Opinion
30667-21
01-12-2023
BRENDA B. DIVINO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On January 13, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed with respect to tax year 2018. Respondent attached to the motion a copy of the certified mail list as evidence of the fact that the notice of deficiency was sent to petitioner by certified mail on June 1, 2021.
The petition was filed on September 15, 2021, which date is 106 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. The petition was received by the Court in an envelope bearing an illegible United States Postal Service postmark. However, the petition was sent certified mail. Respondent attached to his motion United States Postal Service tracking for the petition showing that the petition was in the possession of the United States Postal Service on September 10, 2021, which date is 101 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. Attached to respondent's motion is a copy of the deficiency notice issued for 2018, which states that the last day for filing a timely Tax Court petition as to that notice would expire on August 30, 2021.
This Court is a court of limited jurisdiction. This Court's jurisdiction to determine a deficiency in income tax depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a) and (c); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, I.R.C. section 6213(a) provides that the petition must be filed with the Court 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. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with this Court expired on August 30, 2021. However, the petition was not filed within that 90 day period.
On May 24, 2022, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction, in which she does not dispute the jurisdictional allegations set forth in respondent's motion. Instead, petitioner argues the merits of her case.
While the Court is sympathetic to petitioner's situation, governing law recognizes no exceptions for good cause or similar grounds that would allow him to proceed in this judicial forum. Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256 (1972). Accordingly, since the petition was not filed within the required 90 day period, this case must be dismissed for lack of jurisdiction.
The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. In addition, if financially feasible, petitioner may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.