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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).
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Last modified: November 10, 2007