Opinion
27602-21
04-14-2023
RICHARD C. HILLIARD & PATRICIA D. HILLIARD, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On April 21, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to the Taxable Year 2017 and to Strike on the ground that the petition was not timely filed with respect to tax year 2017. Respondent attached to the motion a copy of the certified mail list as evidence of the fact that the notice of deficiency for tax year 2017 was sent to petitioners by certified mail on December 8, 2020.
The petition was filed on August 11, 2021, which date is 246 days after the date the notice of deficiency for tax year 2017 was mailed to petitioners. The petition was received by the Court in an envelope bearing a Click-N-Ship date of August 6, 2021, which date is 241 days after the date the notice of deficiency for tax year 2017 was mailed to petitioners.
This Court is a court of limited jurisdiction. This Court's jurisdiction to determine a deficiency in income tax depends on the issuance of a valid notice of deficiency and a timely filed petition. 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. 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 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. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with this Court for tax year 2017 expired on March 8, 2021. However, the petition was not filed within that 90 day period.
On February 21, 2023, petitioners filed a Response to Motion to Dismiss for Lack of Jurisdiction as to the Taxable Year of 2017 and to Strike, in which they do not dispute the jurisdictional allegations set forth in respondent's motion. Instead, petitioners argue that equitable tolling should apply.
While the Court is sympathetic to petitioners' situation, governing law recognizes no exceptions for good cause or similar grounds that would allow them to proceed in this judicial forum as to tax year 2017. Axe v. Commissioner, 58 T.C. 256 (1972). Accordingly, since the petition was not filed within the required 90-day period, tax year 2017 must be dismissed for lack of jurisdiction.
The fact that the Court is obliged to dismiss tax year 2017 for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. In addition, if financially feasible, petitioners 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 Federal district court or the 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 above-referenced motion is granted in that so much of this case as relates to tax years 2017 is dismissed for lack of jurisdiction. Petitioners are reminded that so much of this case as relates to tax year 2018 remains pending before the Court.