Opinion
1724-23S
08-29-2023
ERIC DAVID HAMMER & BARRIE HAMMER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
On November 14, 2022, respondent sent to petitioners, by certified mail to their last known address, a Notice of Deficiency for the taxable year 2020. The Notice was addressed to petitioners at an address within the United States and informed them that the last date to file a petition with this Court was February 13, 2022.
On February 21, 2023, petitioners electronically filed the Petition to commence this case. The Petition seeks redetermination of the aforementioned deficiency.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213; Rule 13(a) and (c); Hoffenberg v. Commissioner, 905 F.2d 665 (2d Cir. 1990) (per curiam), aff'g T.C. Memo. 1989-676; Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 6 n.4 (Nov. 29, 2022) (collecting cases). Generally, a notice of deficiency will be deemed valid for this purpose if it is sent to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition must be filed within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Rsch. Collective, slip op. at 42. However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Because the Notice of Deficiency was mailed to petitioners' last known address on November 14, 2022, the last date to file a petition with this Court as to that Notice was February 13, 2023. As noted above, the Petition in this case was electronically filed on February 21, 2023. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
The 90th day after the date of mailing was Sunday, February 12, 2023; however, section 6213(a) provides that Saturdays, Sundays, and legal holidays in the District of Columbia are not counted as the last day of the 90-day period. Hence, the last date to file a petition as to the Notice of Deficiency in this case was February 13, 2023.
Although petitioners contend that respondent "reissued" the Notice of Deficiency on December 5, 2022, "restarting the 90-day clock" in petitioners' view, the document to which petitioners refer is an Internal Revenue Service (IRS) Notice CP2000 dated December 5, 2022. Contrary to petitioners' contention, the issuance of that IRS communication did not extend the time for filing a timely petition as to the Notice of Deficiency. Indeed, we note that the IRS Notice CP2000 explicitly stated: "The 90-day period has not been extended by our consideration of your case."
We are sympathetic to petitioners' circumstances. But we have no authority to extend the time for filing a petition for redetermination of a deficiency "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). Nevertheless, while petitioners cannot pursue their case in this Court, they may continue to pursue administrative resolution of the 2020 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioners, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioners may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed April 13, 2023, is granted, and this case is dismissed for lack of jurisdiction.