Opinion
18336-22
07-12-2023
JENNIFER CIPOLLINI, 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 (motion to dismiss), filed October 14, 2022, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On October 27, 2022, petitioner filed a Response to Motion to Dismiss for Lack of Jurisdiction in which petitioner objects to the granting of respondent's motion.
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 9, 2022. The notice of deficiency stated that the last day to file a petition with the Tax Court was August 8, 2022. The petition was received and filed by the Court on August 11, 2022. The envelope containing the petition, which was sent by UPS Ground, bears a label with a shipping date of August 9, 2022.
This 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). 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). Any reference in I.R.C. section 7502 to a postmark is treated as also applying to a shipping date recorded by a designated private delivery service. See I.R.C. sec. 7502(f). In order for the timely mailing/timely filing provision to apply to a petition shipped by private delivery service, that service must appear on the list of the Secretary's designated delivery services. I.R.C. sec. 7502(f). Those designated delivery services are found in Notice 2016-30, effective April 22, 2016.
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 88T.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, 89T.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).
Here, based on the notice of deficiency's mailing date of May 9, 2022, the 90-day period to timely file a Tax Court petition expired on August 8, 2022. The envelope in which the petition was received bears a UPS Ground label indicating that the shipping date of the petition was August 9, 2022--one day late. We also note that, even if the petition had been shipped on August 8, 2023, the petition--received and filed by the Court on August 11, 2022--still would not have been considered timely filed as UPS Ground is not one of the designated private delivery services listed in IRS Notice 2016-30 and, therefore, the timely filing/timely mailing provision of I.R.C. section 7502 would not apply.
In petitioner's response in opposition to the motion to dismiss, petitioner does not address respondent's jurisdictional allegations. Rather, petitioner discusses the merits of her claims. However, if this Court does not have jurisdiction, we cannot reach the merits of a case.
The record establishes that the petition was not timely filed, The Court is therefore obliged to dismiss this case for lack of jurisdiction because 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 still pursue an administrative resolution of the 2019 tax liability directly with the IRS. 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.