Petition Mailed to Tax Court by FedEx Express Saver Third Business Day is not Timely Filed if not received Within the 90 Day Notice Period – Los Angeles Income Tax Planning and Income Tax Litigator Attorney Bruce Givner

by Bruce Givner on December 18, 2012

On April 8, 2011, the Internal Revenue Service (IRS) sent a notice of deficiency to Mr. and Mrs. Scaggs’ last known address. On July 7, 2011, 90 days after the notice of deficiency was sent, the Scaggs mailed a petition to the Tax Court by FedEx Express Saver Third Business Day. The petition was received and filed by the Tax Court on July 12, 2011. The IRS objected on the grounds it was not timely filed and filed a motion to dismiss with the Tax Court.

A taxpayer has 90 days from the date the IRS mails a notice of deficiency to file a petition with the Tax Court to redetermine the deficiency. The 90 day period cannot end on a Saturday, Sunday, or legal holiday in the District of Colombia. IRC Section 6212(a).

A mailed petition will be considered timely filed with the Tax Court if it is postmarked by either the U.S. Postal Service or a designated private delivery service before the expiration of the 90 day period. IRC 7502.

For FedEx, the list of approved designated private delivery services included FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Priority, and FedEx International First. IRB Notice 2004-83, 2004-2 C.B. 1030.

As FedEx Express Saver Third Business Day is not an approved designated private delivery service, the Scaggs’ petition to the Tax Court is not timely filed, and the case is dismissed for lack of jurisdiction. Scaggs v. Commissioner, T.C. No. 16342-11, T.C. Memo 2012-258 (09/10/2012).

Givner & Kaye focuses on sophisticated income tax planning and compliance, tax litigation and procedure, estate planning, and asset protection plans for individuals and businesses in Beverly Hills, Calabasas, West Los Angeles, Hollywood, and other areas of Los Angeles, Orange, Ventura, San Bernardino, Riverside and Santa Barbara Counties. Call Los Angeles Estate Planning and Asset Protection Plan Attorneys Givner & Kaye at (310) 207-8008 today.

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