                  T.C. Summary Opinion 2002-119



                     UNITED STATES TAX COURT



      RICHARD M. SCHAFER & DIANE M. WOOTEN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7612-02S.            Filed September 16, 2002.



     Richard M. Schafer and Diane M. Wooten, pro sese.

     Paul R. Zamolo and Melinda G. Williams, for respondent.


     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time the petition was filed.   The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.    Unless otherwise

indicated, subsequent section references are to the Internal
                               - 2 -

Revenue Code in effect for the year in issue, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

This matter is before the Court on respondent’s Motion to Dismiss

for Lack of Jurisdiction, filed May 21, 2002.   As explained in

detail below, we shall grant respondent’s motion to dismiss.

Background

     On January 18, 2002, respondent mailed to petitioners a

notice of deficiency.   In the notice, respondent determined a

deficiency in petitioners’ Federal income tax for the taxable

year 1999 in the amount of $4,564.00, and an accuracy-related

penalty under section 6662(a) in the amount of $912.80.

     On Monday, April 22, 2002, the Court received and filed

petitioners’ petition for redetermination in respect of the

aforementioned notice of deficiency.   At the time of filing the

petition, petitioners resided in Rocklin, California.   The

petition was received in a United Parcel Service (UPS) “Next Day

Air” envelope bearing tracking number 1Z 003 2XW 01 3045 5533.

The mailing label on the envelope identified the sender as Mail

Boxes Etc. of Rocklin, California.

     As stated above, respondent filed a Motion to Dismiss for

Lack of Jurisdiction.   In the motion, respondent asserts that

this case should be dismissed for lack of jurisdiction on the

ground that the petition was not filed within the time prescribed

by section 6213(a) or section 7502.    Respondent’s motion states
                                 - 3 -

that respondent contacted UPS by telephone, submitted the

tracking number appearing on the envelope bearing the petition in

this case, and was informed that the envelope was delivered to

UPS on Friday, April 19, 2002.

       On June 12, 2002, petitioners filed a Notice of Objection to

respondent’s motion.    In their objection, petitioners assert that

the petition should be deemed to have been timely filed on the

ground the petition was delivered to Mail Boxes Etc. on April 18,

2002.    Attached to petitioners’ Notice of Objection is a Mail

Boxes Etc. parcel shipping order which indicates that petitioners

delivered the petition to Mail Boxes Etc. on April 18, 2002.

       Pursuant to notice, respondent’s motion to dismiss 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.    During the hearing,

respondent offered as an exhibit a document titled “Tracking

Detail” that respondent obtained from UPS’s internet web site.

The document shows that the UPS item assigned tracking number 1Z

003 2XW 01 3045 5533 was delivered to UPS in Rocklin, California,

at 2:34 p.m., on Friday, April 19, 2002.

       There was no appearance at the hearing by or on behalf of

petitioners.    However, the Court conducted a telephone conference
                               - 4 -

call with the parties on July 30, 2002, at which time petitioners

stated that they agreed with the facts as set forth above.

Discussion

     The Court's jurisdiction to redetermine a deficiency depends

upon the issuance of a valid notice of deficiency and a timely

filed petition.   See 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.        A

notice of deficiency generally is sufficient if it is mailed to

the taxpayer's last known address.     See sec. 6212(b)(1).   In

turn, the taxpayer has 90 days (or 150 days if the notice is

addressed to a person outside the United States) from the date

that the notice is mailed to file a petition for redetermination

of the deficiency.   See sec. 6213(a).

     Section 7502, which sets forth the so-called timely

mailing/timely filing rule, generally provides that, if a

petition is filed with the Court after the expiration of the

statutory 90-day filing period, it is nevertheless deemed to be

timely filed if the date of the U.S. Postal Service postmark

stamped on the envelope bearing the petition is on or before the

last date for filing the petition.     See sec. 7502(a)(1), (c)(2);

sec. 301.7502-1, Proced. & Admin. Regs.     Section 7502(f) provides
                                    - 5 -

similar treatment with respect to petitions delivered to the

Court by a private delivery service (PDS) designated by the

Commissioner.

     The Commissioner recognizes UPS Next Day Air as a designated

PDS within the meaning of section 7502(f).           See Notice 2001-62,

2001-40 I.R.B. 307.   Notice 97-26, 1997-1 C.B. 413, establishes

special rules to determine the date that will be treated as the

postmark date for purposes of section 7502.          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 purpose of § 7502.

                        *   *   *    *   *   *   *

     Airborne, DHL, and UPS

          The date on which an item is given to Airborne,
     DHL, or UPS is recorded electronically to the data base
     of these designated PDSs. Accordingly, the date
     recorded in the electronic data base of these
     designated PDSs is treated as the postmark date for
     purposes of § 7502.

          For items that are delivered after their due
     dates, there is a presumption that the postmark date is
     the day that precedes the delivery date by an amount of
     time that equals the amount of time it would normally
     take for an item to be delivered under the terms of the
     specific type of delivery service used (e.g., two days
     before the actual delivery date for a two day delivery
     service). This presumption applies to items sent by
                               - 6 -

     taxpayers and, in appropriate cases, items sent by the
     Government.

          Taxpayers who wish to overcome this presumption
     will need to provide information that shows that the
     date recorded in the electronic data base is on or
     before the due date. For example, a taxpayer could
     obtain such information in the form of a written
     confirmation produced and issued by the designated PDS
     * * *.

     As previously stated, respondent mailed the notice of

deficiency to petitioners on January 18, 2002.    Accordingly, the

90-day period for filing a timely petition with the Court expired

on Thursday, April 18, 2002.

     The petition was delivered to the Court by UPS Next Day Air

on Monday, April 22, 2002.   Consistent with Notice 97-26, 1997-1

C.B. at 414, a presumption arises that the postmark date for the

petition was either Friday, April 19, 2002, or Saturday, April

20, 2002.   This presumption is confirmed by the UPS tracking

detail which states that the envelope bearing the petition was

delivered to UPS on Friday, April 19, 2002.    Petitioners have not

presented any documentation to the contrary.    In this regard, the

Mail Boxes Etc. parcel shipping order that petitioners attached

to their Notice of Objection shows only that petitioners

delivered the petition to Mail Boxes Etc. on April 18, 2002.

Mail Boxes Etc. is not a designated PDS and was simply acting as

petitioners’ agent in this matter.     As the record shows that Mail

Boxes Etc. delivered the petition to UPS on April 19, 2002, it

follows that the petition was not filed with the Court within the
                              - 7 -

time prescribed in sections 6213(a) and 7502(a).   Consequently,

this matter must be dismissed for lack of jurisdiction.1

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To give effect to the foregoing,


                               An order granting respondent’s

                          motion and dismissing this case for

                          lack of jurisdiction will be entered.




     1
        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 (1970).
