Opinion
22330-22S
02-27-2023
BRUCE G. BERNING & MARCIA G. DARM, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
The petition in the above-docketed matter was filed on October 7, 2022, and 2020 was reflected as the taxable year in dispute. Attached was a notice of deficiency dated June 6, 2022, issued to petitioners with respect to the 2020 taxable year. An answer to the petition followed on December 6, 2022, but did not address jurisdictional matters.
Thereafter, and unexpectedly given the state of the record, the parties on December 28, 2022, submitted a Proposed Stipulated Decision resolving the case and reflecting no deficiency or penalty due from petitioners for 2020. Nonetheless, review of the record continued to suggest a fundamental jurisdictional defect that would prevent entry of the just-referenced decision. At that juncture, the Court by Order served December 30, 2022, directed the parties, on or before January 27, 2023, to show cause in writing why this case should not be dismissed for lack of jurisdiction, on the ground that the petition was not mailed to or filed with the Tax Court within the time prescribed by section 6213(a) or 7502 of the Internal Revenue Code (I.R.C.). The Order also noted that the date of the notice of deficiency underlying this proceeding indicated a statutory deadline for filing a petition pursuant to section 6213(a) of the Internal Revenue Code (I.R.C.) that expired on September 6, 2022. Conversely, the envelope in which the petition was received bore postage dated October 3, 2022.
On January 23, 2023, respondent filed a response to the Order To Show Cause, attaching supporting documentation in the form of a certified mail list to establish that the notice of deficiency was mailed on June 6, 2022. Respondent further concurred that the case should be dismissed as untimely. To date, no response has been received from petitioners.
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 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), Tax Court Rules of Practice and Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). In this regard, section 6213(a), I.R.C., 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 the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The Court has no authority to extend this 90-day (or 150-day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of a Tax Court petition, a provision which becomes relevant where that date is later than the date computed with reference to the mailing date. Sec. 6213(a), I.R.C. Likewise, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
The premises considered, it is
ORDERED that the Court's Order To Show Cause, served December 30, 2022, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction. It is further
ORDERED that the Proposed Stipulated Decision, filed December 28, 2022, is hereby deemed stricken from the Court's record in this case.