Opinion
10598-23
03-12-2024
THOMAS KOCHTITZKY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, as supplemented. Respondent moves that this case be dismissed on the grounds (1) that no notice of deficiency, or other determination that would confer jurisdiction on this Court, was issued to petitioner for taxable years 2022 and 2023; and (2) that with respect to a notice of deficiency issued to petitioner for tax year 2021, that the Petition was not filed within the period prescribed in the Internal Revenue Code (I.R.C.). Petitioner opposes the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Like all federal courts, the Tax Court is a court of limited jurisdiction. 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 deficiency case, this Court's jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition within 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). Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082 (9th Cir. 2020); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit). 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).
Respondent asserts that the 2021 notice of deficiency upon which this case is based was sent by certified mail to petitioner's last known address. A PS Form 3877 attached to the Motion to Dismiss establishes that respondent sent the notice of deficiency to petitioner by certified mail on February 1, 2023, to an address in Boulder, CO. While petitioner states in his objection that his receipt of the notice of deficiency was delayed by "an address change," he does not challenge respondent's assertion that the Boulder, CO, address was his last-known address.
Where a notice of deficiency bears a date later than its actual date of mailing, it is treated as having been mailed on the later date for purposes of the 90-day period for filing a petition with the Court. See Loyd v. Commissioner, T.C. Memo. 1984-172; Jones v. Commissioner, T.C. Memo. 1984- 171. Here, although the notice of deficiency was mailed on February 1, 2023, the notice bears a date of February 6, 2023. The 90th day after the deemed date of mailing was Sunday, May 7, 2023; 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. Hence, the last date to file a timely petition as to the notice of deficiency in this case was May 8, 2023, as printed on the notice. The Petition in this case was electronically filed on July 3, 2023. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction as to tax year 2021.
Additionally, in the Petition and First Amendment to Petition filed in this case, petitioner indicated that he was disputing a notice of deficiency issued as to tax year 2022 or 2023. The record reflects that no notice of deficiency or other determination that would confer jurisdiction on this Court was issued to petitioner for tax years 2022 or 2023, and petitioner does not dispute respondent's assertions that the Court lacks jurisdiction as to these years.
While we are sympathetic to petitioner's circumstances, Congress has limited our jurisdiction in the deficiency context to those cases in which a petition is timely filed, and we have no authority to extend the deadline in section 6213(a). See Hallmark Rsch. Collective, 159 T.C. at 166-67; see also Axe v. Commissioner, 58 T.C. 256, 259 (1972) ("We have no authority to extend the period provided by law for filing a petition with the Tax Court whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period."). Nevertheless, we note that the dismissal of this case does not preclude petitioner from pursuing administrative resolution of his 2021 tax liability directly with the Internal Revenue Service (IRS). Another remedy potentially available to petitioner, if feasible, is to pay the determined amounts 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).
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, as supplemented, is granted in that this case is dismissed for lack of jurisdiction as to tax years 2022 and 2023 because no notice of deficiency or determination was issued to petitioner for those years, and in that this case is dismissed as to tax year 2021 because the Petition was not filed within the period prescribed by I.R.C. section 6213(a).