Opinion
29344-21S
01-30-2023
MARQUIS LEE BENNETT, Petitioner v. COMMISSIONER OF INTERNAL REVENUE Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
Pending before the Court in this deficiency case is respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 22, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. By Order served December 23, 2021, the Court directed petitioner to file an objection, if any, to the Motion. On January 26, 2022, petitioner electronically filed a Notice of Objection to Motion to Dismiss for Lack of Jurisdiction and two separate sets of documents under the designation, "Memorandum in Support of Notice of Objection to Motion to Dismiss for Lack of Jurisdiction."
By Notice of Deficiency dated January 25, 2021, respondent determined a deficiency in petitioner's Federal income tax for the taxable year 2018. The Petition in this case seeks redetermination of that deficiency.
For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); 1 Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6; Monge v. Commissioner, 93 T.C. 22, 27 (1989). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer at his last known address. See I.R.C. § 6212(b); Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), aff'd, 935 F.2d 1282 (3d Cir. 1991); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). In order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See I.R.C. § 6213(a); Hallmark Research Collective, slip op. at 42; Brown v. Commissioner, 78 T.C. 215, 220 (1982). We have no authority to extend this 90-day period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See I.R.C. § 7502; Treas. Reg. § 301.7502-1.
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of the mailing of the notice. See I.R.C. § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). The Notice of Deficiency in this case is addressed to petitioner at an address within the United States, and there is no indication in the record that petitioner was outside the United States at or about the time when the Notice was mailed to him.
In his Motion to Dismiss, respondent asserts that he has attached, as Exhibit B, a PS Form 3877 showing that the Notice of Deficiency in this case was sent by certified mail on January 22, 2021, to petitioner's last known address. A review of the foregoing document establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on January 22, 2021, to the address in Baldwinsville, New York, listed therein. That address is the same address that petitioner listed in the 2 Petition, and petitioner has not disputed that the Notice was sent to his last known address. We therefore take it as established for purposes of the Motion to Dismiss that the Notice was so sent.
A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The document attached as Exhibit B to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity, such as a U.S. Postal Service postmark date of January 22, 2021. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
Although the Notice of Deficiency was mailed to petitioner's last known address on January 22, 2021, the Notice itself is dated January 25, 2021, so the latter date is used for purposes of calculating the applicable 90-day filing period. See, e.g., Thomas v. Commissioner, T.C. Memo. 2020-33, *2 n.2. Consequently, the last date to file a timely petition as to the Notice of Deficiency in this case was April 26, 2021, as stated in the Notice. The Petition in this case was received and filed by the Court on August 30, 2021. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see I.R.C. § 7502, the envelope in which the Petition was mailed to the Court bears a U.S. Postal Service postmark of August 25, 2021. Thus, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this Court lacks jurisdiction to redetermine the deficiency.
Although the 90th day was Sunday, April 25, 2021, section 6213(a) provides that Sunday is not counted as the last day of the period.
In his Notice of Objection, petitioner asserts that he timely petitioned the Court on April 19, 2021. Although the document filed as the Petition in this case is dated April 19, 2021, it appears that petitioner mistakenly mailed that document to the Internal Revenue Service (IRS) rather than the Tax Court, insofar as the document was mailed to the Court in an IRS envelope together with IRS Form 3210, Document Transmittal.
While the Court is sympathetic to petitioner's circumstances, governing law recognizes no exceptions for good cause or similar grounds that would allow petitioner to proceed in this judicial forum. Indeed, the Court has no authority to extend the period provided by law for filing a 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) (holding that a petition was not timely filed with the Tax Court where it was first erroneously mailed to the IRS and not forwarded to the Tax Court until after the 90-day filing period had expired). Accordingly, the Court cannot hear petitioner's case, regardless of any reasons for the untimeliness of the Petition.
Although petitioner may not prosecute this case in the Tax Court, we note that he may continue to pursue administrative resolution of the 2018 tax liability with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970). 3
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction. 4