Opinion
13649-23
10-27-2023
JAMIE BIGHAM, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed October 5, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On October 25, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that a notice of deficiency for petitioner's 2021 tax year was sent by certified mail to petitioner's last known address on May 22, 2023. The notice of deficiency stated that the last day to file a petition with the Tax Court was August 21, 2023.
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. Rule 13(c), Tax Court Rules of Practice of Procedure; Patmon & Young Pro. Corp. v. Commissioner, 55 F.3d 216 (6th Cir. 1995), aff 'g T.C. Memo. 1993-143; 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). 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). 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).
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).
Based on the notice of deficiency's mailing date of May 22, 2023, the 90-day period in which to file a timely petition expired on August 21, 2023. The petition was electronically filed by petitioner several days later--on August 26, 2023.
In petitioner's objection to the motion to dismiss, petitioner concedes that the petition was not timely filed. Petitioner explains that petitioner was the victim of identity theft, however, and that the petition was late, in part, due to the need to address the identity theft and related issues. Petitioner requests that the Court consider petitioner's circumstances and hear this case on its merits. However, if the Court lacks jurisdiction, we cannot reach the merits of a case. Simply put, the Court has no authority to vary the jurisdictional requirements imposed in I.R.C. section 6213(a) even if the outcome seems unfair. See Organic Cannabis Found., LLC v. Commissioner, 962 F.3d1082, 1093-1094 (9th Cir. 2020).
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 petitioner may not prosecute this case in this Court, petitioner may still pursue an administrative resolution of the 2021 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.