Opinion
6792-21
11-20-2023
ERIC D. RANDLE & MELANIE RANDLE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
KATHLEEN KERRIGAN, CHIEF JUDGE
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction (motion to dismiss), filed July 2, 2021, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On July 28, 2021, petitioners filed a Response in opposition to respondent's motion to dismiss. On October 17, 2023, the parties filed a Status Report, stating the parties' agreement that: (1) the Court does not have jurisdiction of this case because the petition was not timely filed, (2) petitioners and respondent's counsel have reached an agreement concerning an administrative settlement of this case, which they acknowledge is not binding on the Internal Revenue Service (Service), and (3) respondent's counsel agrees to make a recommendation to the Service to accept that agreement so that this case may be administratively resolved. On November 8, 2023, petitioners and respondent's counsel filed a Stipulation of Settled Issues memorializing their agreement, which will be presented to the Service in order that an administrative resolution of the issues in this case may be reached.
The record in this case reflects that respondent sent the notice of deficiency for petitioners' 2015, 2016, and 2017 tax years to petitioners by certified mail on November 19, 2020. The notice of deficiency stated that the period for filing a petition with this Court expired on February 17, 2021. The petition was received by the Court and filed on February 25, 2021. The petition was contained in an envelope bearing a FedEx Express Saver label with a ship date of February 17, 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; Rochelle v. Commissioner, 293 F.3d 740, 741 (5th Cir. 2002) (per curiam), aff 'g 116 T.C. 356 (2001); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); 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, or 150 days if the notice is addressed to someone 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). 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 Express Saver, which was used by petitioners. 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.
We acknowledge that petitioners shipped their petition prior to the expiration of the 90-day period for timely filing a Tax Court petition. The timely mailing/timely filing rule of section 7502(a), however, 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. Thus the petition, received and filed on February 25, 2021, 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. See Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126; Axe v. Commissioner, 58 T.C. 256, 259 (1972).
However, although petitioners may not prosecute this case in the Tax Court, petitioners are free to pursue an administrative resolution of their 2015, 2016, and 2017 tax liabilities directly with the IRS. Also, 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 of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.