Opinion
23721-21
12-22-2021
Jose Castro Petitioner v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley, Chief Judge
On November 12, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction on the ground the petition was not filed timely as to the deficiency notice dated November 30, 2020, issued to petitioner for taxable year 2018. On December 16, 2021, petitioner filed his Objection to respondent's motion to dismiss.
The record reflects that respondent sent a notice of deficiency for 2017 by certified mail to petitioner at his last known address at 134 Clifton Place Apt. 3, Jersey City, N.J. 07304 (the Clifton Place address) on November 30, 2020. The 90-day period under I.R.C. section 6213(a) for filing a timely Tax Court petition as to that deficiency notice expired on March 1, 2021. The petition, filed June 24, 2021, arrived at the Court in an envelope bearing a U.S. Postal Service postmark dated June 22, 2021--203 days after the statutory 90-day period expired.
In his Objection petitioner asserts that: (1) petitioner never received the November 30, 2020, deficiency notice for 2018 upon which this case is based; and (2) petitioner's instant Tax Court case should not be dismissed. Contrary to petitioner's argument, however, a notice of deficiency is sufficient if it is mailed to the taxpayer's last known address. I.R.C. sec. 6212(b)(1); Keado v. United States, 853 F.2d 1209, 1211-1212 (5th Cir. 1988) (noting a notice of deficiency mailed to the taxpayer's last known address is valid, regardless of whether the taxpayer actually receives the notice). "Generally, the Commissioner has no duty to effectuate delivery of the notice after it is mailed." Blocker v. Commissioner, T.C. Memo. 2005-279 (citing Monge v. Commissioner, 93 T.C. 22, 33 (1989)).
As discussed above, a notice of deficiency that is mailed to the taxpayer's last known address in accordance with the procedures under I.R.C. section 6212(b)(1) is valid even if it is never actually received by the taxpayer. There is no requirement that the taxpayer actually receive that notice of deficiency prior to the expiration of the statutory 90-day filing period. Pyo v. Commissioner, 83 T.C. 626, 632 (1984); see also Frieling v. Commissioner, 81 T.C. 42, 52 (1983) (noting that the mailing of the deficiency notice to the taxpayer's last known address is a safe harbor whereby the notice will be deemed to be received by the taxpayer even if it never is). Because the record reflects that the deficiency notice for 2018 (upon which this case is based) was mailed by respondent to petitioner's last known address by certified mail on November 30, 2020, the last date for petitioner to file a timely Tax Court petition as to that deficiency notice expired on March 1, 2021. Petitioner failed to do so. The Court has no authority to extend the statutory period for filing a timely petition. Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, we are obliged to dismiss this case for lack of jurisdiction. I.R.C. secs. 6213(a), 7502; Brown v. Commissioner, 78 T.C. 215, 220 (1982); Rule 13(c), Tax Court Rules of Practice and Procedure.
Petitioner cannot prosecute this case in this Court. However, petitioner may continue to pursue administrative resolution of his 2018 tax liability directly with the Internal Revenue Service. Also, if financially feasible for him, petitioner may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in the Federal district court or U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction, filed November 12, 2021, is granted and this case is dismissed for lack of jurisdiction.