Opinion
20827-22
10-02-2023
GABRIEL GAMEZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Joseph W. Nega Judge
This case is calendared for trial during the Court's October 16, 2023, Dallas, Texas, trial session. On September 28, 2023, the parties filed a Proposed Stipulated Decision.
Upon further review of the record in the above-docketed matter, it appears that the Petition may not have been timely filed. The Petition seeks review of a Notice of Deficiency dated June 14, 2022, and addressed to petitioner at a mailing address within the United States. This suggests that the 90-day period for filing a timely petition with this Court as to that Notice may have expired on September 12, 2022, as stated in the Notice. The Court received and filed the Petition on September 14, 2022. The Petition arrived in an envelope bearing a "FedEx Priority Overnight" label with a shipping date of September 13, 2022. Both the filing and shipping dates are beyond the 90-day filing period. If, as it appears, the Petition was not timely filed, we would lack jurisdiction over this matter.
This Court's jurisdiction in a deficiency case depends on the issuance of a notice of deficiency and the timely filing of a petition within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the issuance of the notice. See Internal Revenue Code (I.R.C.) §§ 6213(a), 7502; Rule 13(c), Tax Court Rules of Practice and Procedure; Pugsley v. Commissioner, 749 F.2d 691, 692 (11th Cir. 1985); see also Allen v. Commissioner, 2022 WL 17825934 (11th Cir. 2022); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Brown v. Commissioner, 78 T.C. 215, 220 (1982). If the conditions of I.R.C. section 7502 are satisfied, a petition which is timely mailed may be treated as having been timely filed.
Upon due consideration, it is
ORDERED that this case is stricken from the above-referenced trial session, and the parties are excused from appearing at the calendar call on October 16, 2023. It is further
ORDERED that, on or before November 1, 2023, the parties shall show cause in writing why the Court, on its own motion, should not dismiss this case for lack of jurisdiction on the ground that the Petition was not timely filed. It is further
ORDERED that respondent shall attach to his response a postmarked U.S. Postal Service Form 3877, or other proof of mailing, showing that the Notice of Deficiency upon which this case is based was sent by certified or registered mail to petitioner at his last known address on or about June 14, 2022. Failure to comply with this Order may result in the dismissal of this case or other appropriate action by the Court. The parties are advised that action on the Proposed Stipulated Decision, filed September 28, 2023, will be held in abeyance pending further direction by the Court. It is further
ORDERED that jurisdiction is retained by this Division of the Court.