Respondent mailed a notice of deficiency to petitioners’ last known address
on April 8, 2011. The 90th day after respondent mailed the notice was Thursday,
July 7, 2011, which was not a legal holiday in the District of Columbia. The
petition was received by the Court and filed on July 12, 2011. The envelope in
which the petition was received bears a Federal Express (FedEx) U.S. Airbill with
handwritten entries dated July 7, 2011 (FedEx Airbill). The delivery service
selected on the FedEx Airbill is “Express Saver Third business day”. . . .
Section 6212(a) expressly authorizes the Commissioner, after determining a
deficiency, to send a notice to the taxpayer by certified or registered mail. The
taxpayer, in turn, has 90 days from the date that the notice is mailed (not counting
Saturday, Sunday, or a legal holiday in the District of Columbia as the last day) to
file a petition in this Court for a redetermination of the deficiency. The notice was mailed on April 8, 2011, and the 90th day thereafter was
Thursday, July 7, 2011, which was not a legal holiday in the District of Columbia.
See sec. 7503; Rule 25(b). Therefore, July 7, 2011, was the last date for petitioners
to timely file a petition in the Tax Court. However, the petition
was not received and filed by the Court until Tuesday, July 12, 2011.
A timely mailed petition may be treated as though it were timely filed. §
7502(a). Thus, if a petition is received by the Court after the expiration of the
90-day period, it is nevertheless deemed to be timely filed if the date of the U.S.
Postal Service postmark stamped on the envelope in which the petition was mailed
is within the time prescribed for filing.
Petitioners did not use the U.S. Postal Service to send their petition to the
Court. Nevertheless, sending a petition by designated private delivery service may
also be treated as timely mailing. § 7502(f)(1). ...
In Notice 2004-83, 2004-2 C.B. 1030, the Commissioner
updated the list of companies and classes of delivery service that constitute
designated private delivery services for purposes of § 7502. Thus, effective
January 1, 2005, and insofar as FedEx is concerned, the list of designated private
delivery services was as follows: FedEx Priority Overnight, FedEx Standard
Overnight, FedEx 2 Day, FedEx International Priority, and FedEx International
First. The 2004 notice expressly states that FedEx is not designated with respect to
any type of delivery service not expressly identified. Thus, “Express Saver Third
business day” service is not a designated private delivery service. See Raczkowski
v. Commissioner, T.C. Memo. 2007-72 (holding in part that the timely
mailing/timely filing rule of § 7502 does not apply to “UPS Ground” service
because such service was not a designated private delivery service under the 2004
Under these circumstances, we conclude that the petition was not filed within
the requisite period prescribed by § 6213(a). Consequently, this case must be
dismissed for lack of jurisdiction.
In so holding we acknowledge that the result may appear harsh; however, the
Court cannot rely on general equitable principles to expand the statutorily prescribed
time for filing a petition. Although petitioners cannot pursue their case in this Court, they are not without a
judicial remedy. Specifically, petitioners may pay the tax, file a claim for refund
with the IRS, and, if their claim is denied, sue for a refund in
the appropriate Federal District Court or the U.S. Court of Federal Claims.