Opinion
21683-21
05-18-2023
ANDRE D. BODO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction. Petitioner opposes the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated January 25, 2021, respondent determined a deficiency in petitioner's federal income tax for the taxable year 2017. On June 21, 2021, the Court received and filed the Petition to commence this case, in which petitioner seeks review of that Notice.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6 n.4 (collecting cases). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition must be filed within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Research Collective, slip op. at 42; see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1.
In the Motion to Dismiss, respondent asserts that the Notice of Deficiency in this case was sent by certified mail on January 22, 2021, to petitioner's last known address. A PS Form 3877 attached thereto establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on January 22, 2021, to the address in Desert Hot Springs, California listed in the Notice. That address is the same address that petitioner listed in the Petition, and he has not disputed that the Notice was mailed to his last known address. We thus take it as established for purposes of the Motion to Dismiss that the Notice was so mailed.
A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The PS Form 3877 attached to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
Notwithstanding the fact that the Notice of Deficiency was mailed to petitioner's last known address on January 22, 2021, it bears a date of January 25, 2021. Thus, the last date to file a timely petition as to that Notice was April 26, 2021, as stated in the Notice. The Petition in this case was received and filed by the Court on June 21, 2021. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see § 7502, the envelope in which the Petition in this case was mailed to the Court bears a postmark of June 15, 2021. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
Where a notice of deficiency bears a date later than its actual date of mailing, it is treated as mailed on the later date for purposes of the 90-day period for filing a petition with the Court. See Jones v. Commissioner, T.C. Memo. 1984-171. Accordingly, we use the date of January 25, 2021, to determine whether the Petition in this case was timely filed. The 90th day after this deemed date of mailing was Sunday, April 25, 2021, but section 6213(a) provides that Sunday is not counted as the last day of the 90-day period. Hence, the last date to file a timely petition as to the Notice of Deficiency in this case was April 26, 2021.
In his Objection to respondent's Motion to Dismiss, petitioner states that the late filing of the Petition "was an honest mistaken on [his] part" and cites complications related to the COVID-19 pandemic.
The COVID-19 pandemic did lead to the extension of certain tax-related filing deadlines, including the deadline for filing a petition with the Tax Court; however, the circumstances of this case fall outside the relief afforded. Specifically, the Court's decision in Guralnik v. Commissioner, 146 T.C. 320 (2016), together with IRS Notice 2020-23, 2020-18 I.R.B. 742 (Apr. 27, 2020), extended to July 15, 2020, the deadline for filing petitions with due dates between March 19, 2020, and July 15, 2020. But, as noted above, the due date for filing a petition with the Court in this case was April 26, 2021. Thus, the foregoing authority had no effect on the due date, and the Petition was untimely, even after accounting for the extensions granted due to the COVID-19 pandemic.
We are sympathetic to petitioner's circumstances. But we have no authority to extend the time for filing a petition with the Tax Court for redetermination of a deficiency "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972). Nevertheless, while petitioner cannot pursue his case in this Court, he may continue to pursue administrative resolution of the 2017 tax liability with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed October 22, 2021, is granted, and this case is dismissed for lack of jurisdiction.