T.C. Memo. 2007-72
UNITED STATES TAX COURT
RONALD S. RACZKOWSKI, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 20557-06. Filed March 29, 2007.
Ronald S. Raczkowski, pro se.
Blake W. Ferguson and Ronald J. Goldstein, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This case is before the Court
on respondent’s Motion To Dismiss For Lack Of Jurisdiction, filed
November 17, 2006. Respondent moves to dismiss this case on the
ground that the petition was not filed within the time prescribed
- 2 -
by section 6213(a) or section 7502.1 As explained below, we
shall grant respondent’s motion to dismiss.
Background
Petitioner resided in Chapel Hill, North Carolina, when the
petition was filed in this case.
On Friday, July 7, 2006, respondent mailed a notice of
deficiency to Ronald S. Raczkowski (petitioner). In the notice,
respondent determined deficiencies in petitioner’s Federal income
taxes for the taxable years 2003 and 2004 in the amounts of
$40,634 and $7,994, respectively. The notice was sent to
petitioner by certified mail at his home address. Petitioner
received the notice of deficiency on Tuesday, July 11, 2006.
The first page of the notice of deficiency states as
follows: “Last Day to File a Petition With The United States Tax
Court: October 5, 2006”.
On Tuesday, October 10, 2006, petitioner filed a petition
with this Court seeking a redetermination of the deficiencies
determined by respondent in the notice of deficiency. The
petition, which is dated Friday, October 6, 2006, was delivered
to the Court by United Parcel Service of America, Inc. (UPS), a
private delivery service (PDS), in an “Express Pad Pak”
indicating that it had been sent by “UPS Ground” service.
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at the time that the petition
was filed, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
- 3 -
The address appearing on the petition is petitioner’s home
address; i.e., the same address to which the notice of deficiency
was sent. The return address appearing on the UPS label on the
“Express Pad Pak” in which the petition was sent to the Court is
Pak Mail Center 470, 11312 US Route 15-501 North, Chapel Hill,
North Carolina 27517. Pak Mail Center is an authorized agent for
UPS.
In his petition, petitioner expressly references the July 7,
2006 notice of deficiency, and he attached a copy of that notice
to his petition as an exhibit.
As indicated, respondent filed a Motion To Dismiss For Lack
Of Jurisdiction on November 17, 2006. In the motion, respondent
contends that dismissal for lack of jurisdiction is required
because petitioner failed to file a timely petition. Respondent
attached to the motion as an exhibit electronic tracking
information from UPS regarding the aforementioned “Express Pad
Pak”. That information indicates that the “Express Pad Pak” was
received by UPS at 3:40 p.m. on October 6, 2006.
Petitioner filed a Notice Of Objection to respondent’s
motion on December 11, 2006. Therein, petitioner states: “The
filing of the petition was placed in the post on the day
designated for filing.” No further information is provided, and
no documentation is attached as an exhibit.
- 4 -
Thereafter, by Order dated December 29, 2006, the Court
directed petitioner to supplement his Notice Of Objection by
setting forth who prepared the petition, who placed the
petition in the mail, the location where the petition
was deposited into the mail, and the circumstances
surrounding the purported mailing of the petition to
the Tax Court on or before October 5, 2006, which
petitioner appears to allege in numbered paragraph 1.
of his Objection and * * * attach to that supplement
copies of any documents establishing the timely mailing
of the petition to the Court on or before October 5,
2006.
On January 23, 2007, petitioner responded to the
aforementioned Order by filing a Supplement To Objection. In it,
petitioner states as follows:
The petition was prepared by myself, Ronald S.
Raczkowski. I placed the petition in the mail at the
Estes Road post office on the evening of October 5,
2006. The mail apparently did not get picked up until
October 6, 2006. I do not have any documents which
establish the above situation.
A hearing on respondent’s motion was held in Washington,
D.C., on March 7, 2007. At that time, counsel for respondent
appeared and argued in support of the pending motion. In
contrast, there was no appearance by or on behalf of petitioner,
nor did petitioner file a written statement pursuant to Rule
50(c), the provisions of which were noted by the Court in its
Order calendaring respondent’s motion for hearing.
- 5 -
Discussion
The Tax Court is a court of limited jurisdiction, and we may
exercise our jurisdiction only to the extent authorized by
Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). This
Court’s jurisdiction to redetermine a deficiency depends on the
issuance of a valid notice of deficiency and a timely filed
petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27
(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).
