Opinion
844-21S
08-25-2021
Darren Edward Reinart & Tara Barbara Sommerfield, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
Pending before the Court is respondent's Motion To Dismiss for Lack of Jurisdiction, filed April 13, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the petition was not filed within the time prescribed by the Internal Revenue Code. On August 10, 2021, petitioners filed an Objection to the motion. For the reasons set forth below, we will grant respondent's motion and dismiss this case for lack of jurisdiction.
The petition in this case seeks review of a deficiency and section 6662(a)accuracy-related penalty determined by respondent in a notice of deficiency issued for the 2018 taxable year. The notice of deficiency, dated November 23, 2020, states that the last day to petition the Tax Court is February 22, 2021. The petition in this case was electronically filed on February 23, 2021.
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See sec. 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). Where this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 270.
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 secs. 6212, 6213, and 6214; Rule 13(a) and (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer at his last known address. See sec. 6212(b); Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), aff'd, 935 F.2d 1282 (3d Cir. 1991); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). In order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See sec. 6213(a); Brown v. Commissioner, 78 T.C. 215, 220 (1982). We have no authority to extend this 90-day period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020).
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of the mailing of the notice. See sec. 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). There is no indication in the record--nor have petitioners asserted, after having been given an opportunity to do so--that they were outside the United States at or about the time that the notice in this case was mailed.
Under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See sec. 7502; sec. 301.7502-1, Proced. & Admin. Regs. However, as petitioners electronically filed their petition, these provisions are inapplicable here.
In his motion to dismiss, respondent asserts that he has attached, as Exhibit A, a certified mail list showing that the notice of deficiency was sent by certified mail on November 23, 2020, to petitioners' last known address. A review of the foregoing document establishes that respondent sent the notice of deficiency to petitioners by certified mail on November 23, 2020, to an address in Jim Thorpe, Pennsylvania. The address to which respondent sent the notice of deficiency is the same address that petitioners listed as their mailing address on the petition. Moreover, petitioners have not disputed that the aforementioned address is their last known address. We therefore take it as established.
A properly completed certified mail list, like a U.S. Postal Service Form 3877, is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The document attached as Exhibit A to respondent's motion to dismiss appears to be properly completed and bears sufficient indicia of authenticity, such as a U.S. Postal Service postmark date of November 23, 2020. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
In view of the fact that the notice of deficiency was mailed to petitioners' last known address on November 23, 2020, the last day to file a petition with this Court was February 22, 2021, as stated in the notice of deficiency. As noted above, the petition in this case was electronically filed on February 23, 2021. Accordingly, the petition was not filed within the time prescribed by section 6213(a), and we lack jurisdiction in this matter.
In their objection, petitioners concede that the petition was not timely filed but request the Court's leniency due to several extenuating circumstances. While the Court is sympathetic to petitioners' situation, governing law recognizes no exceptions for good cause or similar grounds that would allow them to proceed in this judicial forum. As noted above, the Court has no authority to extend the period provided by law for filing a petition "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, as petitioners have failed to "establish affirmatively all facts giving rise to our jurisdiction", David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 270, we must dismiss this case for lack of jurisdiction.
In their objection, petitioners also request that the Court change their preferred method of service to paper form. We will accordingly direct the Clerk of the Court as set forth below.
However, although petitioners may not prosecute this case in the Tax Court, petitioners may continue to pursue administrative resolution of the 2018 tax liability directly with the IRS. Another remedy available to petitioners, if feasible, is to pay the determined amounts, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioners may file a suit for refund in the appropriate Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
Upon due consideration of the foregoing, and for cause, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction. It is further
ORDERED that the Clerk of the Court shall change petitioners' service preference from electronic to paper form and accordingly serve a paper copy of this Order upon petitioners at the mailing address listed on the petition.