.R.B. 676.
Alternatively, in absence of a legible USPS postmark or showing of delivery by a designated PDS, section 301.7502-1(c)(1)(iii)(B)(1), Proced. & Admin. Regs., provides that if a document in a mailing envelope bearing a timely, legible postmark made other than by the USPS is received not later than the time when a document so mailed and so postmarked by the USPS would ordinarily be received, the document is considered timely mailed. If the envelope bears a timely non-USPS postmark but is received after the time when a document so mailed and so postmarked by the USPS would ordinarily be received, section 301.7502-1(c)(1)(iii)(B)(2), Proced. & Admin. Regs., specifies that the document is treated as having been received at the time when a document so mailed and so postmarked would ordinarily be received if the person required to file the document establishes: (1) That the document was actually deposited in the U.S. Mail before the last collection of mail from the place of deposit on or before the last date prescribed for filing; (2) that the delay in receiving the document was due to a delay in transmission of the U.S. Mail; and (3) the cause of the delay. In the case of both a USPS postmark and a non-USPS mark, the USPS postmark controls, and the other is disregarded. Sec. 301.7502-1(c)(1)(iii)(B)(3), Proced. & Admin. Regs.
Conversely, as can be gleaned from the regulatory language above, it is well settled that the provisions of section 7502, I.R.C., do not apply to foreign postmarks. Sec. 7502(b), I.R.C.; Sarrell v. Commissioner, 117 T.C. 122, 126 (2001) (collection case); Pekar v. Commissioner, 113 T.C. 158, 167-168 (1999) (deficiency case); Cespedes v. Commissioner, 33 T.C. 214 (1959) (deficiency case). Section 301.7502-1(c) (1)(ii), Proced. & Admin. Regs., provides: "Section 7502 does not apply to any document or payment that is deposited with the mail service of any other country." Furthermore, while taxpayers residing in foreign jurisdictions can utilize the benefits of section 7502, I.R.C., by sending documents via a designated PDS, as noted previously petitioners did not do so here. See sec. 7502(f), I.R.C.; Notice 2016-30, 2016-18 I.R.B. 676.
Instead, as explained by this Court:
The provisions of section 7502 generally contemplate that the envelope is deposited with the domestic mail service of the U.S. Postal Service. Sec. 7502(a) (2)(B); cf. sec. 7502(f). A document is deposited in the mail in the United States when it is deposited with the domestic mail service of the U.S. Postal Service. Sec. 301.7502-1(c) (1) (ii), Proced. & Admin. Regs. Section 752.13 of the U.S. Postal Service International Mail Manual, Issue 37, June 7, 2010, states with regard to foreign registered mail: "All mail registered by the country of origin must be handled in the domestic First-Class Mail mailstream from the
exchange office to the office of delivery." Thus, once the foreign registered mail arrives at the exchange office, such mail is considered to have been deposited with the domestic mail service of the U.S. Postal Service for eventual delivery to its destination address.
Boultbee v. Commissioner, T.C. Memo. 2011-11 (fn. ref. omitted).
Regrettably, here while the Polish postmark is timely on May 5, 2022, such is a foreign postmark that is not applicable to help in petitioners' situation. Rather, the tracking for the registered mail number clearly shows that the item was not accepted within the domestic mail service of the USPS until May 11, 2022, which is six days too late for section 7502, I.R.C., to operate to petitioners' benefit.
Hence, while the Court is sympathetic to petitioners' situation and understands the unintentional character of the inadvertence here, as well as the challenges of the circumstances faced and the good faith efforts made, the fundamental nature of the filing deadline precludes the case from going forward. As a Court of limited jurisdiction, the Court is unable to offer any remedy or assistance when a petition is filed late. Rather, the Court is barred from considering in any way petitioners' case or the correctness of petitioners' claims. Unfortunately, governing law recognizes no reasonable cause or other applicable exception to the statutory deadline, and the allegation that the petition arrived in the USPS mailstream six days late remains unrebutted.
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 petitioners have 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. The Court would, however, encourage petitioners to consider or continue working administratively through the Internal Revenue Service (IRS), which, being entirely separate from the Tax Court, may be able to offer alternative avenues for relief, not dependent on the existence of a Tax Court case, such as audit reconsideration or a refund action.
The premises considered, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction. It is further
ORDERED that petitioners' Motion To Proceed Remotely, filed June 21, 2022, is denied as moot.