                       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.
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       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.
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     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.
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                            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.
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     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.
