Opinion
3069-23
07-13-2023
ERIK ALEXANDER ORTIZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On May 22, 2023, the Court issued an Order to Show Cause, directing the parties to show cause why this case should not be dismissed for lack of jurisdiction on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. In response to that Order, on June 1, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction. No response has been received from petitioner.
The record in this case reflects that a notice of deficiency for petitioner's 2020 tax year was sent by certified mail to petitioner's last known address on October 17, 2022. The notice of deficiency stated that the last day to file a Tax Court petition was January 17, 2023. The petition was mailed from California. It was received by the Court and filed on February 6, 2023. The postmark on the envelope in which the petition was received is not completely clear. While the day of the postmark is illegible, the month appears to indicate a mailing date in February.
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 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; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); 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 Court can also consider various facts and circumstances in an effort to determine when an item was mailed to the Court. The Court has long acknowledged the delays caused by an irradiation process that its mail undergoes. See, e.g., Grossman v. Commissioner, T.C. Memo. 2005-164. As we recently described it, that process requires mail to be transported to New Jersey for irradiation and then returned to Washington, D.C. for delivery to the Court. Seely v. Commissioner, T.C. Memo. 2020-6. at *8 n.3. Depending on the mailing location, the total delivery time can take 8 to 15 business days from the date of mailing. Id.
The postal delivery standards provide that delivery from California to Washington, D.C. takes 5 delivery days. See https://postalpro.usps.com/ppro-tools/service-standards-maps. Those same standards show that mail takes two delivery days to travel between Washington, D.C. and New Jersey.
Here, the 90-day period for timely filing (or timely mailing) the petition expired on January 17, 2023. Allowing for delivery from California to Washington, D.C., with an added round trip to New Jersey plus time for irradiation, a petition mailed in California on January 17, 2023, should have arrived at the Court by January 31, 2023. As discussed above, the Court received and filed the petition on February 6, 2023. Petitioner has not provided the Court with any extrinsic evidence concerning the date he mailed the petition. Accordingly, the record in this case establishes that the petition was not timely filed. The Court, therefore, is obliged to dismiss this case for lack of jurisdiction. However, although petitioner cannot prosecute this case in this Court, petitioner may still pursue an administrative resolution of petitioner's 2020 tax liability directly with the IRS.
Upon due consideration of the foregoing, it is
ORDERED that the Court's above-referenced Order to Show Cause is made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted in that this case is dismissed for lack of jurisdiction.