Opinion
4908-22S
02-02-2023
WILLIAM M. EASTERBROOKS & JESSICA S. EASTERBROOKS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Ronald L. Buch, Judge.
This case is before us on the Commissioner's motion to dismiss for lack of jurisdiction. A petition in a deficiency case generally must be filed within 90 days of the Commissioner's mailing of a notice of deficiency. I.R.C. § 6213(a) (unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure). The Easterbrookses' petition was mailed to and received by the Court more than 90 days after the Commissioner mailed the notice of deficiency. Because their petition is untimely, we must dismiss this case for lack of jurisdiction.
BACKGROUND
The Commissioner prepared a notice of deficiency addressed to Mr. and Mrs. Easterbrooks determining a deficiency in federal income tax for 2019. The notice was dated November 15, 2021, and relying on that date, the notice stated that the last day to file a petition with this Court was February 14, 2022.
The certified mailing records show slightly different information. The Postal Service Form 3877 shows that two notices of deficiency were mailed to the Easterbrookses on November 10, 2021, one addressed to each spouse. The Commissioner attached to his motion to dismiss a copy of the notice that was mailed to Mr. Easterbrooks, which can be determined because the certified mail receipt number printed on the notice of deficiency matches the number on the certified mail record for the notice mailed to Mr. Easterbrooks. Using the USPS tracking service available online from the United States Postal Service (https://tools.usps.com/go/TrackConfirmAction_input), the notices mailed to each of the Easterbrookses can be tracked. They show identical information. The notices were mailed on November 10, 2021, arrived in a Jacksonville, Forida distribution center on November 12, departed that same facility on November 14, but were never delivered. The tracking information for both notices ends with the entry: "In Transit, Arriving Late" dated November 18, 2021.
After the Commissioner mailed the notice of deficiency, the Easterbrookses' representative continued to work with the Commissioner to resolve their liability. In a December 9, 2021 letter to the Easterbrookses, the Commissioner explained why he declined to reconsider his determination based on additional information the Easterbrookses provided. That letter included the statement, "You may file a petition to ask the United States Tax Court to re-determine the amount of tax you owe. The last date to petition the Tax Court is February 14, 2022." (Emphasis in original.) That letter also bears a handwritten notation that it was received on December 11, 2021. The Commissioner sent a separate letter dated December 9, 2021, to the Easterbrookses' representative. That letter included a Form 886-A, Explanation of Items, that stated: "Your time to petition the United States Tax Court will end on February 14th, 2022. You may continue to work with us to resolve your tax matter, but we cannot extend your time to petition." (Emphasis in original.) The parties continued to correspond, and in a letter dated January 13, 2022, the Commissioner again explained why information provided by the Easterbrookses was insufficient to cause him to reconsider his previous determination. That letter went on to state: "You may file a petition to ask the United States Tax Court to re-determine the amount of tax you owe. The last date to petition the Tax Court is February 22, 2022." (Emphasis in original.) The Commissioner also enclosed with that letter another copy of the Form 886-A, which continued to state that the time to petition the Court would end February 14, 2022.
On February 18, 2022, the Easterbrookses' counsel mailed a petition to the Court, and the Court received the petition on February 24, 2022. The Commissioner moved for dismissal for lack of jurisdiction because the petition was untimely. See I.R.C. § 6213(a). Through counsel, the Easterbrookses argue that the Commissioner should be estopped from arguing that the petition is untimely because the Commissioner's January 13, 2022 letter stated that the deadline was February 22, 2022. In doing so, they fail to mention the other items of correspondence that stated that the deadline was February 14, 2022. Each of these pieces of correspondence was attached to the Easterbrookses' petition.
DISCUSSION
Our jurisdiction in a deficiency case is predicated on a valid notice of deficiency and a timely petition. I.R.C. §§ 6212, 6213, 7442; Rules 13, 20; Dees v. Commissioner, 148 T.C. 1, 3-4 (2017). A petition is timely if filed within 90 days of the mailing of the notice of deficiency. I.R.C. § 6213(a). It is also timely if filed by the last date for filing as set forth in the notice of deficiency. Id. (last sentence). This rule allows a taxpayer to rely on the date set forth in the notice of deficiency, not in any other piece of correspondence.
If a petition is not timely, we do not have jurisdiction to redetermine the Commissioner's deficiency. Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (Nov. 29, 2022). We do not have equitable powers to extend the deadline. Id., slip op. at 24. Because the Easterbrookses filed their petition after the 90-day period for filing a petition from a notice of deficiency, we must grant the Commissioner's motion.
We note that the Easterbrookses are not without remedies. They may administratively seek audit reconsideration. Also, they may pay the tax liability and file and pursue a claim for refund. See I.R.C. §§ 6511(a), 6532(a), and 7422(a). And if the Commissioner initiates collection activity, they may avail themselves of the collection procedures that ultimately give rise to an opportunity to return to this Court and challenge the underlying liability. See I.R.C. §§ 6320 and 6330.
CONCLUSION
The Easterbrookses filed their petition after the 90-day deadline for filing a petition lapsed. Because the deadline to file a petition in a deficiency case is jurisdictional and we lack equitable powers to extend that deadline, it is
ORDRERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed.