Opinion
7550-24
09-03-2024
ROBERT LEON DEMING, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On July 29, 2024, 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 a copy of a certified mail list (U.S. Postal Service Form 3877), as evidence of the fact that such a notice of deficiency for the taxable year 2018 dated February 28, 2022, had been sent to petitioner by certified mail on February 28, 2022. The motion also noted that the notice of deficiency for 2018 had been the subject of a proceeding at Docket No. 12046-22.
Petitioner was served with a copy of respondent's motion to dismiss and, on August 12, 2024, filed an objection, with attachments. Therein, petitioner did not deny the jurisdictional allegations set forth in respondent's motion. Rather, petitioner highlighted his efforts to address the 2018 tax matters administratively with the Internal Revenue Service (IRS) by filing his delinquent 2018 return and calling the IRS.
As a threshold matter, to the extent that petitioner may look to his submission of an amended return or other contacts with the IRS as relevant in the context of respondent's motion, the law is well settled that once a notice of deficiency has been issued, further administrative contact or consideration does not alter or suspend the running of the applicable period for filing a timely petition. Furthermore, it is equally well settled that where the Commissioner's representatives provide erroneous advice based upon a mistaken interpretation of the law, courts and the Commissioner are not bound by the agent's statements and must follow the applicable statutes, regulations, and caselaw. See, e.g., Dixon v. United States, 381 U.S. 68, 72-73 (1965); Auto. Club of Mich. v. Commissioner, 353 U.S. 180, 183 (1957); Neri v. Commissioner, 54 T.C. 767, 771-772 (1970). Thus, any potential erroneous advice by IRS personnel to petitioner is highly regrettable, but it cannot alter the legal outcome of the pending motion before us.
Similarly, "we are not a court of equity, and we cannot ignore the law to achieve an equitable end." McGuire v. Commissioner, 149 T.C. 254, 262 (2017). Although we cannot find that we have jurisdiction over petitioner's case, he may wish to continue to pursue administrative remedies with the IRS.
Prior Petition
Review of the record for the prior litigation at Docket No. 12046-22 shows that petition had been filed electronically on May 30, 2022; that it was not accompanied by payment of the Court's $60.00 filing fee; that an Order directing that the fee be paid or an application for waiver thereof be submitted was served on May 31, 2022; that no response to the Court's Order was received; and that an Order of Dismissal for Lack of Jurisdiction was entered on September 16, 2022, for failure to pay the filing fee. That Order advised: "The Court, on its own motion, will consider reinstating the case if the filing fee is paid within 30 days from the date of service of this Order. Instructions on how to pay the filing fee can be found on the Court's website at https://ustaxcourt.gov/pay_filing_fee.html." Nothing further was received Docket No. 12046-22.
The Court has no authority to vacate its dismissal of that case. See Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir. 1988), aff'g 86 T.C. 1319 (1986). Except in very limited situations, none of which has been shown to apply here, this Court lacks jurisdiction over a proceeding once a decision or dismissal for lack of jurisdiction becomes final within the meaning of section 7481, I.R.C. See sec. 6214(d), I.R.C.; Stewart v. Commissioner, 127 T.C. 109, 112 (2006); Rice v. Commissioner, T.C. Memo. 2006-236.
Current Petition
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. Rochelle v. Commissioner, 293 F.3d 740, 741 (5th Cir. 2002) (per curiam), aff'g 116 T.C. 356 (2001); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Brown v. Commissioner, 78 T.C. 215, 220 (1982); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit). 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. Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 166-67; 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).
In the present case, the time for filing a petition with this Court expired on May 31, 2022. However, the petition was not filed within that period. The petition arrived at the Court and was filed on May 7, 2024-a date well beyond the last day to timely file in response to the notice issued February 28, 2022-and nothing in the record establishes that it was timely mailed. 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 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.