                           T.C. Memo. 2007-11



                     UNITED STATES TAX COURT



                 JOANNE C. AUSTIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8766-06.                 Filed January 16, 2007.



     Joanne C. Austin, pro se.

     Joan E. Steele and Melinda G. Williams, for respondent.



                       MEMORANDUM OPINION


     ARMEN, Special Trial Judge:     This deficiency case is before

the Court on respondent’s Motion To Dismiss For Lack Of

Jurisdiction, as supplemented.     Respondent moves that this case

be dismissed on the ground that the petition was not filed within
                               - 2 -

the time prescribed by section 6213(a) or section 7502.1     As

explained below, we shall grant respondent’s motion.

                            Background

     Respondent sent a notice of deficiency to petitioner by

certified mail on February 6, 2006.2     In the notice, respondent

determined a deficiency in petitioner’s Federal income tax for

the taxable year 2000 of $21,997, as well as additions to tax of

$4,298.62 under section 6651(a)(1) for failure to file a return,

$4,776.25 under section 6651(a)(2) for failure to pay tax, and

$1,010.24 under section 6654(a) for failure to pay estimated tax.

     The 90th day after respondent mailed the notice of

deficiency was Sunday, May 7, 2006.    The following day, Monday,

May 8, 2006, was not a legal holiday in the District of Columbia.

     The petition was received and filed by the Court on

Wednesday, May 10, 2006.3   The envelope in which the petition was

received bore a FedEx Express USA Airbill with handwritten

entries dated May 8, 2006 (customer handwritten label).     The

customer handwritten label specifies “FedEx Priority Overnight--

Next business morning” as the requested delivery service.

Affixed to the envelope is an electronically generated FedEx

     1
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure.
     2
         Petitioner’s last known address is not at issue.
     3
        Petitioner resided in Longmont, Colorado, at the time
that the petition was filed.
                                - 3 -

Priority Overnight service label dated May 9, 2006 (FedEx

electronically generated label).    The FedEx electronically

generated label specifies Wednesday, May 10, 2006, as the

“Deliver By” date.    The FedEx electronically generated label also

identifies a FedEx employee number and provides a tracking number

(TRK# 8461 9487 1417) for the envelope.

     Tracking information furnished by FedEx shows that the

envelope in question was picked up at 5:22 p.m. on Tuesday, May

9, 2006, and delivered at 9:09 a.m. on Wednesday, May 10, 2006.4

     As stated above, respondent filed a Motion To Dismiss For

Lack Of Jurisdiction on the ground that the petition was not

filed with the Court within the time prescribed by section

6213(a) or section 7502.

     Petitioner filed an objection to respondent’s motion to

dismiss.   In her objection, petitioner contends that her petition

was timely filed.    In this regard, petitioner states:   That on

May 4, 2006, she flew to Baltimore, Maryland, to attend a trade

show; that she stayed at the Days Inn while in Baltimore; that

she signed the petition on Sunday, May 7, 2006; that she

completed the customer handwritten label at about 8 a.m. on

Monday, May 8, 2006, and affixed it to the FedEx envelope; that

she placed the petition in the FedEx envelope, which she then


     4
        After processing the mail and other deliveries, the
Court’s mailroom clocked in the petition later that morning at
10:22 a.m.
                                - 4 -

handed to the front desk clerk of the Days Inn with the

understanding that the envelope would be picked up later that day

by FedEx; that the front desk clerk placed the envelope in the

hotel’s “pickup box”; and that, upon returning to the hotel after

the trade show later that day, she inquired about the envelope

and was told by a front desk clerk that the “pickup box” was

empty.   In sum, petitioner asserts that “There was no reason for

me to think that my FEDEX package had not been picked up on the

8th.”

     This matter was called for hearing at the Court’s motions

session in Washington, D.C.    Counsel for respondent appeared and

offered argument in support of respondent’s motion to dismiss.

In contrast, there was no appearance by or on behalf of

petitioner, nor did petitioner file a statement pursuant to Rule

50(c), the provisions of which were explained in the Court’s

order calendaring respondent’s motion for hearing.

                              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).
                                - 5 -

     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

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 petitioner on February 6, 2006.   The 90th

day thereafter was Sunday, May 7, 2006.   Thus, the last day

allowed by law to file a petition in this case was Monday, May 8,

2006, which was not a legal holiday in the District of Columbia.

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

petition was not received or filed by the Court until Wednesday,

May 10, 2006.

     Petitioner contends that her petition was timely filed

because she gave it to the front desk clerk of the Days Inn on

the morning of Monday, May 8, 2006, for pickup later that day by

FedEx.

     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
                               - 6 -

petition was mailed is within the time prescribed for filing.

Sec. 7502(a); sec. 301.7502-1, Proced. & Admin. Regs.

     Petitioner did not use the U.S. Postal Service to send her

petition to the Court.   Nevertheless, petitioner contends that

sending her petition by FedEx qualifies as timely mailing.

     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 marks 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 Priority Overnight delivery service

as a private delivery service (PDS).   However, respondent

contends that the postmark date for purposes of section 7502 is

May 9, 2006, 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
                              - 7 -

the postmark date for purposes of section 7502.5   Notice 97-26,

1997-1 C.B. at 414, provides 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.