Section 6212(a) expressly authorizes the Commissioner, after
determining a deficiency, to send a notice of deficiency to the
taxpayer by certified or registered mail. Indeed, if the notice
is mailed to the taxpayer at the taxpayer’s last known address,
actual receipt of the notice by the taxpayer is immaterial. See
King v. Commissioner, 857 F.2d 676, 679 (9th Cir. 1988), affg. 88
T.C. 1042 (1987); Yusko v. Commissioner, 89 T.C. 806, 810 (1987);
Frieling v. Commissioner, 81 T.C. 42, 52 (1983). The taxpayer,
in turn, has 90 days (or 150 days if the notice is addressed to a
person outside of the United States) from the date the notice of
deficiency is mailed to file a petition in this Court for a
redetermination of the deficiency. Sec. 6213(a). A petition is
timely if it is filed with the Court within 90 days after the
notice of deficiency is mailed. Id. By virtue of section 7502,
a petition that is timely mailed is deemed to be timely filed.
- 6 -
There is no dispute in this case that respondent mailed the
notice of deficiency to petitioner on July 7, 2006, or that the
90th day following the mailing of the notice of deficiency in
this case was Thursday, October 5, 2006. Thus, the last day
allowed by law to file a petition in this case was Thursday,
October 5, 2006, which was not a legal holiday in the District of
Columbia. See sec. 6213(a). The petition in this case was not
filed with the Court until October 10, 2006.
Petitioner contends that the petition was timely mailed.
However, the fact that petitioner dated the petition October 6,
2006, which date is the 91st day after the mailing of the notice
of deficiency, belies that contention. Nevertheless, we shall
assume arguendo that petitioner postdated the petition and
address his contention.2
In his Supplement To Objection, petitioner alleges that he
“placed the petition in the mail at the Estes Road post office on
the evening of October 5, 2006.” However, there are two problems
with this contention.
First, the record conclusively demonstrates that the
petition was dispatched to, and arrived at, the Court through a
PDS, namely, UPS. It was not sent to the Court through the U.S.
mail.
2
We should emphasize that there is no persuasive evidence
whatsoever that petitioner did postdate the petition.
- 7 -
Second, electronic tracking information from UPS
demonstrates that the “Express Pad Pak” containing the petition
was received by UPS at 3:40 p.m. on October 6, 2006, the 91st day
after the mailing of the notice of deficiency.
If we assume, arguendo, that petitioner delivered the
petition to Pak Mail Center, UPS’s authorized agent, “on the
evening of October 5, 2006”, but that the “Express Pad Pak” was
not acknowledged as received by UPS until 3:40 p.m. on October 6,
2006, we would still be constrained to grant respondent’s motion
and dismiss this case for lack of jurisdiction.3
The timely mailing/timely filing rule of section 7502
applies not only if the taxpayer sends a petition through the
United States mail but also if the taxpayer sends the petition
using a PDS designated by the Commissioner. Insofar as UPS is
concerned, only UPS Next Day Air, UPS Next Day Air Saver, UPS 2nd
Day Air, UPS 2nd Day Air A.M., UPS Worldwide Express Plus, and
UPS Worldwide Express have been designated by the Commissioner as
a PDS. See sec. 7502(f); Notice 2004-83, 2004-2 C.B. 1030. UPS
3
We should emphasize that there is no persuasive evidence
whatsoever that petitioner delivered the petition to UPS’s agent
“on the evening of October 5, 2006”. Undoubtedly, petitioner
received a receipt from Pak Mail Center for the cost incurred in
having the “Express Mail Pac” delivered to the Court in
Washington, D.C.; yet he tells us that “I do not have any
documents which establish the above situation.” We could infer,
therefore, that a receipt or similar documentation would be
unfavorable to petitioner’s case. See Wichita Terminal Elevator
Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), affd. 162 F.2d 513
(10th Cir. 1947).
- 8 -
Ground has not been designated by the Commissioner as a PDS.
Notice 2004-83, supra. Thus, the timely mailing/timely filing
rule of section 7502 does not apply to UPS Ground service. See
Notice 2004-83, supra; Notice 97-26, 1997-1 C.B. 413.
Even if the timely mailing/timely filing rule of section
7502 did apply to UPS Ground service, we would still be
constrained to grant respondent’s motion and dismiss this case
for lack of jurisdiction. Pursuant to Notice 97-26, supra, the
date on which an item is recorded electronically to the database
of UPS is treated as the postmark date for purposes of section
7502. Extrinsic evidence would not be admissible to contradict
that postmark date. Austin v. Commissioner, T.C. Memo. 2007-11.
In view of the foregoing, we hold that the petition in this
case was not timely filed pursuant to either section 6213(a) or
section 7502. Accordingly, we shall grant respondent’s Motion To
Dismiss For Lack Of Jurisdiction, and we shall dismiss this case
for lack of jurisdiction on the ground that the petition was not
timely filed.4
4
We note that although petitioner cannot pursue a case in
this Court, he is not without a judicial remedy. Thus,
petitioner may pay the determined liabilities, file a claim for
refund with the Internal Revenue Service, and, if the claim is
denied, sue for a refund in the appropriate Federal District
Court or the United States Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
- 9 -
To reflect the foregoing,
An Order dismissing
this case for lack of
jurisdiction will be entered.