Opinion
8291-22S
06-15-2023
SHAYNE CHRISTOPHER AUNE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed May 20, 2022, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On May 24, 2022, petitioner filed a Response to Motion to Dismiss for Lack of Jurisdiction.
The record in this case reflects that, on June 7, 2021, a notice of deficiency for petitioner's 2018 tax year was sent by certified mail to petitioner's last known address, which was an address outside the United States. Among other things, the notice of deficiency informed petitioner that he had 90 days, or 150 days if the notice was addressed to a person outside the United States, after the date of the notice within which to file a Tax Court petition.
Like all federal courts, the Tax Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). 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, in part, on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice of Procedure; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); 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, or 150 days if the notice is addressed to a person outside the United States, 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). 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. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff 'g 88T.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, 89T.C. 806, 808 (1987). 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).
Here, based on the June 7, 2021, mailing date and the fact that the notice of deficiency was sent to a taxpayer outside the United States, the last date petitioner could timely file a petition with this Court was November 4, 2021. The petition was electronically filed by petitioner on April 16, 2022, which was well after the last date petitioner could timely file his petition. No notice of deficiency is attached to the petition. Rather, petitioner attached a copy of a Notice CP 49, dated April 11, 2022, which informed petitioner that his tax overpayment for 2021 had been applied to the outstanding balance for his 2018 tax year.
In his response to the motion to dismiss, petitioner contends that he always responded to the IRS promptly whenever notices were received. After receiving the 2018 notice of deficiency, petitioner states he timely sent information to the IRS, which petitioner believed resolved the matter of his 2018 tax year without having to file a Tax Court petition. Petitioner realized that his 2018 tax matter was not resolved only after receiving the Notice CP 49, issued April 11, 2022. Unfortunately, however, efforts to resolve a matter with the IRS administratively do not extend the time to file a Tax Court petition.
The record establishes that the petition was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. While we are sympathetic to petitioner's circumstances, we have no authority to extend the statutory period for timely filing. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
However, although petitioner may not prosecute this case in this Court, petitioner may still continue to pursue an administrative resolution of the 2018 tax liability directly with the IRS. Also, another remedy potentially available to petitioner, if feasible, is to pay the determined amounts, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring 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, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.