                  T.C. Summary Opinion 2010-117



                     UNITED STATES TAX COURT



     ROGELIO AND STEPHANIE DARLENE MARTINEZ, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17698-09S.              Filed August 17, 2010.



     Rogelio Martinez and Stephanie Darlene Martinez, pro sese.

     Thomas R. Mackinson and Nicholas Doukas, for respondent.



     ARMEN, Special Trial Judge:   This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any




     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended, and all Rule
references are to the Tax Court Rules of Practice and Procedure.
                               - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     This matter is before the Court on respondent’s Motion To

Dismiss For Lack Of Jurisdiction, filed April 26, 2010.

Respondent moves to dismiss this case on the ground that the

petition was not filed within the time prescribed by section

6213(a) or section 7502.   As explained below, we shall grant

respondent’s motion.

                            Background

     At the time that the petition was filed, Rogelio and

Stephanie Darlene Martinez (petitioners) resided in the State of

California.

     On April 20, 2009, respondent sent petitioners a notice of

deficiency.   The notice of deficiency, which was sent to

petitioners by certified mail addressed to them at their last

known address, determined a deficiency of $2,091 in their income

tax for 2006.   Petitioners received the notice of deficiency.

     The first page of the notice of deficiency included the

following statement:   “If you want to contest this determination

in court before making any payment, you have 90 days from the

date of this letter * * * to file a petition with the United

States Tax Court for a redetermination of the deficiency.”   Also

included on the first page of the notice of deficiency was the
                                - 3 -

following statement:   “Last Day to File a Petition With the

United States Tax Court:   JUL 20, 2009”.

     The 90th day after respondent mailed the notice of

deficiency was Sunday, July 19, 2009.   The following day, Monday,

July 20, 2009, was not a legal holiday in the District of

Columbia.

     The petition, which was sent by FedEx Express (FedEx), was

received and filed by the Court on Thursday, July 23, 2009.      The

envelope containing the petition bore two shipping labels.     The

first shipping label, which had been placed inside a clear

plastic pouch adhered to the envelope, had been electronically

generated by the sender using FedEx Ship Manager (customer-

generated label).2   The second shipping label, which had been

affixed to the outside of the clear plastic pouch, had been

electronically generated by FedEx (FedEx-generated label).

     As relevant, the customer-generated label identifies the

sender as Roger Martinez3 and lists a business address in

Bakersfield, California, and a business telephone number

associated with that address.   The customer-generated label also

identifies the addressee as the United States Tax Court and lists

     2
        According to the FedEx Web site, FedEx Ship Manager is
software that “gives you [the customer] a full range of shipping
functions right from your PC”.
http://www.fedex.com/us/software/.
     3
        Presumably, Roger Martinez and petitioner Rogelio
Martinez are one and the same.
                                 - 4 -

the Court’s correct address and ZIP Code in Washington, D.C.4      In

addition, the customer-generated label lists a “Ship Date” of

“20JUL09” and a “TRK#” ending in 0915.    Finally, the customer-

generated label specifies “2DAY” as the class of service

requested by the shipper and lists the date of “WED-22JUL” as the

anticipated date of delivery.5

     The FedEx-generated label lists the same “TRK#” and the same

“2DAY” class of service requested by the shipper as does the

customer-generated label.   However, immediately opposite a FedEx

employee number, the FedEx-generated label lists the date of

“21JUL09” as the ship date, along with the date of “THU-23JUL” as

the anticipated date of delivery.

     For the envelope in question, the tracking feature of the

FedEx Web site lists a “Ship date” of July 21, 2009, and a

“Delivery date” of July 23, 2009.    As relevant, the “Shipment

Travel History” of the tracking feature provides the following

detail:




     4
        Oddly, however, the customer-generated label lists as the
addressee’s telephone number that of the U.S. Coast Guard
(Eleventh District, Pacific Area Command) in Alameda, California.
     5
        FedEx offers several classes of delivery service within
the United States. “FedEx 2Day” generally offers delivery in 2
business days by 4:30 p.m. See http://www.fedex.com.
                                       - 5 -
 Date/Time                  Activity                             Location
 Jul 20, 2009   6:34   PM   Shipment information sent to FedEx   [no entry]
 Jul 21, 2009   3:32   PM   Picked up                            Bakersfield, CA
 Jul 21, 2009   5:48   PM   Left FedEx origin facility           Bakersfield, CA
 Jul 23, 2009   5:55   AM   At dest sort facility                Washington, DC
 Jul 23, 2009   8:28   AM   Delivered[6]                         Washington, DC


     As stated above, respondent filed a Motion To Dismiss For

Lack Of Jurisdiction on April 26, 2010, on the ground that the

petition was not filed with the Court within the time prescribed

by section 6213(a) or section 7502.             A hearing on respondent’s

motion was held in Fresno, California, on June 14, 2010.

                                    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.              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 that the notice of


     6
        After processing the mail and other deliveries, the
Court’s Intake Section clocked the petition in later that morning
at 9:36 a.m.
                                 - 6 -

deficiency is mailed to file a petition with this Court for a

redetermination of the contested deficiency.     Sec. 6213(a).

     There is no dispute in this case that respondent mailed the

notice of deficiency to petitioners on April 20, 2009.7     The 90th

day thereafter was Sunday, July 19, 2009.     Thus, the last day

allowed by law to file a petition in this case was Monday, July

20, 2009, which day was not a legal holiday in the District of

Columbia.   See secs. 6213(a), 7503.     However, as previously

stated, the petition was not received and filed by the Court

until Thursday, July 23, 2009.    Thus, the petition was not timely

filed, and respondent’s motion to dismiss must be granted unless

the petition is deemed to have been timely filed by virtue of

having been timely mailed.

