Opinion
10154-21
01-18-2022
FRANCISA FONTANEZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed June 28, 2021. Therein, respondent requests 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. By Order served August 3, 2021, the Court directed petitioner to file an objection, if any, on or before August 24, 2021.
On August 16, 2021, the Court received and filed petitioner's Letter Dated August 6, 2021. Among other things, the Letter requests that the Court consider the Petition in this case. Attached to the Letter is a copy of the Court's Order served August 3, 2021. In view of the foregoing, we will recharacterize petitioner's Letter as an Objection to respondent's Motion to Dismiss and treat it as such.
For the reasons set forth below, we will grant respondent's Motion and dismiss this case for lack of jurisdiction.
Background
On March 17, 2021, the Court received and filed a document as the Petition to commence this case. That document consists solely of a Notice of Deficiency dated November 23, 2020, issued to petitioner with respect to her Federal income tax for the 2018 taxable year. The Notice of Deficiency states that the last date to petition this Court is February 22, 2021. The Petition was delivered to the Court by the U.S. Postal Service in an envelope bearing a postmark of March 12, 2021.
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; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). Where 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. v. Commissioner, 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, 6213, and 6214; Rule 13(a) and (c); 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); 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.
All Rule references are to the Tax Court Rules of Practice and Procedure.
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). There is no indication in the record-nor has petitioner asserted, after having been given an opportunity to do so-that she was outside the United States at or about the time that the Notice of Deficiency in this case was mailed.
In his Motion to Dismiss, respondent asserts that he has attached, as Exhibit B, a certified mail list showing that the Notice of Deficiency was sent by certified mail on November 23, 2020, 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 November 23, 2020, to an address in Poughkeepsie, New York. The address to which respondent sent the Notice of Deficiency is the same address that petitioner listed on the envelope bearing the Petition and the envelope bearing her Objection to respondent's Motion to Dismiss. Moreover, petitioner has not disputed that the aforementioned address is her last known address. We therefore take it as established.
A properly completed certified mail list, like a U.S. Postal Service Form 3877, 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 November 23, 2020. 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 November 23, 2020, the last date to file a petition with this Court was February 22, 2021, as stated in the Notice of Deficiency. As noted above, the Petition in this case was filed on March 17, 2021. And, although a petition that is delivered to the Court after the expiration of the period provided by I.R.C. § 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 March 12, 2021. Consequently, the Petition was not filed within the period prescribed by I.R.C. §§ 6213(a) and 7502, and we lack jurisdiction over any challenge to the Notice of Deficiency.
Petitioner's Objection does not deny the jurisdictional allegations set forth in respondent's Motion to Dismiss; rather, the Objection is generally directed toward requesting that the Court send petitioner a tax refund or stimulus payment to which she believes she is entitled. 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. As noted above, 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, as petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction", David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 270, we must dismiss this case for lack of jurisdiction.
However, we note that, while petitioner may not prosecute this case in the Tax Court, she may continue to pursue administrative resolution of the 2018 tax liability with the 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 the claim is denied or not acted upon after six months, petitioner may file a suit for refund in the appropriate Federal 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 petitioner's Letter Dated August 6, 2021, is recharacterized as petitioner's Objection to Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.