Opinion
14995-22S
03-21-2023
ROGER L. GIBBONS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed August 25, 2022. In respondent's motion, he asserts that this case should be dismissed on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code.
The record in this case reflects that a notice of deficiency, dated November 29, 2021, with respect to petitioner's 2019 tax year was sent by certified mail to petitioner's last known address on November 24, 2021. On June 17, 2022, the Court received from petitioner the petition challenging that notice of deficiency. The petition was received in an envelope that bears a U.S. Postal Service shipping label showing that the petition was mailed to the Court on June 15, 2022.
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 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 Research 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 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). 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 90-day period for filing a petition with respect to the notice of deficiency for petitioner's 2019 tax year expired on February 28, 2022. In addition, the notice of deficiency stated that the last day for petitioner to file a Tax Court petitioner was February 28, 2022. Accordingly, the petition in this case, which was filed on June 17, 2022, and mailed to the Court on June 15, 2022, was neither filed nor mailed within the time prescribed in the Internal Revenue Code. We have no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
However, although petitioner may not prosecute this case in this Court, petitioner may continue to pursue administrative resolution of the 2019 tax liability directly with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amount, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring 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 respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.