     A timely mailed petition may be treated as though it were

timely filed.   Sec. 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.

Id.; sec. 301.7502-1, Proced. & Admin. Regs.




     7
        See Magazine v. Commissioner, 89 T.C. 321, 327 n.8 (1987)
(holding that Postal Service Form 3877 represents direct evidence
of the date of mailing of the notice of deficiency); see also
Clough v. Commissioner, 119 T.C. 183, 187-188 (2002) (overruling
various challenges by a taxpayer to the introduction into
evidence by the Commissioner of Postal Service Form 3877).
                                 - 7 -

     Petitioners did not use the U.S. Postal Service to send

their petition to the Court.   Nevertheless, sending a petition by

private delivery service (PDS) may be treated as timely mailing.

In that regard, petitioners appear to rely on the customer-

generated label showing a “Ship Date” of “20JUL09” and the

acknowledgment by FedEx that shipment information was sent to it

on July 20, 2009, at 6:34 p.m.

     Section 7502(f)(1) provides 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 in paragraph
          (2)(C) by any designated delivery service.

     Paragraph (2)(C) of section 7502(f) requires that a

designated delivery service “[record] electronically to its data

base, kept in the regular course of its business, or mark on the

cover in which any item referred to in this section is to be

delivered, the date on which such item was given to such trade or

business for delivery”.

     In Notice 2004-83, 2004-2 C.B. 1030, the Commissioner

designated (inter alia) FedEx 2Day delivery service as a PDS.

However, respondent contends that the postmark date for purposes

of section 7502 is not July 20, 2009, but rather July 21, 2009,
                              - 8 -

which would make the petition 1 day late and would necessitate

the granting of respondent’s motion to dismiss.

     Notice 97-26, 1997-1 C.B. 413, establishes special rules for

deliveries by a PDS to determine the date that will be treated as

the postmark date for purposes of section 7502.8   Notice 97-26,

1997-1 C.B. at 414, states in pertinent part:

     SPECIAL RULES FOR DETERMINING POSTMARK DATE: Section
     7502(f)(2)(C) requires a PDS to either (1) record
     electronically to its data base (kept in the regular
     course of its business) the date on which an item was
     given to the PDS for delivery or (2) mark on the cover
     of the item the date on which an item was given to the
     PDS for delivery. Under § 7502(f)(1), the date
     recorded or the date marked under § 7502(f)(2)(C) is
     treated as the postmark date for purposes of § 7502.

     This notice provides rules for determining the date
     that is treated as the postmark date for purposes of
     § 7502. There is one set of rules for the designated
     PDSs that qualified for designation because their
     “postmark date” is recorded electronically to their
     data bases. There is another set of rules for the
     designated PDS that qualified for designation because
     its “postmark date” is marked on the cover of an item.

     As applicable to items delivered by FedEx, Notice 97-26,

1997-1 C.B. at 414, states in relevant part:

     An electronically generated label is applied to the
     cover of all items delivered by FedEx, including those
     items that already have an airbill attached. The date
     on which an item is given to FedEx for delivery is
     marked on the label. There are two types of labels
     (which are distinguishable from each other). One type


     8
        Although Notice 97-26, 1997-1 C.B. 413, has been modified
over the years on several occasions, it continues to state the
special rules, as applicable to domestic service, to determine
the date that will be treated as the postmark date for purposes
of sec. 7502. See Notice 2004-83, 2004-2 C.B. 1030.
                                 - 9 -

       of label is generated and applied to an item by a FedEx
       employee. The other type of label is generated (using
       computer software and/or hardware provided by FedEx)
       and applied to an item by a customer.

       The date that will be treated as the postmark date for
       purposes of § 7502 is determined under the following
       rules:

            (1) If an item has a label generated and applied
            by a FedEx employee, the date marked on that label
            is treated as the postmark date for purposes of
            § 7502, regardless of whether the item also has a
            label generated and applied by the customer.

       In the instant case, the envelope in question bears two

shipping labels:    (1) An electronic label generated by the

customer, i.e., the shipper, and placed inside the clear plastic

pouch affixed to the envelope; and (2) an electronic label

generated by a FedEx employee and affixed to the outside of the

clear plastic pouch.    Under these circumstances, Notice 97-26

states that the FedEx-generated label controls.     1997-1 C.B. at

414.    And, significantly, the “postmark” date on the FedEx-

generated label reflects a date after the last day to timely file

a petition with this Court.

       The acknowledgment by FedEx that shipment information was

sent to it on July 20, 2009, at 6:34 p.m. is unavailing for at

least two reasons.     First, it is the date on the electronic label

that controls, not the date that the shipper notifies FedEx that

he or she has an envelope for shipment and requests that it be

picked up.    Austin v. Commissioner, T.C. Memo. 2007-11; see also

Lindstrom v. Commissioner, T.C. Memo. 2007-243.     Second,
                              - 10 -

petitioners have failed to show that 6:34 p.m. was before the

cutoff time for east coast shipments and that pickup by FedEx on

July 20, 2009, would have even been possible.

                            Conclusion

     The date on the FedEx-generated label is July 21, 2009.9

That date is therefore treated as the postmark date for purposes

of section 7502.   See Austin v. Commissioner, supra.

     In view of the foregoing, we hold that the petition was not

filed within the requisite period prescribed by section 6213(a)

and that this case must therefore be dismissed for lack of

jurisdiction.10




     9
        It should be recalled that the petition was delivered to
the Court 2 days later on July 23, 2009, i.e., within the normal
delivery time for FedEx 2Day service.
     10
        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
Internal Revenue Service, and, if their claim is denied, sue for
a 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).
                        - 11 -

To reflect the foregoing,



                                  An order granting

                             respondent’s motion and

                             dismissing this case for lack

                             of jurisdiction will be

                             entered.
