Opinion
5792-22S
04-20-2023
MICHAEL NGUYEN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On May 3, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed. Respondent attached to the motion a copy of the Certified Mail List as evidence of the fact that the notice of deficiency was sent to petitioner by certified mail on September 16, 2021.
The petition was filed with the Court on March 7, 2022, which date is 172 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. The petition was received by the Court in an envelope bearing a United States Postal Service postmark of March 1, 2022, which date is 166 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. Attached to respondent's motion is a copy of the deficiency notice issued for 2018, which states that the last day for filing a timely Tax Court petition as to that notice would expire on December 15, 2021.
This Court is a court of limited jurisdiction. This Court's jurisdiction to determine a deficiency in income tax depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a) and (c); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, I.R.C. section 6213(a) provides that the petition must be filed with the Court 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). If a petition is timely mailed, 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 be properly addressed to the Tax Court in Washington, D.C., and 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). The Court has no authority to extend this 90 day (or 150 day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with the Court expired on December 15, 2021. However, the petition was not filed within that 90 day period.
On March 2, 2023, petitioner filed an Objection to respondent's motion to dismiss. In it, petitioner asserts that petitioner timely mailed the petition to the IRS in Holtsville, New York and to the Los Angles Tax Court in California and this mail was returned to him. The first page of the notice of deficiency provides the address to mail the petition to the Tax Court and states that the last day to petition the Tax Court is December 15, 2021.
The record reflects that the petition in this case was not timely filed. While the Court is sympathetic to petitioner's situation, the Court has no authority to extend the period for filing a timely petition. Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, we are obliged to dismiss this case for lack of jurisdiction.
The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. Also, if feasible, petitioner may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in the Federal district court or U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (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.