Opinion
20260-23
03-20-2024
AMAURY NUNEZ GUERRERO & ROMY VIRGINIA ORELLANA PUERTA, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
The petition underlying the above-docketed proceeding was filed on December 20, 2023, and taxable year 2021 was indicated as the period in contention. Attached to the petition was a notice of deficiency for the 2021 tax year, dated April 10, 2023, issued to petitioner Amaury Nunez Guerrero. Conversely, no notices of deficiency or determination issued to petitioner Romy Virginia Orellana by the Internal Revenue Service (IRS) were attached to the petition. The statements in the petition centered primarily on contentions that Amaury Nunez Guerrero was entitled to claim his wife Romy Virginia Orellana and her children as dependents.
On February 14, 2024, respondent filed a Motion to Dismiss for Lack of Jurisdiction, and a first supplement thereto followed on March 4, 2024. The motion, as supplemented, sought dismissal, on the grounds: (1) As to petitioner Amaury Nunez Guerrero, that the petition was not filed within the time prescribed by section 6213(a) or 7502 of the Internal Revenue Code (I.R.C.); and (2) as to petitioner Romy Virginia Orellana, that no notice of deficiency, as authorized by section 6212 and required by section 6213(a), I.R.C., to form the basis for a petition to this Court, had been sent to Romy Virginia Orellana with respect to the 2021 tax year, nor had respondent made any other determination with respect to Romy Virginia Orellana's such tax year that would confer jurisdiction on the Court, as of the time the petition herein was filed. Attached to the motion were copies of the notice of deficiency and the corresponding certified mail list (U.S. Postal Service (USPS) Form 3877), as evidence of the fact that such notice of deficiency for the taxable year 2021, dated April 10, 2023, had been sent to Amaury Nunez Guerrero by certified mail on April 6, 2023.
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 a case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rochelle v. Commissioner, 293 F.3d 740, 741 (5th Cir. 2002) (per curiam), aff 'g 116 T.C. 356 (2001); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Brown v. Commissioner, 78 T.C. 215, 220 (1982); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit).. In this regard, section 6213(a), I.R.C., 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 the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The Court has no authority to extend this 90-day (or 150-day) period. Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 166-67; Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of a Tax Court petition, a provision which becomes relevant where that date is later than the date computed with reference to the mailing date. Sec. 6213(a), I.R.C. Likewise, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
A petition is ordinarily "filed" when it is received by the Tax Court in Washington, D.C. See, e.g., Leventis v. Commissioner, 49 T.C. 353, 354 (1968). Although the Court may sit at any place within the United States, its principal office, its mailing address, and its Clerk's office are in the District of Columbia. Sec. 7445, I.R.C.; Rule 10, Tax Court Rules of Practice and Procedure. And a document that is electronically filed with the Court is filed when it is received by the Court as determined in reference to where the Court is located. Nutt v. Commissioner, No. 15959-22, 160 T.C. (May 2, 2023).
Similarly, this Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, I.R.C., depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330, I.R.C. Secs. 6320(c) and 6330(d)(1), I.R.C.; Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer have requested a hearing before the IRS Office of Appeals in reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, Final Notice of Intent To Levy and Notice of Your Right to a Hearing (or the equivalent Notice CP90, Intent to seize your assets and notice of your right to a hearing, depending on the version of the form used), or analogous post-levy notice of hearing rights under section 6330(f), I.R.C. (e.g., a Notice of Levy on Your State Tax Refund and Notice of Your Right to a Hearing).
Other types of IRS notice which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, include a Notice of Final Determination Concerning Your Request for Relief From Joint and Several Liability, a Notice of Final Determination Not To Abate Interest, a Notice of Determination of Worker Classification, Notice of Certification of Your Seriously Delinquent Federal Tax Debt to the State Department, or a Notice of Final Determination Concerning Whistleblower Action. No pertinent claims involving section 6015, 6404(h), 7436, 7345, or 7623, I.R.C., respectively, have been implicated here. Likewise absent is any suggestion that the perquisites have been met to support one of the statutorily described declaratory judgment actions that may be undertaken by the Court.
Petitioners were served with copies of respondent's motion to dismiss and supplement, and on March 18, 2024, filed a response, with attachments. Therein, petitioners did not directly counter the jurisdictional allegations set forth in respondent's motion regarding timeliness and lack of relevant notices to Romy Virginia Orellana and did not allege that petitioners had filed with the Tax Court before the statutory deadline as to the 2021 notice of deficiency. Instead, the response seemed to focus exclusively on the substance of the case insofar as concerned petitioners' efforts to file a joint return for 2021 with Romy Virginia Orellana's two children as dependents. Attachments included various notes, leases, and records reflecting their status of living together as family.
As such, at this juncture, the Court has received from petitioners nothing that denies, or even appears to address, the critical jurisdictional allegations set forth in respondent's motion, as supplemented. The only other relevant correspondence received, i.e., the petition, was likewise completely devoted to the familial status. Nothing has addressed in any way the timeliness of the original petition. Any evidence of a timely petition to the Tax Court therefore remains absent from the record, as does any evidence of a notice of deficiency or determination issued to Romy Virginia Orellana.
With respect then to a deficiency proceeding as to the notice issued to Amaury Nunez Guerrero, and as previously noted, the initial petition herein was filed with the Court on December 20, 2023, which date is 254 days after the date of the notice of deficiency for 2021 issued to petitioner. The envelope in which the petition was received by the Court bears U.S. Postal Service postage dated December 19, 2023, which date is 253 days after the date of the notice. The petition clearly was not filed or mailed within 90 days of the date of the notice mailed to petitioner, i.e., the petition was not filed or sent to the Court on or before the July 10, 2023, deadline. Moreover, petitioners have made no claim that petitioners filed a timely Tax Court petition in response to this deficiency notice, and they have not shown that a notice of deficiency was issued for any other year.
Hence, while the Court is sympathetic to petitioners' situation and understands the unintentional character of the inadvertence here, as well as the challenges of the circumstances faced and the good faith efforts made, the fundamental nature of the filing deadline precludes the case from going forward as to the notice of deficiency issued to Amaury Nunez Guerrero. As a Court of limited jurisdiction, the Court is unable to offer any remedy or assistance when a petition is filed late. Rather, the Court is barred from considering in any way petitioners' case or the correctness of petitioners' claims. Unfortunately, governing law recognizes no reasonable cause or other applicable exception to the statutory deadline, and the allegation that the petition was sent more than five months late remains unrebutted.
Additionally, with respect to a case as to Romy Virginia Orellana, jurisdiction strictly pursuant to the governing statutes is fundamental in this Court of law. It is only the existence of a notice issued to a taxpayer, not his or her status as married to or filing joint returns with another taxpayer, that permits participation as a named party in a Tax Court proceeding. Such circumstances cannot alter the fact that no notice was issued to Romy Virginia Orellana to serve as her "ticket to the Tax Court".
In conclusion, the Court has no authority to extend that 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, since petitioners have failed to establish that the petition was mailed to or filed with this Court within the required 90-day period, or that a notice was issued to Romy Virginia Orellana, this case must be dismissed for lack of jurisdiction. The Court would, however, encourage petitioners to consider or continue working administratively through the IRS, which, being entirely separate from the Tax Court, may be able to offer alternative avenues for relief, not dependent on the existence of a Tax Court case, such as audit reconsideration or a refund action.
The premises considered, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction, as supplemented, is granted, and this case is dismissed for lack of jurisdiction.