Opinion
6870-23
08-11-2023
PAMELA CONTRERAS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
On June 20, 2023, respondent filed in the above-docketed case a Motion To Dismiss for Lack of Jurisdiction, on the ground that the petition was not filed within the time prescribed by section 6213(a) or 7502 of the Internal Revenue Code (I.R.C.). Respondent attached to the motion copies of a notice of deficiency and corresponding certified mail list (U.S. Postal Service (USPS) Form 3877), as evidence of the fact that such notice of deficiency for the taxable year 2020, dated September 6, 2022, had been sent to petitioner by certified mail on September 6, 2022.
The petition herein was filed with the Court on April 18, 2023, which date is 224 days after the date of the notice of deficiency for tax year 2020 mailed to petitioner. The petition had been received by the Court in an envelope that have been sent by FedEx Express Saver, which is not a designated private delivery service for purposes of the section 7502, I.R.C., timely mailing rules. The ship date reflected is April 13, 2023.
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 a case seeking the 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 and Procedure; Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092 (9th Cir. 2020); Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). In this regard, section 6213(a), I.R.C., 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). The Court has no authority to extend this 90-day (or 150-day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of a Tax Court petition, a provision which becomes relevant where that date is later than the date computed with reference to the mailing date. Sec. 6213(a), I.R.C. Likewise, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
A petition is ordinarily "filed" when it is received by the Tax Court in Washington, D.C. See, e.g., Leventis v. Commissioner, 49 T.C. 353, 354 (1968). Although the Court may sit at any place within the United States, its principal office, its mailing address, and its Clerk's office are in the District of Columbia. I.R.C. § 7445; Rule 10. And a document that is electronically filed with the Court is filed when it is received by the Court as determined in reference to where the Court is located. Nutt v. Commissioner, No. 15959-22, 160 T.C. (May 2, 2023).
In the present case, the time for filing a petition with this Court expired on December 5, 2022. However, the petition was not filed within that period.
Petitioner was served with a copy of respondent's motion to dismiss and directed to file an objection, if any. Petitioner apparently sent such objection, with attachments, to the Internal Revenue Service (IRS) in error, and respondent on July 19, 2023, filed a status report providing a copy of petitioner's submission. Therein, petitioner did not directly deny the jurisdictional allegations set forth in respondent's motion and instead conceded that petitioner had not filed with the Tax Court before the statutory deadline. To wit, petitioner summarized as follows with respect to the mailing of the petition:
While the response to notice CP2119A [sic], tax year 2020, deadline was on December 5, 2022. I did not have a record of this letter until the second notice that was sent in 2023. At that time, I immediately responded by calling the IRS to gain clarity of the notice and filed the petition.
To give you more context on my personal circumstances: During 2022, I was hospitalized at Glendora Hospital due to mental health complications. Refer to document 1. My recovery took over 6 months from February to August. I had to take a long-term disability. Refer to documents 2 and 3. I was finally able to gain strength to return to work on August 24th. Which is the same time that the first CP2119A [sic] letter notice was received. Additionally, my partner and I were in the process of purchasing a home, which we moved into in July.
The balance of the objection then focused on the nature of the underlying substantive 2020 tax matters and petitioner's efforts to resolve the situation administratively with the Internal Revenue Service (IRS). In particular, Uber had mistakenly reported income under petitioner's Social Security number, rather than her father's. When petitioner became aware of problem, she promptly contacted the IRS to explain, while simultaneously ensuring that the income was properly claimed by her father on his return. The objection then closed with an expression of willingness to provide anything further needed by the Court and with a request for understanding:
Under the circumstances mentioned above, we have covered our basis to ensure we have absolved our misfilings. If additional evidence is needed, we can
absolutely provide it. If a court appearance is required, we will attend to ensure our sincerity on this severe case.
I would also like to plead with the court that this was simply a massive mistake on our part, as it was only a daughter trying to help her immigrant father find work during the pandemic. We are doing our best to rectify this situation and would appreciate some humanity when considering.
Thus, given the foregoing, the record primarily indicates that after the notice of deficiency was issued, petitioner endeavored to communicate with and to submit information to, and to seek information from, the IRS. The law is well settled, however, that once a notice of deficiency has been issued, further administrative contact or consideration does not alter or suspend the running of the 90-day period. Even confusing IRS responses or correspondence during the administrative process cannot override the clearly stated deadline in the statutory notice of deficiency. Such confusion is not uncommon given that the IRS frequently treats as separate processes or proceedings what taxpayers view as a single dispute. Taxpayers not infrequently have also conflated this Court with an IRS unit, but the IRS is a completely separate and independent entity from the Tax Court. In a similar vein, audit reconsideration is unrelated to, and has no bearing on, rights to petition the Tax Court.
Although section 7502, I.R.C., allows a timely mailed petition to be treated as timely filed, that section mandates that the envelope bearing the petition be "properly addressed to the agency, officer, or office with which the document is required to be filed.". Sec. 7502(a)(2)(B), I.R.C. A petition seeking redetermination of a deficiency must be filed with this Court and not the IRS. Sec. 6213(a), I.R.C. Hence, the mailing (or faxing) of a petition, correspondence, return, or other documentation to the IRS is not sufficient to confer jurisdiction on this Court. Axe v. Commissioner, 58 T.C. 256 (1972). The statute is clear, and this Court must follow it. Estate of Cerrito v. Commissioner, 73 T.C. 896 (1980). The Court would also note that a notice of deficiency issued to a taxpayer states on its face the last day to petition the Tax Court (not the IRS) and provides expressly in multiple places that the filing period extends 90 days from the date of the letter. The first pages of the notice are likewise explicit in providing that petitions must be filed with the U.S. Tax Court and in giving the Court's address as "400 Second Street, NW, Washington, DC 20217". With these definitive rules regarding the inefficacy of written correspondence to the IRS, it is clear that efforts to contact the IRS by phone or fax can offer no greater protection.
