Opinion
276-22S
12-15-2023
GAYNELL C. JOHNSON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 11, 2022. Petitioner filed an Objection to this Motion on September 8, 2023. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
On November 4, 2019, respondent sent a Notice of Deficiency to petitioner's last known address. The Notice determined a deficiency in petitioner's federal income tax and a section 6662(a) accuracy-related penalty for the taxable year 2017.
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.
On January 8, 2022, the Court received petitioner's electronically filed Petition to commence this case. The Petition seeks review of the Notice of Deficiency issued to petitioner for 2017.
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 §§ 6212 and 6213; Rule 13(a) and (c); Rochelle v. Commissioner, 293 F.3d 740 (5th Cir. 2002) (per curiam), aff'g 116 T.C. 356 (2001); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126 (2022). Generally, a notice of deficiency will be deemed valid for this purpose if it is sent to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition must be filed within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Rsch. Collective, 159 T.C. at 166-67. However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1.
On November 4, 2019, the Notice of Deficiency for 2017 was mailed to petitioner's last known address, which is within the United States. The last date to file a petition with this Court as to the Notice was therefore February 3, 2020. See § 6213(a).
The 90th day after the date of mailing was Sunday, February 2, 2020; however, section 6213(a) provides that Saturdays, Sundays, and legal holidays in the District of Columbia are not counted as the last day of the 90-day period.
As noted above, the Petition in this case was electronically filed on January 8, 2022. The Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
While petitioner cannot pursue her case in this Court, she may continue to pursue administrative resolution of the 2017 tax liability with the Internal Revenue Service (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).
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 11, 2022, is granted, and this case is dismissed for lack of jurisdiction because the Petition was not filed within the period prescribed by I.R.C. section 6213(a).