Opinion
14321-21
10-12-2021
Scott Diesel & Sandy Diesel Petitioners v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley, Chief Judge
On September 1, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction on the grounds that: (1) the petition was not filed timely as to the deficiency notice dated October 9, 2018, issued to petitioner Scott Diesel for taxable year 2013; and (2) no notice of deficiency or other notice of determination was issued to petitioners for taxable year 2013 that would permit petitioners to invoke the Court's jurisdiction in this case. Among other things, in support of his motion, based on a diligent search of respondent's records, respondent states he has determined that no notice of deficiency or other notice of determination was issued to petitioners for taxable year 2013 that would confer jurisdiction upon this Court in this case. On October 4, 2021, petitioners filed their Objection to respondent's motion to dismiss.
On October 4, 2021, petitioner Scott Diesel further filed an Application for Waiver of Filing Fee.
The record reflects that respondent sent by certified mail a notice of deficiency for 2013 to petitioner Scott Diesel at his last known address on October 9, 2018. The 90-day period for filing a timely petition with the Court under I.R.C. section 6213(a) as to that deficiency notice expired on January 7, 2019. The petition, filed April 28, 2021, arrived at the Court in an envelope bearing a U.S. Postal Service postmark dated April 16, 2021-- well after the statutory 90-day period expired.
The Tax 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 deficiency case, the jurisdiction of the Court depends on (1) the issuance by the Commissioner of a notice of deficiency, and (2) the filing of a petition 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). Rule 13(a) and (c), Tax Court Rules of Practice and Procedure; Mulvania v. Commissioner, 81 T.C. 65, 67 (1983; Brown v. Commissioner, 78 T.C. 215, 220 (1982). The notice of deficiency has been described as "the taxpayer's ticket to the Tax Court" because without it, there can be no prepayment judicial review by this Court of the deficiency determined by the Commissioner. Mulvania v. Commissioner, 81 T.C. at 67.
In their Objection petitioners do not deny the jurisdictional allegations set forth in respondent's motion to dismiss. Rather, petitioners instead assert Mr. Diesel's right to challenge that October 9, 2018, deficiency notice should thus not be precluded. Contrary to petitioner's argument, however, a notice of deficiency that is mailed to the taxpayer's last known address in accordance with the procedures under I.R.C. section 6212(a) and (b)(1) is valid even if it is never actually received by the taxpayer. Pyo v. Commissioner, 83 T.C. 626, 632 (1984).
As indicated above, the record reflects the petition was filed untimely as to the October 9, 2018, deficiency notice issued to petitioner Scott Diesel for 2013. The Court has no authority to extend the statutory period for filing a timely petition. Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, the Court lacks jurisdiction here to redetermine a deficiency in petitioner Scott Diesel's 2013 tax. I.R.C. sec. 6213(a), 7502; Brown v. Commissioner, 78 T.C. at 220; Rule 13(c), Tax Court Rules of Practice and Procedure.
The record further reflects that no notice of deficiency or other notice of determination was issued to petitioners for 2013 that would confer jurisdiction upon this Court in this case. Accordingly, we are obliged to dismiss this case for lack of jurisdiction.
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction, filed September 1, 2021, is granted and this case is dismissed for lack of jurisdiction. It is further
ORDERED that Mr. Diesel's Application for Waiver of Filing Fee is denied.