Opinion
23454-21
01-30-2023
DAVID ELLER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed November 5, 2021. Among other things, respondent requests therein that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. An Objection to the Motion was filed on January 10, 2022.
For the reasons set forth below, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Background
By Notice of Deficiency dated January 11, 2021, respondent determined a deficiency and an I.R.C. section 6662(a) accuracy-related penalty in petitioner's Federal income tax for the taxable year 2018. The Notice is addressed to petitioner at an address within the United States and states that the last date to file a petition with the Tax Court is April 12, 2021. The Petition seeking redetermination of the deficiency was received and filed by the Court on June 28, 2021. The envelope that contained the Petition bears a U.S. Postal Service postmark of June 23, 2021.
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6; Monge v. Commissioner, 93 T.C. 22, 27 (1989). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer at his last known address. See I.R.C. § 6212(b); Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), aff'd, 935 F.2d 1282 (3d Cir. 1991); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). In order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See I.R.C. § 6213(a); Hallmark Research Collective, slip op. at 42; Brown v. Commissioner, 78 T.C. 215, 220 (1982). We have no authority to extend this 90-day period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See I.R.C. § 7502; Treas. Reg. § 301.7502-1.
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of the mailing of the notice. See I.R.C. § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). The Notice of Deficiency in this case is addressed to petitioner at an address within the United States, and there is no indication in the record that petitioner was outside the United States at or about the time that the Notice was mailed.
In his Motion to Dismiss, respondent asserts that he has attached, as Exhibit B, a certified mailing list showing that the Notice of Deficiency was sent by certified mail on January 11, 2021, to petitioner's last known address. A review of the foregoing document establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on January 11, 2021, to the address in Kingman, Arizona, listed therein. Petitioner has not disputed that the Notice of Deficiency was sent to his last known address. We therefore take it as established that the Notice was so sent.
A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The document attached as Exhibit B to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity, such as a U.S. Postal Service postmark date of January 11, 2021. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on January 11, 2021, the last date to file a petition with this Court as to that Notice was April 12, 2021, as stated therein. As noted above, the Petition was received and filed by the Court on June 28, 2021. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see I.R.C. § 7502, the envelope in which the Petition was mailed to the Court bears a postmark of June 23, 2021. Thus, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this Court lacks jurisdiction to redetermine the deficiency.
The 90th day following the date of mailing was Sunday, April 11, 2021. Section 6213(a) provides that Sunday is not counted as the last day of the period. Consequently, the last day for filing a timely petition in this case was Monday, April 12, 2021.
In the Objection petitioner concedes that the Petition was not mailed to the Court until June 23, 2021, but requests that the Court nevertheless "take jurisdiction in this matter as it appears the Department of the Treasury is unable to make a unified determination as to what, if any, liability * * * petitioner has in this matter."
While the Court is sympathetic to petitioner's circumstances, governing law recognizes no exceptions for good cause or similar grounds that would allow petitioner to proceed in this judicial forum. Indeed, the Court has no authority to extend the 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, the Court cannot hear petitioner's case, regardless of its underlying merits or any reasons for the delay in filing the Petition.
Although petitioner may not prosecute this case in the Tax Court, we note that he may continue to pursue administrative resolution of the 2018 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.