     For items delivered by FedEx, Notice 97-26, 1997-1 C.B. at

414, provides:

          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
     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.




     5
        Although Notice 97-26, 1997-1 C.B. 413, has been modified
over the years on several occasions, it continues to provide 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.
                               - 8 -

          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.

     Petitioner contends that, by virtue of section 7502(f), her

petition should be treated as having been timely filed on the

basis of the fact that she gave it to a hotel desk clerk on

Monday, May 8, 2006, for pickup by FedEx later that day and

further because she was told by a hotel desk clerk at the end of

the day that the hotel’s “pickup box” was empty.   We disagree.

The date of May 9, 2006, appearing on the FedEx electronically

generated label, which appears to have been generated and applied

by a FedEx employee, is treated as the postmark date for purposes

of section 7502.   See sec. 7502(f)(2)(C); see also Notice 97-26,

supra.

     The circumstances here are analogous to cases in which the

U.S. Postal Service postmark is dated beyond the last date for

filing a petition.   In those cases, this and other courts have

consistently held for many years that the taxpayer is precluded

from introducing extrinsic evidence to show that the petition may

have been deposited into the mail before the last date for its

timely filing.   E.g., Shipley v. Commissioner, 572 F.2d 212, 214

(9th Cir. 1977), affg. T.C. Memo. 1976-383; Malekzad v.
                              - 9 -

Commissioner, 76 T.C. 963, 967-968 (1981); Estate of McGarity v.

Commissioner, 72 T.C. 253 (1979); Sylvan v. Commissioner, 65 T.C.

548, 551 (1975); Adkison v. Commissioner, T.C. Memo. 1992-411.

Like the presence of a U.S. Postal Service postmark, the date of

May 9, 2006, on the FedEx electronically generated label is

legally conclusive, and petitioner cannot go behind that fact.

     The result in this case is not changed by the label on the

FedEx envelope affixed and dated May 8, 2006, by petitioner.

Notice 97-26, 1997-1 C.B. at 414, provides as follows:

          (2) If an item has a label generated and applied
     by a customer, the date marked on that label is treated
     as the postmark date for purposes of § 7502 if the item
     is received within the normal delivery time. (Normal
     delivery time is one day for FedEx Priority Overnight
     and FedEx Standard Overnight, or two days for FedEx 2
     Day.) If an item is not delivered within the normal
     delivery time, the person required to file the document
     or to make the payment must establish (a) that the item
     was actually either given to, or picked up by, a FedEx
     employee on or before the due date and (b) the cause of
     the delay in delivery of the document or payment.
     These rules are similar to the rules for United States
     mail that has a postmark made other than by the United
     States Postal Service. (See Treas. Reg.
     § 301.7502-1(c)(1)(iii)(b).)[6]
     The date on the label is May 9, 2006. The petition was

delivered the next day on May 10, 2006, within the normal time


     6
        This second type of label presupposes software and/or
hardware provided by FedEx to its customer. See Notice 97-26,
supra. Petitioner has not even alleged either that she was
provided with such software and/or hardware or that she prepared
the label using such software and/or hardware. In addition, and
as previously stated, the FedEx USA Airbill, which is not the
type of label specified in Notice 97-26, supra, was prepared by
hand; this fact further strengthens our conclusion that the FedEx
electronically generated label was generated and affixed by a
FedEx employee and not by petitioner.
                                - 10 -

for FedEx Priority Overnight delivery.     Thus, the date on the

label is treated as the postmark date for purposes of section

7502.     See Notice 97-26, supra.

     The Days Inn where petitioner left the petition for pickup

by FedEx is not a PDS.     See Notice 2004-83, supra.   Thus, the

handing-over of the petition to the Days Inn front desk clerk on

May 8, 2006, does not help petitioner.7

        Finally, petitioner argues that she did nothing wrong in

handing over her petition to the Days Inn front desk clerk on May

8, 2006.     However, even if we were inclined to do so, the Court

cannot rely on general equitable principles to expand the

statutorily prescribed period for filing the petition.     See and

compare Woods v. Commissioner, 92 T.C. 776, 784-785 (1989).




     7
        Compare Estate of Cranor v. Commissioner, T.C. Memo.
2001-27, where we held that a petition sent by FedEx 4 days
before the last filing date was timely mailed, even though it was
not delivered, but rather returned to the sender because the
sender, who had properly addressed the airbill, had erroneously
checked the “Hold Saturday” box thereon.
                              - 11 -

     Under these circumstances, we conclude that the petition was

not filed within the requisite period prescribed by section

6213(a).   Consequently, this case must be dismissed for lack of

jurisdiction.8

     To reflect the foregoing,

                                           An order granting

                                 respondent’s motion as

                                 supplemented and dismissing

                                 this case for lack of

                                 jurisdiction because of an

                                 untimely filed petition will

                                 be entered.




     8
        Although petitioner cannot pursue her case in this Court,
she is not without a judicial remedy. Specifically, petitioner
may pay the tax, file a claim for refund with the Internal
Revenue Service, and, if her 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).
