Opinion
390-22S
06-22-2023
JUSTIN BLAINE SHEAD, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Eunkyong Choi Special Trial Judge.
Petitioner electronically filed a petition with the Court on January 11, 2022. The Notice of Deficiency (NOD) that is the subject of the petition is dated October 4, 2021, and indicates that the last day to petition the Court is January 3, 2022. Accordingly, on December 20, 2022, the Court served an Order to Show Cause on the parties, instructing them to show cause in writing why the Court should not, on its own motion, dismiss this case for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by I.R.C. § 6330 or § 7502.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On January 13, 2023, respondent filed a Status Report indicating to the Court that respondent's counsel did not have cause as to why the Court should not dismiss the case for lack of jurisdiction. That same day, petitioner filed a Response apprising the Court that he was out of the country when respondent mailed the NOD and therefore had 150 days to petition the Court instead of 90 days.
On January 23, 2023, the Court served an Order on petitioner instructing him to file a response including relevant documents showing proof of travel outside of the United States on October 4, 2021, the date respondent mailed the NOD. Petitioner filed a response on February 6, 2023, including a notarized General Affidavit in which he swore that on October 2, 2021, he left the United States with his family and drove to San Miguel de Allende, Guanajuato, Mexico, to celebrate El Día De Los Muertos. Petitioner further swore that he and his family had remained in Mexico until their return to the United States on November 7, 2021. Petitioner included a photocopy of his valid passport card to support his sworn statement.
On February 14, 2023, the Court served an Order dismissing this case for lack of jurisdiction. We found that aside from his sworn statement, petitioner did not provide any documentation to establish he was in Mexico between October 2, 2021, and November 7, 2021, and petitioner had 90 days, not 150 days, to file a petition with the Court.
After due consideration, on February 27, 2023, the Court vacated and set aside its Order served February 14, 2023, and set this case for hearing during a special hearing session to be conducted remotely on April 19, 2023, to provide petitioner an opportunity to be heard on this matter. We also served on petitioner a Notice of Remote Proceeding, containing comprehensive instructions on how to participate in the hearing and a notice listing several tax clinics that service his area.
On April 19, 2023, this case was called and then recalled at the remote special hearing session of the Court. Petitioner did not appear, nor did anyone appear on his behalf. Richard Maldonado appeared on behalf of respondent and was heard.
Mr. Maldonado apprised the Court that the United States Postal Service (USPS) tracking number associated with the NOD shows that the USPS delivered the NOD to an individual on October 6, 2021. He also called the Court's attention to the U.S. Department of State website, which provides that when crossing into Mexico by vehicle, those traveling beyond 20 kilometers (approximately 12 miles) from the border are required to obtain an entry permit and a Temporary Vehicle Permit. San Miguel de Allende, where petitioner allegedly traveled during the relevant period, is more than 20 kilometers from the U.S./Mexico border.
On April 21, 2023, respondent filed a status report attaching a printout of the USPS tracking information for the NOD. The tracking number on the printout matches the tracking number on the NOD.
"If you enter Mexico by land and plan to travel beyond the immediate border area (approximately 12 miles or 20 kilometers into Mexico), you must stop at a National Migration Institute (INM) office to obtain an entry permit (Forma Migratoria Multiple or FMM) ..." Mexico International Travel Information, Travel.State.Gov, https://travel.state.gov/content/travel/en/internationaltravel/International-Travel-Country-Information-Pages/Mexico.html (last updated Jan. 5, 2023). "You will also need a temporary vehicle import permit to bring a U.S.-registered vehicle beyond the border zone." Id.
This Court is a court of limited jurisdiction. It may exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case seeking the 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); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). Section 6213(a) provides that the petition must be filed with the Court within 90 days (150 days if the notice is addressed to a person outside the United States) after the NOD is mailed. This Court lacks the authority to extend the time to file a petition after receipt of a NOD. Hallmark Research Collective, slip op. at 24. However, a timely mailed petition is treated as having been timely filed. § 7502.
The notice need not be addressed to a taxpayer residing outside the United States for the 150-day deadline to apply. The taxpayer need only be temporarily out of the country at the time the IRS mailed the notice, thereby delaying the taxpayer's receipt of the notice. See Levy v. Commissioner, 76 T.C. 228 (1981).
Petitioner did not appear for the hearing in this matter or provide the Court any additional documentation to support his sworn statement that he was in Mexico between October 2, 2021, and November 7, 2021. Petitioner's sworn statement equates to testimony, which the Court must weigh. See Higbee v. Commissioner, 116 T.C. 438, 442 (2001) (stating that the Court determines what evidence is credible). Given that petitioner has not corroborated his statement that he was out of the country when respondent mailed the NOD in this case and that he failed to appear for the hearing in this matter, we find petitioner had 90 days, not 150 days, to petition the Court.
Upon due consideration of the foregoing, it is hereby
ORDERED that the Court's Order to Show Cause, filed December 20, 2022, is made absolute. It is further
ORDERED that this case is dismissed for lack of jurisdiction upon the ground that the petition in this case was not filed within the time prescribed by I.R.C. § 6330 or § 7502.