Additionally, to the extent that petitioner's statements regarding delayed receipt might be interpreted as a claim that the notice of deficiency was not properly sent, a notice of deficiency is sufficient if it is mailed to the taxpayer's last known address. See sec. 6212(b)(1), I.R.C. In King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987), the Court of Appeals stated that by "establishing a presumption that the taxpayer's 'last known address' is the address on his/her most recent return, we provide a clear starting point for the IRS's determination. A notice of deficiency mailed to that address will be sufficient, unless the taxpayer subsequently communicates 'clear and concise' notice of a change of address." See also sec. 301.6212-2(a), Proced. & Admin. Regs. In such circumstances, the 90-day period prescribed in section 6213(a), I.R.C., is computed by reference to the date the notice of deficiency "is mailed" by certified mail, not the date of attempted delivery, availability, or actual receipt, except in the narrow circumstances where the notice itself sets forth a later, and thus controlling, last date to petition the Tax Court.
Respondent bears the burden of proving proper mailing of the notice of deficiency by competent and persuasive evidence. Coleman v. Commissioner, 94 T.C. 82, 90 (1990). Such burden requires respondent to introduce evidence showing that the notice was properly delivered to the USPS for mailing. Cataldo v. Commissioner, 60 T.C. 522, 524 (1973), aff'd, 499 F.2d 550 (2d Cir. 1974). In particular, as this Court has stated: "A Form 3877 reflecting Postal Service receipt represents direct documentary evidence of the date and the fact of mailing." Coleman v. Commissioner, 94 T.C. at 90. If the existence of the notice of deficiency is undisputed, a properly completed Form 3877 is alone sufficient to establish proper mailing, but even a Form 3877 with defects is probative and may be combined with additional evidence to meet respondent's burden. See O'Rourke v. United States, 587 F.3d 537, 540-542 (2d Cir. 2009); Coleman v. Commissioner, 94 T.C. at 91-92; Portwine v. Commissioner, T.C. Memo. 2015-29, aff'd, 668 Fed.Appx. 838 (10th Cir. 2016).
It is well established in the context of a motion to dismiss for lack of jurisdiction that once respondent has established the fact and date of the mailing of a notice of deficiency, the burden rests on the taxpayer to prove that the notice was not sent to his or her last known address. See, e.g., Yusko v. Commissioner, 89 T.C. 806, 808 (1987); Clevenger v. Commissioner, T.C. Memo. 1998-37, aff'd without published opinion, 176 F.3d 482 (9th Cir. 1999). Stated otherwise, the taxpayer bears the burden of establishing that clear and concise notice of a change of address was provided to the IRS. See, e.g., Mollett v. Commissioner, 82 T.C. 618, 624-625 (1984), aff'd without published opinion, 757 F.2d 286 (11th Cir. 1985); Hammann v. Commissioner, T.C. Memo. 1989-361. In general, notification of a change of address provided by the taxpayer to third parties including payors and other government agencies, rather than to the IRS, is insufficient to satisfy the notice requirement quoted above. Sec. 301.6212-2(b)(1), Proced. & Admin. Regs. However, an exception exists in specified circumstances where a new address has been communicated to the USPS. Sec. 301.6212-2(b)(2), Proced. & Admin. Regs. Regulations provide that the IRS will update taxpayer addresses by referring to data accumulated and maintained in the USPS National Change of Address (NCOA) database. Id.
Here, the Court is satisfied that the combination of evidence proffered is sufficient to establish proper mailing. The existence of the notice has never been challenged, respondent has supplied a properly postmarked USPS Form 3877, and the record is devoid of any evidence or claim to suggest that petitioner at any relevant time prior to the September mailing gave the IRS "clear and concise" notice of any address other than that used. Nor is there any suggestion that the exception premised on the NCOA database should alter the result in the instant scenario. Significantly, the address on the notice of deficiency is the same as that reflected as petitioner's the address of record in this case, and no different address has ever been identified. USPS tracking also shows that the certified item was successfully delivered and left with an individual at petitioner's address on September 10, 2022. Furthermore even problems with delivery by the USPS do not override or otherwise invalidate proper mailing by the IRS.
Hence, while the Court is sympathetic to petitioner's situation and understands the unintentional character of the inadvertence here, as well as the challenges of the circumstances faced and the good faith efforts made, the fundamental nature of the filing deadline precludes the case from going forward. As a Court of limited jurisdiction, the Court is unable to offer any remedy or assistance when a petition is filed late. Rather, the Court is barred from considering in any way petitioner's case or the correctness of petitioner's claims. Unfortunately, governing law recognizes no reasonable cause or other applicable exception to the statutory deadline, and the allegation that the petition was sent more than months late remains unrebutted.
The Court has no authority to extend that 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, since petitioner has failed to establish that the petition was mailed to or filed with this Court within the required 90-day period, this case must be dismissed for lack of jurisdiction. The Court would, however, encourage petitioner to continue working administratively through the IRS, which, being entirely separate from the Tax Court, may be able to offer alternative avenues for relief, not dependent on the existence of a Tax Court case.
The premises considered, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.