Opinion
14913-21L
04-12-2023
DAVID M. BORDEN & MONICA T. ESCOBAR, Petitioners v. COMMISSIONER OF INTERNAL REVENUE Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
Petitioners filed a petition to commence the instant case on April 29, 2021. Attached to the petition was an Internal Revenue Service (IRS) Notice CP504, Final Balance Due Reminder -Notice of Intent to Seize (Levy) Your Property or Rights to Property, and an IRS Notice CP503 regarding a past due amount. These notices concerned petitioners' taxable year 2017. No statutory notice of deficiency or notice of determination was attached to the petition.
On August 20, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground respondent had not issued a notice sufficient to confer jurisdiction upon the Court with respect to petitioners' taxable year 2017. Respondent soon thereafter supplemented the motion to explain that a notice of deficiency had been mailed to petitioners at an address in Ohio on August 26, 2019, but the petition was not timely filed in response to that notice.
On November 19, 2021, the Court received a letter from petitioners objecting to the granting of the motion as supplemented. Petitioners explained that they never received a notice of deficiency so had been surprised by the collection notices. Petitioners further explained that they had moved overseas and requested that all of their mail be forwarded to an Army Post Office (APO) address as of October 1, 2019.
This Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Naftel v. Commissioner, 85 T.C. 527, 529 (1985); Breman v. Commissioner, 66 T.C. 61, 66 (1976). The Court's jurisdiction to redetermine a deficiency depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).
Unless otherwise indicated, all statutory references are to the Internal Revenue Code (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.
For a notice of deficiency to be valid, it must be mailed to the taxpayer's last known address by certified or registered mail. See sec. 6212(a) and (b); see also Frieling v. Commissioner, 81 T.C. 42, 52 (1983). Actual receipt of the notice is not required as long as the IRS properly mailed the notice to the taxpayer's last known address. Yusko v. Commissioner, 89 T.C. 806, 810 (1987).
Generally, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed tax return, unless the taxpayer gives the IRS clear and concise notice of a change of address. Sec. 301.6212-2(a), Proced. & Admin. Regs. Petitioners filed their joint Federal income tax return for the taxable year 2018 on August 11, 2019, listing the Ohio address. The notice of deficiency was issued approximately 2 weeks later, after petitioners had filed their 2018 return and before their change of address to the APO would have been in effect.
Respondent demonstrated that the notice of deficiency was sent to petitioners by certified mail at the Ohio address on August 26, 2019. Because the notice was properly mailed to petitioners' last known address, it was valid, and the time within which petitioners could petition this Court expired prior to the filing of the petition in this case. See sec. 6213(a). The Court has no authority to extend the deadline for timely filing. See Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022).
Similarly, this Court's jurisdiction in a case seeking review of collection action by the IRS, depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals (Appeals). Secs. 6320(c) and 6330(d)(1); Rule 330(b); Offiler v. Commissioner, 114 T.C. 492 (2000). Petitioners have not yet been issued a notice of determination with respect to taxable year 2017.
Respondent acknowledges that petitioners have timely requested a hearing with Appeals and that the hearing request remains pending. Respondent indicates that a hearing will be held after the instant proceedings are resolved. We note that petitioners may be free to raise a challenge to the underlying liability for their taxable year 2017 as part of that hearing. See sec. 6330(c)(2)(B). If petitioners are not satisfied with the result of the hearing, they will be able to petition this Court with respect to any notice of determination issued. However, at this moment, the Court is without jurisdiction to adjudicate their dispute with the IRS.
Premises considered and for cause, it is
ORDERED that respondent's motion to dismiss as supplemented is granted, and this case is dismissed for lack of jurisdiction.