Opinion
11425-23
09-01-2023
ROGER LEE, 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 (motion to dismiss), filed July 28, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On August 30, 2023, petitioner filed a Letter in response to respondent's Motion to Dismiss for Lack of Jurisdiction (response).
The record reflects that a notice of deficiency for petitioner's 2021 tax year was sent by certified mail to petitioner's last known address on March 27, 2023. The notice of deficiency stated that the last day to file a petition with the Tax Court was June 26, 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; Hoffenberg v. Commissioner, 905 F.2d 665 (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); 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). If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., it will be considered timely filed. See I.R.C. sec. 7502(a)(1). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
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, 89T.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).
In this case, based upon the notice of deficiency's mailing date of March 27, 2023, the 90-day period for filing a Tax Court petition expired on June 26, 2023. The Court received and filed the petition on July 13, 2023, which was 108 days after the notice was mailed to petitioner. The petition was received in an envelope bearing a postmark dated July 7, 2023, which was 102 days after the mailing of the notice of deficiency.
In his response to the motion to dismiss, petitioner states that he was unaware of the limited timeframe within which to file a petition and the petition was late because he was waiting for a corrected Form 1099 to attach to his petition. Petitioner further states that he was the victim of identity theft and requests that the Court consider the merits of his claim. However, if we lack jurisdiction because of an untimely filed petition, we cannot reach the merits of a case.
Here, the record establishes that the petition 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).
However, although petitioner may not prosecute this case in this Court, petitioner may still pursue an administrative resolution of the 2021 tax liability directly with the IRS. Also, another remedy potentially available to petitioner, if feasible, is to pay the determined amounts, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring a suit for refund in the appropriate Federal 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 petitioner's Letter, filed August 30, 2023, is recharacterized as a Response to Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.