Opinion
2786-22
05-08-2023
KATHERINE CONWAY & JOHN TABAR, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On April 15, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2018 and To Strike (motion to dismiss), filed April 15, 2022, on the grounds that, as to petitioners' tax year 2018, the petition was not filed within the time prescribed in the Internal Revenue Code. On May 11, 2022, petitioners filed a Notice of Objection to Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2018 and To Strike, asserting therein that so much of this case relating to tax year 2018 should not be dismissed for lack of jurisdiction because petitioners never received the notice of deficiency issued for their 2018 tax year. Thereafter, on September 7, 2022, petitioners filed a Motion to Dismiss for Lack of Jurisdiction as to 2018, in which they indicate they wish to withdraw their objection to respondent's motion to dismiss.
Like all federal courts, the Tax Court is a court of limited jurisdiction. 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). 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, 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, the record reflects that a notice of deficiency for petitioner's 2018 tax year was sent by certified mail to petitioner's last known address on April 26, 2021. Based on that mailing date, the last day to timely file a petition with the Court was July 26, 2021. The Court received and filed the petition in this case on January 24, 2022. The petition was received in an envelope bearing a postmark dated January 20, 2022. Thus, the record establishes that the petition was not timely filed with respect to the notice of deficiency issued for petitioner's 2021 tax year.
Upon due consideration of the foregoing, it is
ORDERED that petitioners' Motion to Dismiss for Lack of Jurisdiction as to 2018 is recharacterized as a Motion to Withdraw Notice of Objection to Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that petitioners' Motion to Withdraw Notice of Objection to Motion to Dismiss for Lack of Jurisdiction is granted. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and so much of this case relating to petitioners' 2018 tax year is dismissed for lack of jurisdiction and is deemed stricken from the Court's record. Petitioners are advised that their claims relating to the notice of deficiency issued for their 2019 tax year remain pending before the Court.