Opinion
27699-21SL
04-07-2022
MARSHALL ANTHONY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley, Chief Judge
On August 4, 2021, petitioner filed the petition to commence this case, indicating that he seeks review of a notice of deficiency and a notice of determination concerning collection action. Attached to the petition is a Notice LT11 ("Notice of intent to levy and notice of your right to a hearing"), dated September 18, 2019, issued for petitioner's 2016 tax year. Also attached to the petition is a response from the IRS to petitioner's Freedom of Information Act (FOIA) request, which references petitioner's request for a copy of a notice of deficiency issued with respect to his 2016 tax year. That response, dated March 26, 2021, indicates that the IRS needed additional time to search for the requested records. In addition, petitioner attached a copy of an account transcript for his 2016 tax year, which petitioner states does not show that a notice of deficiency for 2016 was issued to him. Petitioner, therefore, states that he believes the Notice LT11 constitutes erroneous or unlawful collection action by the IRS based on the IRS' response to his FOIA request and his account transcript. No notice of deficiency or notice of determination sufficient to confer jurisdiction on this Court is attached to the petition.
On December 17, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction (motion to dismiss) on the grounds that as to a notice of deficiency issued for petitioner's 2016 tax year the petition was not filed within the time prescribed by the Internal Revenue Code, and as to a notice of determination petitioner has not been issued any notice of determination that would permit petitioner to invoke the jurisdiction of this Court. Respondent attached to his motion (1) a copy of a notice of deficiency, dated October 22, 2018, issued to petitioner for his 2016 tax year, and (2) a certified mail list, postmarked October 22, 2018, indicating that the notice of deficiency for petitioner's 2016 tax year was sent by certified mail to petitioner on the postmark date. On January 12, 2022, petitioner filed an objection to respondent's motion to dismiss.
The Tax Court is a court of limited jurisdiction. This Court may exercise jurisdiction only to the extent expressly provided by statute. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). In addition, 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 case seeking redetermination of a deficiency, the jurisdiction of the Court depends on the issuance of a valid notice of deficiency and the timely filing of a petition by the taxpayer. Rule 13(a), (c), Tax Court Rules of Practice and Procedure; Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (I.R.C.) section 6213(a) provides that the petition must be filed with the Court within 90 days after a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., it will be considered timely filed. See I.R.C. sec. 7502(a) (1). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977). The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
Similarly, in a case seeking review of certain IRS collection activity, the Court's jurisdiction depends on the issuance of a valid notice of determination under Internal Revenue Code section 6320 or 6330 and the timely filing by the taxpayer of a petition within 30 days of that IRS determination. Smith v. Commissioner, 124 T.C. 492, 498 (2000); I.R.C. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure.
Other types of IRS notices which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, are a notice of determination concerning relief from joint and several liability (or failure of IRS to make determination within 6 months after election or request for relief), a notice of final determination for disallowance of interest abatement claim (or failure of IRS to make final determination within 180 days after claim for abatement), a notice of determination of worker classification, a notice of determination under section 7623 concerning whistleblower action, and a notice of certification of a seriously delinquent Federal tax debt to the Department of State. No pertinent claims involving I.R.C. sections 6015, 6404(h), 7436, 7623, or 7345, respectively, appear to be involved in this case.
The record in this case reflects that a notice of deficiency for tax year 2016 was sent to petitioner's last known address by certified mail on October 22, 2018. Based on that mailing date, the last date to timely file a petition with the Court as to that notice of deficiency was January 22, 2019. As discussed above, the Court received and filed the petition on August 4, 2021. The petition was received in an envelope bearing a postmark date of July 29, 2021. Both the filing and mailing dates are after the last date petitioner could timely file a petition with respect to the notice of deficiency for tax year 2016. Furthermore, petitioner has failed to produce or otherwise demonstrate that he has been issued any notice of determination that would permit him to invoke the jurisdiction of this Court. The Notice LT11 is not a notice of determination sufficient to confer jurisdiction on this Court.
In his petition and objection to respondent's motion to dismiss, petitioner advances several arguments in an attempt to show that the notice of deficiency for 2016 issued to him and the related assessment of his 2016 tax liability are invalid. Petitioner first points to the IRS' letter in response to his FOIA request and the account transcript for his 2016 tax year to question the existence of a notice of deficiency for 2016. However, the IRS's response to his FOIA request only states that the IRS needed more time to locate the record requested and we note that account transcripts of the type attached to the petition in this case, as a general rule, do not indicate the date when a notice of deficiency is issued. Petitioner also contends that the notice of deficiency was not properly mailed to him because the U.S. Postal Service website tracking information states "Label Created, not yet in system" in connection with the mail item bearing the tracking number of the notice of deficiency sent to him. Nevertheless, the postmarked certified mail list attached to respondent's motion to dismiss is sufficient to show that the 2016 notice of deficiency was properly mailed to petitioner on October 22, 2018. Finally, petitioner argues that, because the record in this case does not contain a Form 23C, Assessment Certificate - Summary Record of Assessments, bearing an authorized signature, the assessment made in connection with the 2016 notice of deficiency is invalid. The Court presumes that, by this argument, petitioner intends to show that the IRS' collection activity with respect to his 2016 tax liability is unlawful. However, as there is no legal requirement for the record in this case to contain such a form and the Court does not properly have jurisdiction over the IRS' collection activity with respect to petitioner in this case, we will not address petitioner's frivolous argument any further. See Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984).
In view of the foregoing, the Court is obliged to dismiss this case for lack of jurisdiction. Accordingly, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.