Opinion
13501-22
09-06-2023
KIRK BROWN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy Special Trial Judge
This matter is before the Court on the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed August 12, 2022. In his Motion, the Commissioner contends that the Court does not possess jurisdiction over this case because the Petition was not filed within the time prescribed by sections 6213(a) or 7502. In his Response to the Commissioner's Motion, Mr. Brown contends that the Petition was timely filed based on the advice the Commissioner provided to him in Letter 555 mailed after the issuance of the notice of deficiency (notice). As explained in greater detail below, we will grant the Commissioner's Motion.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Background
The following facts are derived from the parties' pleadings and motion papers. Mr. Brown resided in Connecticut when he filed the Petition. These facts are stated solely for the purpose of deciding the Motion before us and not as findings of fact in this case. See Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994).
Absent stipulation to the contrary, this case is appealable to the U.S. Court of Appeals for the Second Circuit, and we thus follow its precedent. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971); § 7482(b)(1)(A).
On March 2, 2022, the IRS sent Mr. Brown, by certified mail and to his last known address, a notice for tax year 2020 (year in issue). According to the notice, a petition seeking redetermination of the deficiency for the year in issue was required to be filed with this Court within 90 days of March 2, 2022, i.e., by May 31, 2022. Mr. Brown electronically filed the Petition for redetermination of the proposed deficiency with the Court on June 15, 2022, 15 days after the due date. On June 19, 2022, Mr. Brown also filed a Motion to Proceed Remotely. For the reasons stated below, we will deny Mr. Brown's Motion to Proceed Remotely as moot.
On August 15, 2022, Mr. Brown responded to the Motion by attaching a copy of Letter 555, sent to him by the IRS and dated April 29, 2022, where the IRS stated that it had reviewed the additional documents provided by Mr. Brown and determined that no change to the proposed deficiency was justified based on the information he sent for tax year 2020. More importantly, this Letter 555 stated that "[t]he last date to petition the Tax Court is June 15, 2022." This statement explicitly contradicted the date listed on the notice.
This case was called for hearing on August 16, 2023, during the Court's August 16, 2023, Washington, District of Columbia, special hearing session. Mr. Brown and counsel for the Commissioner appeared and were heard.
Discussion
Our Court is a court of limited jurisdiction. Therefore, we may exercise jurisdiction only to the extent expressly authorized by Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985); Breman v. Commissioner, 66 T.C. 61, 66 (1976). Jurisdiction must be proven affirmatively, and Mr. Brown, the party invoking our jurisdiction, bears the burden of proving that we have jurisdiction over his case. David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); see also Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Mr. Brown must establish all facts giving rise to our jurisdiction over his case. David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 270.
Our jurisdiction to redetermine an income tax deficiency under section 6213 depends upon the issuance of a notice of deficiency and a timely filed petition. See §§ 6213(a), 7502; Hoffenberg v. Commissioner, 905 F.2d 665, 666 (2nd Cir. 1990) (per curiam), aff'g, T.C. Memo. 1989-676; Monge v. Commissioner, 93 T.C. 22, 27 (1989); Rule 13(a) and (c). The notice of deficiency has been described as "the taxpayer's ticket to the Tax Court" because without it, there can be no prepayment judicial review by this Court. Mulvania v. Commissioner, 81 T.C. 65, 67 (1983).
I. Validity of Notice Purportedly Not Received by Petitioner
A notice of deficiency generally will be deemed valid 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). Actual receipt of the notice by the taxpayer is unnecessary, as long as the notice was sent to the taxpayer's last known address it is sufficient even if the taxpayer did not receive the notice. Tadros v. Commissioner, 763 F.2d 89, 91 (2d Cir 1985); Dees v. Commissioner, 148 T.C. 1, 8 (2017).
Mr. Brown argues that he never received the notice and therefore should not be bound by the 90-day deadline contained therein. The Commissioner attached to his Motion a properly completed Substitute USPS PS Form 3877 (PS Form 3877) which shows a postmark date of March 2, 2022, indicating the date the notice was mailed to Mr. Brown. Mr. Brown does not dispute that he currently and at all relevant times used the Bridgeport, Connecticut address to which the notice was sent as his mailing address. The notice and Form 3877 both state the notice was mailed to the same Bridgeport, Connecticut address listed as his address of record on his Petition.
During the hearing held August 16, 2023, Mr. Brown stated that he had difficulty receiving mail where he lived, and at all relevant times used his mother's home address as his mailing address. Mr. Brown agreed that this address was his last known address that would have appeared on his most recently filed tax return. See Treas. Reg. § 301.6212-2(a).
Further, a properly completed PS Form 3877 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. See Clough v. Commissioner, 119 T.C. 138, 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 the Commissioner's Motion appears to be properly completed and bears satisfactory indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents. In this case, the record reflects that a valid notice was mailed to Mr. Brown on March 2, 2022.
II. Untimely Filing of the Petition
A timely petition is a prerequisite to obtaining jurisdiction before our Court. §§ 6213(a), 7442; Rules 13, 20; Elings v. Commissioner, 324 F.3d 1110, 1112 (9th Cir. 2003); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022). 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 the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). We cannot extend the deadline for filing a petition, and we must dismiss a case for lack of jurisdiction if the petition is not filed within the statutorily prescribed time. Hallmark Rsch. Collective, 159 T.C. at 166- 67; see also Tadros v. Commissioner, 763 F.2d at 91 (holding that the 90-day period in section 6213(a) is a jurisdictional requirement and the failure of a petitioner to file a petition to this Court within that time period requires dismissal of the petition). The notice mailed to Mr. Brown was dated March 2, 2022, and the time for filing a petition with this Court as to that notice expired on May 31, 2022. Mr. Brown electronically filed his Petition on June 15, 2022, and his petition was not timely. The Court, therefore, has no jurisdiction to adjudicate Mr. Brown's Petition.
III. Effect of Erroneous Filing Due Date in Subsequent IRS Communications
While the Court is sympathetic to Mr. Brown's circumstances and encourages the IRS to remedy the errors on Letter 555 for future cases, there are no recognized exceptions for good cause or similar grounds that would allow Mr. Brown to proceed in this Court. The law is clear that erroneous legal advice rendered by employees of the IRS generally is not binding on the Commissioner. Elgart v. Commissioner, T.C. Memo. 1996-379, 1996 WL 460783 at *4. Moreover, the Court has no authority to extend the period provided by law for filing a petition "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). Accordingly, the Court must dismiss Mr. Brown's Petition for lack of jurisdiction.
Although Mr. Brown may not prosecute his case in this Court, we note that he may continue to pursue administrative resolution of his 2020 tax liability with the IRS. Another remedy potentially available to Mr. Brown, 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), Mr. Brown 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).
The Court appreciates counsel for the Commissioner's assurances, as stated during the August 16, 2023, special hearing, to assist Mr. Brown with an administrative resolution of this case.
Upon due consideration of the Commissioner's Motion, Mr. Brown's Response to the Motion, and for cause more fully appearing in the transcript of the proceeding, it is
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed August 12, 2022, is granted, and the case is dismissed for lack of jurisdiction. It is further
ORDERED that Mr. Brown's Motion to Proceed Remotely filed June 19, 2022, is denied as moot.