Opinion
13382-23
05-22-2024
KIMBERLY HAUER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
KATHLEEN KERRIGAN CHIEF JUDGE.
On February 16, 2024, the parties filed a Joint Proposed Stipulated Decision for the Court's consideration. By Order to Show Cause, dated March 11, 2024, the Court directed the parties to show cause why this case should not be dismissed for lack of jurisdiction on the ground that the petition was not timely filed. On March 27, 2024, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed with respect to tax year 2021. Respondent attached to the motion a copy of a postmarked United States Postal Service Form 3877 as evidence of the fact that the notice of deficiency was sent to petitioner by certified mail on May 8, 2023. The notice of deficiency was dated May 8, 2023, and states that the last day for filing a timely Tax Court petition as to that notice would expire on August 7, 2023.
The petition was filed on August 17, 2023, which date is 101 days after the notice of deficiency for tax year 2021 was mailed to petitioner. The petition was received by the Court in an envelope bearing a United States Postal Service postmark of August 11, 2023, which date is 95 days after the date the notice of deficiency for tax year 2021 was mailed to petitioner.
Like all federal courts, the Tax Court is a court of limited jurisdiction. 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 deficiency case, this Court's jurisdiction to determine a deficiency in income tax depends on the issuance of a valid notice of deficiency and the timely filing of a petition 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). Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); 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).
As mentioned above, the notice of deficiency states that the last day for filing a timely Tax Court petition as to that notice would expire on August 7, 2023. However, the petition was not filed within that period.
On April 8, 2024, petitioner filed a Response to Order to Show Cause, in which she states that she is certain that she mailed the petition on or before August 7, 2023.
Generally, a timely mailed petition may be treated as though it were timely filed. I.R.C. sec. 7502(a). Thus, if a petition is received by the Court after the expiration of the 90-day (or 150-day, if applicable) period, it is nevertheless deemed to be timely if the date of the U.S. Postal Service postmark stamped on the envelope in which the petition was mailed is within the time prescribed for filing. Although extrinsic evidence is sometimes allowed to prove the date of mailing where an envelope containing a Tax Court petition lacks a postmark or the postmark is illegible, such evidence is irrelevant where the envelope bears a legible U.S. Postal Service postmark after the 90th day prescribed for filing a timely petition. See Shipley v. Commissioner, 572 F.2d 212, 214 (9th Cir. 1977); Kahle v. Commissioner, 88 T.C. 1063, 1068-1069 (1987); Wiese v. Commissioner, 70 T.C. 712, 715 (1978). Accordingly, petitioner is not permitted to use extrinsic evidence to prove the petition was timely filed because that petition was received by the Court in an envelope that bears a legible, untimely (August 11, 2023) postmark.
The record in this case establishes that the petition was not timely filed and, accordingly, the Court is obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing. See Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioner cannot prosecute this case in this Court, petitioner may still pursue an administrative resolution of petitioner's 2021 tax liability directly with the IRS.
Upon due consideration, it is
ORDERED that the Court's Order to Show Cause, dated March 11, 2024, is hereby made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction because the petition was not filed within the period prescribed by I. R.C. section 6213(a).