Opinion
1897-21
03-28-2023
ROY CHEVRIE, III & SANDRA K. CHEVRIE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
After receiving a Notice CP 504 ("Notice of intent to seize (levy) your property or rights to property") with respect to their 2016 tax year, petitioners filed the petition to commence this case on January 21, 2021. Petitioners indicate on the petition form that they seek review of a notice of deficiency issued for their 2016 tax year. A copy of the Notice CP 504 is attached to the petition. Petitioners' mailing address is listed on the petition form as "2209 Kemble Avenue South Bend, IN 46613".
On May 13, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that (1) as to a notice of deficiency issued for petitioners' 2016 tax year, the petition was not filed within the time prescribed in the Internal Revenue Code, and (2) respondent has not issued any notice of determination concerning collection action for petitioners' 2016 tax year that would permit petitioners to invoke the jurisdiction of this Court. Respondent appended to his motion a copy of the notice of deficiency issued for petitioners' 2016 tax year with all attachments, including a Form 4549-A, Report of Income Tax Examination Changes. Respondent also attached a certified mailing list, postmarked December 17, 2019, indicating that duplicate statutory notices of deficiency were issued to petitioners for their 2016 tax year with the tracking numbers 7018 1130 0000 1898 8906 and 7018 1130 0000 1898 8990. The copy of the notice of deficiency and the certified mailing list both indicate that the notices of deficiency were mailed to petitioners at "2209 Kemble Avenue, South Bend, IN 46613-1719".
On May 21, 2021, petitioners filed an Objection to Motion to Dismiss for Lack of Jurisdiction. In that objection, petitioners assert that they did not receive any notice of deficiency for their 2016 tax year. Petitioners question whether a notice of deficiency was actually mailed to them as no entry showing that a notice of deficiency was issued to them appears on their account transcript for 2016 (copy attached to objection). Furthermore, petitioners assert that, if a notice of deficiency was issued, it was not mailed to their last known address and thus is invalid. Petitioners state that their business is located at 2209 Kemble Avenue, but their residence, which has a separate entrance, is located behind the business.
On May 10, 2022, petitioners filed a First Supplement to Objection to Motion to Dismiss for Lack of Jurisdiction. Petitioners state that 2209 Kemble Avenue was their mailing address as of December 17, 2019, the date of the mailing of the notice of deficiency. However, petitioners state that their home address was 2213 Kemble Avenue. In addition, petitioners still argue that the account transcript for their 2016 tax year does not indicate that a notice of deficiency was issued to them. Petitioners posit that what was sent to them by the IRS on December 17, 2019, was an examination report, rather than a notice of deficiency. Petitioners also request that "they be relieved from any perceived non-compliance with jurisdiction for a notice of deficiency that they never received due IRS acknowledged delays in processing and correspondence as a result of COVID-19."
On January 12, 2023, respondent filed a Response to First Supplement to Objection to Motion to Dismiss for Lack of Jurisdiction. Respondent asserts therein that petitioners admit that their mailing address as of December 17, 2019, was 2209 Kemble Avenue, South Bend, IN 46613. Respondent also asserts that, based on petitioners' most recently filed tax return for 2018, "2209 Kemble Avenue, South Bend, IN" was petitioners' last known address as of December 17, 2019. Copies of the relevant pages of petitioners' 2018 tax return showing that address are attached to respondent's response. Respondent also attached copies of the tracking information obtained from the U.S. Postal Service's (USPS) website for both tracking numbers shown on the certified mail list corresponding to the duplicate notices of deficiency issued to petitioners for 2016. The tracking information shows that the items mailed with those tracking numbers were in the possession of the USPS on December 17, 2019, and were delivered to an individual at 2209 Kemble Avenue on December 19, 2019. Respondent counters that a notice of deficiency, not an examination report, was sent to petitioners on December 17, 2019, as shown by petitioners' account transcripts for tax year 2016. Supported by relevant exhibits and a declaration of the supervisory IRS agent of Technical Services for the Indianapolis, Indiana IRS office, respondent explains that (1) the issuance of notices of deficiency are not always specifically noted as such in account transcripts; (2) an account transcript, however, will sometimes display the code "560", which is an indication that a notice of deficiency was issued on the date associated with that code on the transcript; and (3) in addition to indicating that a notice of deficiency was issued on a certain date, the code "560" also will be accompanied by a notation as to what date the assessment statute has been extended (based on the suspension of the assessment statute as provided for by Internal Revenue Code (I.R.C.) section 6503(a)).
