Opinion
8698-23
09-05-2023
WILLIAM W. MCCANDLESS, JR. & URSULA BROWN MCCANDLESS, Petitioners 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 July 21, 2023. Petitioners were ordered to file an objection, if any, to this Motion.
On August 30, 2023, petitioners filed with the Court a document titled "Motion to Dismiss." We note that petitioners did not offer proper grounds for dismissal therein, and we will accordingly recharacterize the document as petitioners' Objection to respondent's Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
The record reflects that on January 30, 2023, respondent sent a Notice of Deficiency to petitioners' last known address. The Notice was sent by certified mail and determined a deficiency in petitioners' federal income tax for the taxable year 2020. The last date to file a petition with this Court as to the Notice was May 1, 2023. See § 6213(a).
The 90th day after the date of mailing was Sunday, April 30, 2023; however, Internal Revenue Code 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 petition as to the Notice of Deficiency for 2020 was May 1, 2023. See also I.R.C. § 7503.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On May 18, 2023, a date after the last date for timely filing in response to the notice of deficiency, the Court received and filed the Petition to commence this case. The Petition was delivered to the Court in an envelope that did not bear a postmark.
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); Pugsley v. Commissioner, 749 F.2d 691 (11th Cir. 1985); Hallmark Research Collective v. Commissioner, 159 T.C. 126 (2022); see also Allen v. Commissioner, 2022 WL 17825934 (11th Cir. 2022). 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 Research Collective, supra.
Under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1. Those circumstances are not present here. As an initial matter, the envelope in which the Petition was mailed does not bear a postmark. And although petitioners assert that the petition was mailed timely, it is dated May 8, 2023 - a date after the last day to timely file a petition with this Court. The Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
In consideration of the foregoing, it is
ORDERED that the document filed on August 30, 2023, at Docket Entry No. 9 shall be recharacterized as petitioners' Objection to respondent's Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed July 21, 2023, is granted, and this case is dismissed for lack of jurisdiction.