Opinion
11743-23S
05-01-2024
ISRAEL RIVERA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Adam B. Landy Special Trial Judge
This case is calendared for trial at the Court's May 20, 2024, Los Angeles, California, trial session. Pending before the Court is the Commissioner's Motion to Dismiss for Lack of Prosecution filed April 29, 2024.
In reviewing the motion and the case generally, there is a question of whether a jurisdictional defect exists. The petition commencing this case was filed on July 24, 2023. Mr. Rivera seeks review of the notice of deficiency (notice) dated April 17, 2023, and issued to him for tax year 2021. Attached to the petition is a partial copy of that notice, which stated the last day to file a timely petition was July 17, 2023. The petition arrived at this Court, on July 24, 2023, in a UPS Ground envelope, dated July 18, 2023.
An examination of the petition and the notice suggests the petition may not have been timely filed. If such be the case, this Court would lack jurisdiction to redetermine a deficiency for tax year 2021. See §§ 6213(a), 7502; see also Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 135 (2022); Raczkowski v. Commissioner, T.C. Memo. 2007-72 (holding that the timely mailing/timely filing provision of section 7502 are inapplicable where the Tax Court petition is sent by UPS Ground); Rule 13(c).
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C, in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
The premises considered, it is
ORDERED that, on or before May 29, 2024, the Commissioner shall file a response to this Order and attach a copy of the postmarked U.S. Postal Service Form 3877, or other proof of mailing, showing that he sent the notice for tax year 2021 to Mr. Rivera at his last known address by certified mail on or before April 17, 2023. It is further
ORDERED that, on or before May 29, 2024, the parties shall show cause in writing why this case should not be dismissed for lack of jurisdiction, on the ground that the petition was not mailed to or filed with the Court within the time prescribed by section 6213(a) or 7502. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Prosecution, filed April 29, 2024, is taken under advisement. It is further
ORDERED that this case is stricken from the above-referenced trial session, and the parties are excused from appearing at the calendar call on May 20, 2024. It is further
ORDERED that jurisdiction of this case is retained by the undersigned.