Opinion
3686-22
04-27-2023
ZBIGNIEW RAKOCZY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Christian N. Weiler, Judge
On March 3, 2022, petitioner electronically filed a petition with this Court. On February 1, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the petition was not filed with the Court within the time prescribed by 6213(a) or 7502. Consequently, respondent argues that there is no basis for a petition to this Court pursuant to section 6213(a).
This case was called and recalled from the calendar of the Court's Chicago, Illinois trial session on February 6, 2023. There was no appearance by or on behalf of the petitioner. Counsel for respondent appeared and was heard. Upon due consideration and for cause more fully appearing in the transcript of the proceeding, jurisdiction was retained by the undersigned and respondent's motion to dismiss was taken under advisement.
By Order served on February 13, 2023, petitioner was ordered to show cause in writing as to why respondent's Motion to Dismiss should not be granted. In the Order, petitioner was advised that failure to respond may result in the case being dismissed by the Court. To date no response from petitioner has been received.
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 a deficiency case, this Court's jurisdiction depends on the filing of a timely petition. See Rule 13(c); I.R.C. § 6213. In this regard, 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, of the date the deficiency notice is mailed (Saturday, Sunday, or a legal holiday in the District of Colombia are not counted as the last day). The Court has no authority to extend this 90 or 150 day period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
A petition will be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of the Tax Court petition. I.R.C. § 6213(a). Therefore, if petitioner did not timely file his petition with the Court, the pending case must be dismissed for a lack of jurisdiction.
A copy of the notice of deficiency was not attached to petitioner's petition with the Court. Respondent made repeated requests to obtain a copy of the notice of deficiency from petitioner as well as from internal sources but was able to obtain only an undated version. Respondent obtained the following documents, which support respondent's motion to dismiss: an undated copy of the notice of deficiency mailed to petitioner's last known address for tax years 2015, 2016, 2017, and 2018; a copy of PS Form 3877 which shows the date of the mailing of the notice of the deficiency; and a copy of Form 9984 which contains the examining officer's activity report that documents the actions taken during the audit. Form 3877 indicates that the notice of deficiency was mailed to "Zbigiew Rackoczy [sic], [xxxxxxxxxxxxxxxxx, Chicago IL 606xx-xxxx" for tax years "201512, 201612, 201712, 201812." It further indicates the notice of deficiency was mailed via certified mail on March 25, 2021. Form 9984 indicates that the "Examining Officer" listed on the undated notice of deficiency is the same Examining Officer listed on the "Activity Report." The Examining Officer indicated on the Activity Report on March 24, 2021, that the case was completed and closed for "issuance of SNOD."
Petitioner's address is being redacted for confidentiality purposes.
Given these facts, and petitioner's failure to provide a dated copy of the petition demonstrating otherwise, the notice of deficiency was likely mailed March 25, 2021. As petitioner's mailed address was located within the United States, petitioner had 90 days to file a petition with the Court to be considered timely. The 90 day deadline expired June 23, 2021, which was not a Saturday, Sunday, or legal holiday in the District of Columbia. Petitioner filed his petition on March 4, 2022, which was 344 days after the notice of deficiency was mailed.
The petition therefore was untimely, and the Court lacks jurisdiction.
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed February 1, 2023, is granted and this case is dismissed for lack of jurisdiction.