Opinion
2786-22
06-07-2023
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 on the grounds that, as to a notice of deficiency issued to petitioners for their 2018 tax year, the petition in this case 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.
On September 7, 2022, petitioners filed a Motion to Dismiss for Lack of Jurisdiction as to 2018, indicating that they wished to withdraw their objection to respondent's motion to dismiss. Accordingly, by Order issued May 8, 2023, the Court recharacterized petitioners' motion as a Motion to Withdraw Notice of Objection to Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2018 and, on the grounds stated in respondent's Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2018 and To Strike, granted respondent's motion and dismissed for lack of jurisdiction so much of this case relating to tax year 2018.
On May 22, 2023, however, petitioners filed a Letter Dated May 12, 2023, stating therein that they, in fact, object to the granting of respondent's Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2018 and To Strike. By Order issued June 6, 2023, therefore, the Court recharacterized that letter as a Motion to Vacate and granted that motion in that the Court's Order issued May 8, 2023 was vacated and set aside.
As to petitioners' 2018 tax year, the record in this case reflects that a notice of deficiency was sent by certified mail to petitioner's last known address on April 26, 2021. The notice of deficiency stated that the last day to file a Tax Court petition with respect to petitioners' 2018 tax year was July 26, 2021.
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).
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).
Based upon the mailing date of April 26, 2021, the last day petitioners could timely file a petition challenging the notice of deficiency issued for their 2018 tax year was July 26, 2021. The petition was filed on January 24, 2022, which is 273 days after the 2018 notice of deficiency was mailed to petitioners' last known address. The petition was received in an envelope bearing a postmark date of January 20, 2022, which is 269 days after the 2018 notice of deficiency was mailed. Both the filing and mailing dates of the petition are after the last day petitioners could timely file a petition as to their 2018 tax year.
In their objection to the motion to dismiss, petitioners assert that so much of this case relating to tax year 2018 should not be dismissed because they did not receive the 2018 notice of deficiency. However, as noted above, while respondent must demonstrate that the notice of deficiency was properly mailed to petitioners at their last known address, respondent is not required to prove actual delivery or receipt of the notice of deficiency.
The record establishes that the petition in this case was not timely filed as to petitioners' 2018 tax year, and the Court is therefore obliged to dismiss for lack of jurisdiction so much of this case relating to petitioners' 2018 tax year. 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 this Court lacks jurisdiction in this case as to petitioners' 2018 tax year, petitioners are free to pursue an administrative resolution of the 2018 tax liability directly with the IRS. Also, another remedy potentially available to petitioners, if feasible, is to pay the determined amounts for 2018, 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 as to Tax Year 2018 and To Strike is granted in that so much of this case relating to tax year 2018 is dismissed for lack of jurisdiction and deemed stricken from the Court's record. Petitioners are advised that so much of this case relating to the notice of deficiency issued for their 2019 tax year remains pending before the Court. It is further
ORDERED that petitioners' Motion to Withdraw Notice of Objection to Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2018 is denied as moot.