Opinion
1502-22
04-04-2023
ARON REZENE HABTEZGHI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On March 29, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed. Respondent attached to the motion a copy of the Certified Mail List as evidence of the fact that the notice of deficiency was sent to petitioners by certified mail on October 1, 2021.
The petition was filed with the Court on January 13, 2022, which date is 104 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. The petition was received by the Court in an envelope bearing a United States Postal Service postmark of January 11, 2022, which date is 102 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. Attached to the petition is a copy of the deficiency notice issued for 2018, which states that the last day for filing a timely Tax Court petition as to that notice would expire on December 30, 2021.
This Court is a court of limited jurisdiction. This Court's jurisdiction to redetermine a deficiency depends on the issuance of a valid notice of deficiency and a timely filed petition by the taxpayer. Rule 13(a) and (c); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. & Normac International v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, 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 the 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, 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 be properly addressed to the Tax Court in Washington, D.C., and 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). The Court has no authority to extend this 90 day (or 150 day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with the Court expired on December 30, 2021. However, the petition was not filed within that 90 day period.
On February 14, 2023, petitioner filed an Objection to respondent's motion to dismiss. In it, petitioner asserts that the IRS gave him false information, such as the 90 days ended on January 14, 2022, and the IRS granted petitioner an extension to file his petition. A taxpayer cannot rely on erroneous or misleading advice he may have been given by the IRS to confer jurisdiction on this Court. See Estate of Kunze v. Commissioner, 233 F.3d 948 (7th Cir. 2000), aff'g T.C. Memo. 1999-344.
The record reflects that the petition in this case was not timely filed. While the Court is sympathetic to petitioner's situation, the Court has no authority to extend the period for filing a timely petition. Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, we are obliged to dismiss this case for lack of jurisdiction. The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. Also, petitioner may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in the Federal district court or U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.