Opinion
25010-22
12-27-2023
ELIZABETH BULLER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Lewis R. Carluzzo Chief Special Trial Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed January 27, 2023. Respondent's motion was heard in Atlanta, Georgia on September 13, 2023, during the trial session that began in that city two days before. According to respondent's motion, the Court is without jurisdiction in this case because the petition in this case was not filed within the period prescribed by I.R.C. section 6213(a). Counsel for respondent appeared and argued in support of the motion. Counsel for petitioner appeared, agreed that the petition was not timely filed, but argued that the motion must be denied because the filing deadline in I.R.C. section 6213(a) is not jurisdictional.
There is no dispute with respect to the relevant facts that are easily summarized in a few sentences. The notice of deficiency upon which this case is based was mailed to petitioner on August 22, 2022 (notice); according to the notice, the "last day to file a petition" this Court was November 21, 2022. Petitioner e-filed her petition more than a week later on November 30, 2022.
Petitioner lived in New York, New York, when the petition was filed. Appellate venue lies with the United States Court of Appeals for the 2nd Circuit. Contrary to petitioner's position, compliance with the filing period set forth in I.R.C. section 6213(a) is a jurisdictional requirement. Hoffenberg v. Commissioner, 905 F.2d 665 (2d Cir. 1990); Sanders v. Commissioner, No. 15143-22, 160 T.C., slip op. at 8 (Nov. 2, 2023). That being so, it is
ORDERED that respondent's motion is granted. It is further
ORDERED that this case is dismissed for lack of jurisdiction because the petition was not filed within the period prescribed by I.R.C. section 6213(a).