Opinion
19333-21
08-17-2023
JONI GABRIEL MYLLARI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On June 28, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code (I.R.C.). On November 30, 2022, the Court received a Letter from petitioner. The Court received a second Letter from petitioner on December 21, 2022. However, petitioner's Letters do not address the merits of respondent's Motion or dispute the jurisdictional facts asserted therein.
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 the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The record in this case reflects that a notice of deficiency dated February 16, 2021, for tax year 2018 was sent to petitioner's last known address by certified mail on February 16, 2021. The 90-day period for filing a timely petition with the Court under I.R.C. section 6213(a) expired on May 17, 2021. The Court received and filed the Petition on May 28, 2021. The Petition arrived in an envelope bearing a "FedEx Standard Overnight" label with a shipping date of May 27, 2021. Both the filing and shipping dates are beyond the 90-day filing period.
The Tax Court is a court of limited jurisdiction, and we may exercise that jurisdiction only to the extent authorized by Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). This Court's jurisdiction to redetermine a deficiency depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a), (c), Tax Court Rules of Practice and Procedure; Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082 (9th Cir. 2020); Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 14 (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). The Court has no authority to extend the statutory period for filing a timely petition in response to a notice of deficiency. Organic Cannabis Found., LLC, 962 F.3d at 1092; Hallmark Rsch. Collective, 159 T.C., slip op. at 42; Axe v. Commissioner, 58 T.C. 256, 259 (1972). The Petition in this case was not timely filed, and we are obliged to dismiss this case for lack of jurisdiction.
Although petitioner may not prosecute this case in the Tax Court, nothing precludes petitioner from continuing to pursue administrative resolution of the 2018 tax liability directly with the Internal Revenue Service (IRS). It also may be possible for petitioner to pay the tax, file a claim for refund with the IRS, and, if the claim is denied (or if no action thereon is taken within 6 months), sue for a refund in the appropriate Federal District Court or the United States Court of Federal Claims. See I.R.C. §§ 6532(a), 7422(a); 28 U.S.C. §§ 1346(a)(1), 1491(a)(1); McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.