Opinion
8357-24
09-13-2024
MARLON S. CULQUI & ANDREA S. GORDILLO, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
On July 1, 2024, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed with respect to tax year 2021. Respondent attached to the motion a copy of a postmarked United States Postal Service Form 3877 as evidence of the fact that the notice of deficiency was sent to petitioners by certified mail on February 12, 2024. The notice of deficiency was dated February 12, 2024, and states that the last day for filing a timely Tax Court petition as to that notice would expire on May 13, 2024.
The petition was filed on May 22, 2024, which date is 100 days after the notice of deficiency for tax year 2021 was mailed to petitioners. The petition was received by the Court in an envelope bearing a United States Postal Service postmark of May 15, 2024, which date is 93 days after the date the notice of deficiency for tax year 2021 was mailed to petitioners.
This Court is a court of limited jurisdiction. This Court's jurisdiction to determine a deficiency in income tax depends on the issuance of a valid notice of deficiency and a timely filed petition. Hoffenberg v. Commissioner, 905 F.2d 665, 666 (2d Cir. 1990) (per curiam), aff'g T.C. Memo. 1989-676; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, I.R.C. section 6213(a) provides that the petition must be filed with the Court 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The Court has no authority to extend this 90 day (or 150 day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with this Court expired on May 13, 2024. However, the petition was not filed within that 90 day period.
On September 3, 2024, petitioners filed a Letter by Jhonatan Mondragon, in which he states that he mailed petition on May 13, 2024.
Generally, a timely mailed petition may be treated as though it were timely filed. I.R.C. sec. 7502(a). Thus, if a petition is received by the Court after the expiration of the 90-day (or 150-day, if applicable) period, it is nevertheless deemed to be timely if the date of the U.S. Postal Service postmark stamped on the envelope in which the petition was mailed is within the time prescribed for filing. Although extrinsic evidence is sometimes allowed to prove the date of mailing where an envelope containing a Tax Court petition lacks a postmark or the postmark is illegible, such evidence is irrelevant where the envelope bears a legible U.S. Postal Service postmark after the 90th day prescribed for filing a timely petition. See Shipley v. Commissioner, 572 F.2d 212, 214 (9th Cir. 1977); Kahle v. Commissioner, 88 T.C. 1063, 1068-1069 (1987); Wiese v. Commissioner, 70 T.C. 712, 715 (1978). Accordingly, petitioners are not permitted to use extrinsic evidence to prove the petition was timely filed because that petition was received by the Court in an envelope that bears a legible, untimely (May 15, 2024) postmark.
The record in this case establishes that the petition was not timely filed and, accordingly, the Court is obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing. See Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners cannot prosecute this case in this Court, petitioners may still pursue an administrative resolution of petitioners' 2021 tax liability directly with the IRS. In addition, if financially feasible, petitioners may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (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.