Opinion
21501-22
07-17-2023
CHRISTOPHER DEWAYNE BRAXTON, JR., Petitioner 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 November 25, 2022, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On December 29, 2022, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that a notice of deficiency for petitioner's 2019 tax year was sent by certified mail to petitioner's last known address on May 16, 2022. The notice of deficiency stated that the last day to file a petition with the Tax Court was August 15, 2022. On September 26, 2022, the Court received from petitioner a letter dated September 16, 2022, which was filed as the petition to commence this case. The envelope in which the letter was received bears a postmark dated September 21, 2022.
Like all federal courts, the Tax 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; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); 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). 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. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
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 88 T.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, 89 T.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 upon the May 16, 2022, mailing date of the notice of deficiency, the 90-day period to timely file a Tax Court petition expired on August 15, 2022. The petition was filed 133 days after the notice of deficiency was mailed. The postmark on the envelope which contained the petition bears a date which was 128 days after the notice was mailed.
In his objection to the motion to dismiss, petitioner states that he believes he mailed his petition on August 12, 2022, and that it should have been received by August 15, 2022. However, as discussed above, the record demonstrates otherwise.
The record establishes that the petition in this case was not timely filed or timely mailed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. While we are sympathetic to petitioner's circumstances, we have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioner may not prosecute this case in this Court, petitioner may continue to pursue an administrative resolution of the 2019 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.