Opinion
15767-23S
07-19-2024
JOEL ALVELO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Zachary S. Fried, Special Trial Judge.
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed November 20, 2023. Respondent's motion is based upon the ground that the Petition was not filed within the period prescribed by Internal Revenue Code (I.R.C.) section 6213(a). Petitioner's objection to respondent's motion is embodied in his response, filed December 27, 2023, as supplemented. On February 14, 2024, respondent filed a response to petitioner's objection and attached thereto Internal Revenue Service (IRS) records demonstrating that the notice of deficiency for petitioner's 2021 tax year (notice) was mailed to the address used with petitioner's most recently filed income tax return prior to the issuance of the notice.
A hearing was conducted on respondent's motion on June 26, 2024, during the Court's remote hearing session. Counsel for respondent appeared and argued in support of the motion. Petitioner appeared and opposed it.
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 deficiency case, this Court's jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). Rule 13(a), (c), Tax Court Rules of Practice and Procedure; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit).
The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. § 6212(b). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Treas. Reg. § 301.6212-2(a); King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89 T.C. 806, 808 (1987). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge, 93 T.C. at 33.
In his objection, as supplemented, and Response to Motion to Dismiss for Lack of Jurisdiction, filed February 13, 2024, petitioner does not dispute that the notice was mailed to his last known address. Petitioner, however, insists that the notice was not properly mailed because he did not reside at the address listed in the notice at the time it was mailed. Nevertheless, petitioner acknowledges that he failed to notify respondent of any change of his address from the address appearing on his most recently filed and properly processed tax return prior to the issuance of the notice.
The record in this case reflects that the notice for petitioner's 2021 tax year was sent by certified mail to petitioner's last known address on May 30, 2023. Based on that mailing date, the last day to timely file a petition with this Court was August 28, 2023. The Court received petitioner's electronically filed Petition on October 6, 2023, which was 129 days after the mailing of the notice. Thus, the record establishes that the Petition was not timely filed, and we are therefore obliged to dismiss this case for lack of jurisdiction.
Although petitioner may not prosecute this case in this Court, petitioner may still be able to pursue an administrative resolution of the 2021 tax liability directly with the IRS.
Upon due consideration, and for cause appearing more fully in the transcript of the above-referenced proceedings, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed November 20, 2023, is granted and this case is dismissed for lack of jurisdiction.