Opinion
21135-21S
01-05-2022
Kenneth Richard Bell & Patricia L. Bell Petitioners v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
MAURICE B. FOLEY CHIEF JUDGE.
On June 11, 2021, petitioners filed the petition to commence this case, seeking review of a notice of deficiency issued to them for their 2018 tax year. On October 22, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction on the ground that the petition was not filed within the time prescribed by the Internal Revenue Code. On November 16, 2021, petitioners filed an Objection To Motion To Dismiss for Lack of Jurisdiction.
The Tax Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In addition, jurisdiction must be proven affirmatively, and a taxpayer invoking our jurisdiction bears the burden of proving that we have jurisdiction over the taxpayer's case. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
In a case seeking redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice of Procedure; Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (I.R.C.) section 6213(a) provides that the petition must be filed with the Court within 90 days after a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., it will be considered timely filed. See I.R.C. sec. 7502(a)(1). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977). The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
The record in this case reflects that a notice of deficiency for tax year 2018 was sent to petitioners' last known address by certified mail on March 9, 2021. Based on that mailing date, the last day to timely file a petition with the Court was June 7, 2021. As discussed above, the Court received and filed the petition on June 11, 2021. The petition was received in an envelope with a United States Postal Service Priority Mail Express label bearing a mailing date of June 10, 2021. Both the filing and mailing dates are after the last day petitioners could timely file a petition with respect to the notice of deficiency on which this case is based.
In their objection to the motion to dismiss, petitioners appear to concede that the petition was not timely filed or mailed. Petitioners, however, argue that this case should not be dismissed for untimeliness. Petitioners contend that the late filing was caused by the frustrating delays they encountered in communicating with the IRS while trying to resolve their tax issues without the necessity of filing a Tax Court petition.
While the Court is sympathetic to petitioners' circumstances, we have no authority to extend the period for timely filing the petition "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972). The record establishes that the petition in this case was not timely filed. However, although petitioners may not prosecute this case in the Tax Court, petitioners may continue to pursue administrative resolution of their 2018 tax liability directly with the IRS, possibly by means of a request for audit reconsideration. Another remedy potentially available to petitioners is to pay the determined amounts, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioners may file a suit for refund in the appropriate Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.