Opinion
6535-23
06-26-2023
ALFRED GALENO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed June 14, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On June 19, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that a notice of deficiency for petitioner's 2020 tax year was sent by certified mail to petitioner's last known address on January 3, 2023. The notice of deficiency stated that the last day to file a petition with the Tax Court was April 3, 2023. Petitioner electronically filed the petition to commence this case on April 29, 2023.
This 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; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); 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, or 150 days if the notice is addressed to a person outside the United States, 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. The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff 'g 88 T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89 T.C. 806, 808 (1987). 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).
Here, based upon the notice of deficiency's mailing date of January 3, 2023, the 90-day period to timely file a Tax Court petition expired on April 3, 2023. As mentioned above, petitioner electronically filed his petition on April 29, 2023, which was 116 days after the notice of deficiency was mailed.
In his objection to the motion to dismiss, petitioner requests that the Court deny respondent's motion to dismiss because (1) after receiving the notice of deficiency, he responded to the IRS asking them to abate the substantial tax understatement penalty and (2) the reply from the IRS was not received until after the 90-day period for timely filing a petition had expired. The law is well settled, however, that once a notice of deficiency has been issued, further administrative contact with the IRS does not alter or suspend the running of the 90-day period.
The record establishes that the petition in this case was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. While we are sympathetic to petitioners' circumstances, we have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
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.