Opinion
21588-22S
06-27-2023
ALFRED MITCHELL GABBIN & STACEY LAUREN GABBIN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy Special Trial Judge
This case was calendared for trial at the Court's May 30, 2023, Washington, District of Columbia Trial Session of the Court.
The petition in this case was filed electronically on October 7, 2022, at 11:09 a.m. Petitioners seek review of a notice of deficiency (notice) dated July 8, 2022, and issued to them for tax year 2020. The notice stated the last day for filing a timely Tax Court petition as to that notice would expire on October 6, 2022.
The Court issued an Order to Show Cause served on March 24, 2023, seeking the parties' positions as to why the Court should not dismiss this case for lack of jurisdiction on the ground the petition was not timely filed. On April 4, 2023, the Commissioner filed a response to the Order to Show Cause and a Motion to Dismiss for Lack of Jurisdiction arguing that this case should be dismissed for lack of jurisdiction upon the ground that the petition was not filed within the time prescribed by section 6213(a).
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In support of his motion, the Commissioner attached a certified mailing list, United States Postal Service Form 3877, Firm Mailing Book for Accountable Mail, purporting to show that the notice was mailed, by certified mail on July 8, 2022, to petitioners at their last known address in Ashburn, Virginia. This copy of PS Form 3877 did not contain a United States postmark confirming the date of mailing. The Commissioner also provided tracking information from the United States Postal Service showing that the notice (1) arrived at the Boston, Massachusetts Distribution Center on July 9, 2022; (2) was made available for pickup by petitioners in Ashburn, Virigina on July 11, 2022; and (3) was picked up by petitioners on July 27, 2022.
The Commissioner asserts that the notice was mailed from the IRS Service Center in Andover, Massachusetts on July 8, 2022, based on United States Postal Service tracking history showing that each notice was processed as received at 12:59 a.m. on July 9, 2022.
On April 28, 2023, the Court filed petitioners' objection to the Commissioner's motion. Petitioners argued that July 9, 2022, should be treated as the mailing date for purposes of determining the last day to file a timely petition to this Court. Petitioners also state that the delay in receipt by them from July 11, 2022, to July 27, 2022, negatively impacted their ability to respond and deprived them of their right to file a petition in a timely fashion. Finally, petitioners argue that the statutory deadline to file their petition with this Court "should be equitably tolled due [to the] actual mailing date of July 9, 2022, or alternatively because of the delay in delivery of the notice to petitioners. If the Court permits equitable tolling, the petition is timely filed." Citing Boechler, P.C. v. Commissioner, 142 S.Ct. 1493, 1501 (2022), petitioners maintain that "the United States Supreme Court has held in tax related cases that the deadline to file a petition is [not a] jurisdictional deadline [which may be] subject to equitable tolling." Consequently, the petition in this case was filed timely.
On May 11, 2023, the Court served an Order requesting the Commissioner file a supplement to his motion and attach corroborative evidence which sufficiently substantiated his position that the notices were mailed on July 8, 2022. The Commissioner supplemented his motion on May 24, 2023, by including a declaration from an IRS employee who managed the Andover, MA service center that mailed the notice to the petitioners and attaching a more legible PS Form 3877. The Declaration of R. Carbonneau (Carbonneau Declaration) provides that, as Department Manager, Mr. Carbonneau managed the employees who processed outgoing mail from the Andover service center to the United States Postal Service. It further provides the standard operating procedures used by the IRS Andover service center in mailing notices of deficiency to taxpayers. The Carbonneau Declaration concludes by stating that the PS Form 3877 attached to the motion and supplement conforms to the form his office would receive from the local post office after a notice of deficiency is mailed. Attached to the supplemental motion is another copy of PS Form 3877 which shows a postmark date of July 8, 2022, indicating the date the notice was mailed to both petitioners. Although requested to do so by Court Order served May 25, 2023, petitioners failed to file a response to the Commissioner's supplement to his motion, filed May 24, 2023, urging the Court to grant the motion to dismiss.
The Commissioner states that the copy of Form 3877 attached to his supplement is a copy of the original copy "being reproduced at the highest photocopies contrast setting, which revealed the visible USPS postmark bearing the date July 8, 2022."
Like other federal courts, we are a Court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. § 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Our jurisdiction in deficiency cases is predicated on a valid notice of deficiency and a timely petition. §§ 6213, 7442; Rules 13, 20; Dees v. Commissioner, 148 T.C. 1, 3-4 (2017). Under section 6213(a), a petition must be filed within 90 days after the notice of deficiency is mailed. If the last day falls on a Saturday, Sunday, or legal holiday in the District of Columbia, the deadline is extended to the next day that is not a Saturday, Sunday, or legal holiday. § 7503. The period within which to file a petition cannot be extended by the Court, and we must dismiss a case for lack of jurisdiction if the petition is not filed within the prescribed time. Rule 25(b)(2)(C); Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. No. 6 (Nov. 29, 2022); Blum v. Commissioner, 86 T.C. 1128, 1131 (1986). A petition is ordinarily "filed" when it is received by the Tax Court in Washington, D.C. See, e.g., Leventis v. Commissioner, 49 T.C. 353, 354 (1968). Although the Court may sit at any place within the United States, its principal office, its mailing address, and its Clerk's office are in the District of Columbia. § 7445; Rule 10. And a document that is electronically filed with the Court is filed when it is received by the Court as determined in reference to where the Court is located. Nutt v. Commissioner, 160 T.C. No. 10 (May 2, 2023).
A notice mailed to taxpayers at their last known address is sufficient regardless of whether the taxpayers actually receive the notice. I.R.C. § 6212(b); Monge v. Commissioner, 93 T.C. 22, 33 (1989). Petitioners do not dispute that the notice was mailed to them at their last known address. The notice and Form 3877 both state that the notice was mailed to the same address petitioners listed as their address of record on their petition. Further, 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 PS Form 3877 attached to the Commissioner's motion to dismiss, as supplemented, appears to be properly completed and bears satisfactory indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
In this case, the record reflects that the notice was mailed to petitioners on July 8, 2022. The time for filing a petition with this Court expired October 6, 2022, but the petition was electronically filed on October 7, 2022. The record shows that the petition was not timely filed.
Accordingly, upon due consideration of the foregoing, it is
ORDERED that the Court's Order to Show Cause, issued on March 24, 2023, is hereby made absolute. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed April 4, 2023, and as supplemented on May 24, 2023, is granted and this case is dismissed for lack of jurisdiction on the ground the petition was not timely filed.