Opinion
14110-23
11-27-2023
JOEL A. DILILLO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On October 24, 2023, respondent filed in the above-docketed matter a Motion To Dismiss for Lack of Jurisdiction, on the ground that the petition herein 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 (USPS) Form 3877), as evidence of the fact a notice of deficiency for the taxable year 2018, dated May 15, 2023, had been sent to petitioner by certified mail on May 11, 2023.
The petition was filed with the Court on August 31, 2023, which date is 108 days after the date of the notice of deficiency for tax year 2018 mailed to petitioner. The record contains no evidence of the specific date on which the envelope in which the petition was received by the Court was mailed, but such date was on or after August 21, 2023, as will be further detailed below. August 21, 2023, is 98 days after the date of the notice of deficiency.
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; 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). 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. Sec. 7445, I.R.C.; Rule 10, Tax Court Rules of Practice and Procedure. 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 August 14, 2023. However, the petition was not filed within that period.
Petitioner was served with a copy of respondent's motion to dismiss and, on November 16, 2023, filed an objection, with attachment. Therein, petitioner did not directly deny the jurisdictional allegations set forth in respondent's motion, i.e., petitioner did not claim to have sent a petition or other correspondence to the Tax Court before the stated deadline of August 14, 2023. Rather, petitioner appeared to take the position that the petition should be considered timely based on timely mailing to the Internal Revenue Service (IRS), as follows: "The Petition was filed timely on August 4, 2023. As a result of an administrative error, the envelope with the Petition was mailed to the Internal Revenue Service. My files include labels that have the IRS mailing address and also the U.S. Tax Court address. Obviously, I took the wrong label that had the IRS address rather than the U.S. Tax Court label." Attached to the objection was a bank statement reflecting a charge paid to the USPS on August 5, 2023, for an amount corresponding to the postage on the envelope addressed to the IRS (a charge of a different amount paid to the USPS on August 4, 2023, was also shown).
Generally consistent with petitioner's representations regarding mailing, the record herein reflects that the petition was initially sent to the IRS in Holtsville N Y. To wit, enclosed within the no longer extant envelope in which the petition was received by the Court was another envelope addressed "Brookhaven IRS Center, COIC Unit, P.O. Box 9007, Holtsville, NY 11742-9007", with name and address of petitioner's cousel as the return address. The document was received by the IRS in Holtville on August 21, 2023, as shown by date stamps on the multiple pages. The IRS presumably then placed all these materials within a larger envelope addressed to the Tax Court and resent them to the Court on or after August 21, 2023. As noted previously, they arrived at the Court on August 31, 2023, and were filed to commence this case.
Respondent on August 20, 2023, also filed a response to petitioner's objection, reiterating the salient factual circumstances and highlighting the unavailability of equitable relief. See, e.g., Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-196 (9th Cir. 2020); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126 (2022).
Hence, given the foregoing, petitioner's objection and other documents in the record show that after receiving the notice of deficiency, petitioner endeavored (albeit potentially in error) to communicate with and to submit information to, and/or 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.
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.
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 petitioners' claims. Unfortunately, governing law recognizes no reasonable cause or other applicable exception to the statutory deadline, and the allegation that the petition was sent at least seven days 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.