Opinion
4399-23S
06-16-2023
DANNY JOEL GOMEZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction (motion to dismiss), filed May 4, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On May 25, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record in this case reflects that a notice of deficiency, dated November 7, 2022, for petitioner's 2021 tax year was sent by certified mail to petitioner's last known address on November 3, 2022. The notice of deficiency stated that the last day to file a Tax Court petition was February 6, 2023. The Court received and filed the petition on March 6, 2023. The envelope in which the petition was sent to the Tax Court bears a postmeter mark dated February 22, 2023.
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).
Here, based on date of the notice of deficiency, the 90-day period to timely file a Tax Court petition expired on February 6, 2023. The petition was mailed no earlier than February 22, 2023, which was 107 days after the date of the notice of deficiency. The petition was received and filed by the Court on March 6, 2023, which was 117 days after the date of the notice.
In his objection to respondent's motion to dismiss, petitioner asserts that he received the notice of deficiency long after it was mailed as a result of mail delays. However, the record does not support petitioner's claim. Certified mail tracking information from the United States Postal Service website shows that an item with the same tracking number as the notice of deficiency, which was mailed on November 3, 2022, was delivered to an individual at petitioner's address on November 7, 2022. Furthermore, as discussed above, respondent is not required to prove delivery or actual receipt of the notice of deficiency. Petitioner further suggests that his lack of legal experience contributed to the delay in filing his petition. Finally, petitioner requests that the Court grant additional time for petitioner to review the record and provide additional information.
Because the record establishes that the petition in this case was not timely filed, the Court is obliged to dismiss this case for lack of jurisdiction. 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). However, although petitioner may not prosecute this case in this Court, petitioner may still pursue an administrative resolution of the 2021 tax liability directly with the IRS.
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.