Opinion
9245-22S
07-27-2023
JOSEPH WILLIAM FOLEY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
The petition commencing this case was filed with the Court on April 18, 2022. Petitioner challenges a notice of deficiency, dated March 27, 2018, issued for his 2014 and 2015 tax years.
On June 24, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction (motion to dismiss) on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. Respondent attached to his motion a copy of a postmarked certified mail list showing that notices of deficiency concerning petitioner's 2014 and 2015 tax years were sent by certified mail to two addresses for petitioner on March 27, 2018. On December 16, 2022, the Court issued an Order directing petitioner to file an Objection, if any, to respondent's motion to dismiss on or before January 13, 2023. After receiving no response from petitioner, the Court entered an Order of Dismissal for Lack of Jurisdiction on March 15, 2023.
On April 10, 2023, petitioner responded by filing a Motion to Vacate or Revise Pursuant to Rule 162. Respondent filed a Response to Motion to Vacate or Revise Pursuant to Rule 162 on May 25, 2023. On June 14, 2023, petitioner filed a Reply to Response to Motion to Vacate or Revise Pursuant to Rule 162
The disposition of a motion under Rule 162 of the Tax Court Rules of Practice and Procedure to vacate or revise a decision rests within the Court's discretion, and such motions generally will not be granted absent a showing of unusual circumstances or substantial error, e.g., mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, fraud, or other reason justifying relief. See, e.g., Rule 1(a), Tax Court Rules of Practice and Procedure; Fed.R.Civ.P. 60(b); Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999 (1978); Brewer v. Commissioner, T.C. Memo. 2005-10; Kun v. Commissioner, T.C. Memo. 2004-273; Lowry v. Commissioner, T.C. Memo. 2004-10; Estate of Miller v. Commissioner, T.C. Memo. 1994-25.
Like all federal courts, the Tax 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 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 of Procedure; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (I.R.C.) section 6213(a) 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 a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., it will be considered timely filed. See I.R.C. sec. 7502(a)(1). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff 'g 88T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89T.C. 806, 808 (1987). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
Based on the date the notices of deficiency were mailed to petitioner--March 27, 2018--the 90-day period for timely filing a Tax Court petition expired on June 25, 2018. As discussed above, the Court received and filed the petition on April 18, 2022, a date well after the last day on which to timely file a petition with the Court. The petition was received in an envelope which does not bear a postmark.
In his motion to vacate and reply, petitioner does not dispute the validity of the notices of deficiency or that they were sent to his last known address. Petitioner furthermore concedes that the petition was not filed within the time prescribed by the Internal Revenue Code. Nevertheless, petitioner asserts that he did not actually receive the notice of deficiency and, as a result, was deprived of the ability to file a timely petition. Accordingly, under these circumstances, petitioner contends that the Court should exercise jurisdiction in this case. However, as noted above, respondent is not required to prove delivery or actual receipt of the notice of deficiency. We have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). Accordingly, the record establishes that the petition in this case was not timely filed and that the Court properly dismissed this case for lack of jurisdiction.
Here, petitioner has shown no unusual circumstance or substantial error that would justify vacating our previously entered Order of Dismissal for Lack of Jurisdiction. Furthermore, the available record indicates that, even if we were to vacate the Order of Dismissal for Lack of Jurisdiction, our conclusions on the merits of this case would not change. Thus, for the reasons stated above, a similar order of dismissal would be issued.
Upon due consideration of the foregoing, it is ORDERED that petitioner's Motion to Vacate or Revise Pursuant to Rule 162 is denied.