Opinion
425-24
06-18-2024
PETER BASSEY & BLESSING BASSEY, Petitioners 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 March 5, 2024, on the grounds that the Petition was not filed within the time prescribed in the Internal Revenue Code. On April 1, 2024, petitioners filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that notices of deficiency for petitioners' 2021 tax year were mailed to petitioners' last known address (the same address listed for petitioners in their Petition) on September 28, 2023. The Petition to commence this case was received and filed by the Court on January 8, 2024--102 days after the notices of deficiency were mailed. The Petition was received in an envelope bearing a postmark dated January 2, 2024--96 days after the notices were mailed.
This 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. Hoffenberg v. Commissioner, 905 F.2d 665 (2d Cir. 1990) (per curiam), aff'g T.C. Memo. 1989-676; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); 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). 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). We have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). 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. § 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. § 7502(a)(2).
Based on the notices' mailing date of September 28, 2023, the 90-day period for filing a petition with this Court expired on December 27, 2023. Because the Petition was not filed (or mailed) on or before that date, the Petition was not timely.
In their objection to the motion to dismiss, petitioners suggest that the Postal Service Form 3877 provided by respondent to demonstrate the notices of deficiency's mailing date was not properly completed, and therefore is unreliable, because it does not list the total number of mail pieces received by the post office from respondent. However, the PS Form 3877 bears petitioners' names and addresses, certified mail tracking numbers for the notices, a postmark dated September 28, 2023 (which is consistent with the date on the notice of deficiency), and the initials of the receiving post office employee. We are thus satisfied that, although the PS Form 3877 contains a minor defect, respondent has carried his burden of proof concerning the date and fact of proper mailing of the notices. See O'Rourke v. United States, 587 F.3d 537, 541-542 (2d Cir. 2009); see also, Bobbs v. Commissioner, T.C. Memo. 2005-272. Petitioners also speculate that, because of the end-of-year holiday season, the envelope containing their Petition might not have been collected and postmarked by the U.S. Post Office until several days after being deposited for mailing. As discussed above, however, the statute requires timely mailing of a petition to be established by a postmark on the envelope with a date that is on or before the last day for timely filing.
Here, the record establishes that the Petition was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. However, although petitioners may not prosecute this case in this Court, petitioners may still be able to pursue an administrative resolution of the 2021 tax liability directly with the IRS. Also, another remedy available to petitioners, 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 because the Petition was not filed within the period prescribed in Internal Revenue Code section 6213(a).