Opinion
6039-21
04-08-2022
EDUARDO ESPINOZA & OLGA AREVALOS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Emin Toro Judge
A petition commencing this case was filed on February 24, 2021. Petitioners seek review of a notice of deficiency dated November 23, 2020, issued to them for the taxable year 2018. Attached to respondent's Answer is a copy of the November 23, 2020, notice of deficiency stating that the last day for filing a timely Tax Court petition was February 22, 2021.
The petition, filed on February 24, 2021, arrived at the Court in a UPS envelope with a postmark of February 23, 2021.
An examination of the petition and the copy of the notice of deficiency suggested to the Court that the petition might not have been timely filed. In that circumstance, the Court would lack jurisdiction to review the November 23, 2020, notice of deficiency upon which this case is based. I.R.C. §§ 6213(a), 7502; Brown v. Commissioner, 78 T.C. 215, 220 (1982); Rule 13(c), Tax Court Rules of Practice and Procedure.
Accordingly, on March 14, 2022, the Court served an Order to Show Cause directing the parties to show cause in writing on or before March 28, 2022, why this case should not be dismissed for lack of jurisdiction on the ground that the petition was not timely filed. In addition, the Court ordered respondent to file a response to the order and attach thereto a copy of a postmarked United States Postal Service Form 3877, or other proof of mailing, showing the date respondent sent the deficiency notice for the taxable year 2018 to petitioners at their last known address by certified mail.
Also on March 14, 2022, respondent filed a Status Report informing the Court that respondent has conceded all issues in the notice of deficiency.
On March 21, 2022, respondent filed a Response to Court's March 14, 2022, Order providing the documentation sought by the Court. That documentation shows that respondent mailed a notice of deficiency for tax year 2018 to each of the petitioners at their last known address by certified mail on November 23, 2020.
To date, petitioners have not responded to the Court's March 14, 2022, Order to Show Cause.
On April 4, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction (Doc. 12). Respondent moves the Court to dismiss this case on the ground that the petition was not filed within the time prescribed by I.R.C. §§ 6213(a) or 7502 that would confer jurisdiction on this Court with respect to the taxable year 2018.
On April 4, 2022, this case was called from the calendar for the Court's San Francisco, California, trial session. There was no appearance by or on behalf of petitioners. Counsel for respondent appeared and was heard. Counsel for respondent advised the Court that respondent plans to implement administratively the concession that was previously reported to the Court.
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 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 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. See I.R.C. § 6213(a); see also Rule 13(c), Tax Court Rules of Practice and Procedure; Brown, 89 T.C. at 220. In this regard, and as relevant here, I.R.C. § 6213(a) provides that a petition must be filed with the Court within 90 days after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). A timely mailed petition may be treated as though it were timely filed. I.R.C. § 7502(a). Thus, if a petition is received by the Court after the expiration of the 90-day period, it is deemed to be timely if the postmark date showing on the envelope in which the petition was mailed is within the time prescribed for filing.
The record establishes that the petition in this case was not timely filed. Respondent mailed the notice of deficiency for tax year 2018 to petitioners by certified mail on November 23, 2020. Pursuant to I.R.C. §§ 6213(a) and 7503, the period for filing a petition with this Court expired on February 22, 2021. The petition was received by the Court and filed on February 24, 2021. The petition was contained in an envelope bearing a postmark UPS stamp of February 23, 2021, one day after February 22, 2021.
The Court has no authority to extend the period for timely filing the petition. Axe V. Commissioner, 58 T.C. 256, 259 (1972).
Upon due consideration, and for cause more fully appearing in the transcript of the proceeding, it is hereby
ORDERED that the Court's Order to Show Cause dated March 14, 2022, is hereby made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted in that this case is dismissed for lack of jurisdiction on the ground that the petition was not timely filed.