## Facts

- The Commissioner issued Vernon and Charlotte Correia a statutory notice of deficiency on April 9, 1993.
- Under 26 U.S.C. § 6213(a), the Correias had 90 days (until July 8, 1993) for the Tax Court to receive a petition for redetermination.
- On July 8, 1993, the Correias tendered their petition to Federal Express for delivery to the Tax Court.
- The Tax Court received the petition on July 9, 1993, one day after the statutory period expired.
- The Tax Court dismissed the petition for lack of jurisdiction as untimely.
- On appeal, the Correias argued (1) 26 U.S.C. § 7502 treated their courier delivery as timely filed, and (2) the Tax Court violated due process by notifying the Commissioner on its own initiative that the petition was late.

## Issues

1. Whether 26 U.S.C. § 7502’s “timely mailing as timely filing” rule applies when a Tax Court petition is sent by a private delivery service rather than the U.S. Postal Service.
2. Whether the Tax Court violated due process by raising the petition’s untimeliness on its own initiative and informing the Commissioner.

## Decision

- The Ninth Circuit affirmed the Tax Court’s dismissal.
- The court held the § 6213(a) 90-day filing period is jurisdictional, and the petition was undisputedly received late.
- The court held § 7502 applies only to documents delivered by “United States mail,” and therefore does not cover delivery by Federal Express.
- The court rejected the due process claim because subject-matter jurisdiction cannot be created by waiver or consent; the Tax Court could address untimeliness on its own initiative.

## Legal Principles

- A Tax Court petition challenging a notice of deficiency must be filed within the 90-day period in 26 U.S.C. § 6213(a); timely filing is a jurisdictional prerequisite.
- The “timely mailing as timely filing” rule in 26 U.S.C. § 7502 is limited to documents delivered by the U.S. Postal Service, as confirmed by the statute’s text and implementing regulations.
- Courts may not extend § 7502 to private courier services based on policy arguments; changes to the statutory filing rule must come from Congress.
- Because subject-matter jurisdiction is nonwaivable, a court may raise a jurisdictional defect on its own initiative without violating due process.

## Conclusion

The Ninth Circuit held that a Tax Court petition delivered by Federal Express is not protected by § 7502’s postmark rule; because the petition was received after the § 6213(a) deadline, the Tax Court lacked jurisdiction and properly dismissed the case.


Correia v. Commissioner, 58 F.3d 468 (9th Cir. 1995)