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 on the issuance of a valid notice of deficiency and the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice of Procedure; Hallmark Research 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, I.R.C. section 6213(a) provides that the petition must be filed with the Court within 90 days 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). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. 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).
Similarly, in a case seeking review of certain IRS collection activity, the Court's jurisdiction generally depends on the issuance of a valid notice of determination under I.R.C. section 6320 or 6330 (after the taxpayer has properly filed a request for a collection due process hearing) and the filing by the taxpayer of a petition for review of that IRS determination. Smith v. Commissioner, 124 T.C. 36, 38 (2005); I.R.C. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure.
Other types of IRS notices which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, are a notice of determination concerning relief from joint and several liability (or failure of IRS to make determination within 6 months after election or request for relief), a notice of final determination for disallowance of interest abatement claim (or failure of IRS to make final determination within 180 days after claim for abatement), a notice of determination of worker classification, a notice of determination under section 7623 concerning whistleblower action, and a notice of certification of a seriously delinquent Federal tax debt to the Department of State.
Here, respondent has produced copies of the notice of deficiency, dated December 17, 2019, issued for petitioners' 2016 tax year, along with the corresponding certified mail list, postmarked December 17, 2019, indicating that duplicate statutory notices of deficiency were sent to petitioners for their 2016 tax year. Furthermore, the notices of deficiency were mailed to the address listed by petitioners on their 2018 income tax return, which was petitioners' most recently filed and properly processed Federal tax return. That address is also the same mailing address listed by petitioners in the petition filed to commence this case. Moreover, petitioners' 2016 account transcripts display the code "560" with a date of December 17, 2019, which indicates that a notice of deficiency was issued to petitioners on that date. Thus, the Court is satisfied that respondent has provided sufficient corroborating information to demonstrate that notices of deficiency for petitioners' 2016 tax year were sent by certified mail on December 17, 2019, to petitioners' last known address.
The USPS tracking information for the 2016 notices of deficiency indicates that they were delivered to an individual at petitioners' last known address on December 19, 2019. Based on the mailing date of December 17, 2019, the last date to timely file a petition with the Court was March 16, 2020. The petition was received by the Court and filed on January 21, 2021. The envelope containing the petition bears a postmark date of December 22, 2020. Both the filing and mailing dates are after the last date petitioners could timely file a petition based on the notice of deficiency issued to them for their 2016 tax year. The Notice CP 504, which petitioners attached to their petition, is not a notice of determination sufficient to confer jurisdiction on this Court. Furthermore, we note that petitioners do not qualify for any COVID-19-related relief from their filing deadline of March 16, 2020, as that date falls before the filing deadlines that were extended by the Tax Court building's closure (which extended deadlines effective from 9:00 p.m. on March 18, 2020, until the Court building's reopening on July 10, 2020) and IRS Notice 2020-23 (which extended deadlines for filing a Tax Court petition falling between April 1, 2020 and July 14, 2020, to July 15, 2020).
The record establishes that, as to the notice of deficiency issued to petitioners for their 2016 tax year, the petition in this case was not timely filed. We have no authority to extend the period for timely filing the petition. Hallmark Research Collective, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256, 259 (1972). Petitioners also have not demonstrated that respondent made any other determination with respect to their 2016 tax year that would permit them to invoke the jurisdiction of this Court. However, although petitioners may not prosecute this case in the Tax Court, petitioners may continue to pursue administrative resolution of the 2016 tax liability directly with the IRS. Also, another remedy potentially available to petitioners, if feasible, is to pay the amounts determined in the notice of deficiency, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioner may file 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