Opinion
24823-21
06-01-2023
BRIAN R. HOOGEVEN & BARBARA L. HOOGEVEN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
This case for the redetermination of deficiencies is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction as to the Taxable Year 2017 and to Strike. Petitioners oppose the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction as to the taxable year 2017.
On August 27, 2020, respondent sent a Notice of Deficiency to petitioners' last known address. The Notice was sent by certified mail and determined a deficiency in petitioners' federal income tax for the taxable year 2017.
On July 9, 2021, the Court received and filed the Petition to commence this case. The Petition was delivered to the Court by FedEx in an envelope bearing a "FedEx Priority Overnight" label dated July 7, 2021. Among other things, the Petition seeks review of the Notice of Deficiency issued to petitioners for 2017.
The Petition also seeks review of a Notice of Deficiency issued to petitioners for the taxable year 2018. There is no dispute that the Petition was timely filed as to that Notice.
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); Hallmark Research 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 Research Collective, slip op. at 42; see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020). 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 for 2017 was mailed to petitioners' last known address on August 27, 2020, and such address was within the United States, the last date to file a petition with this Court as to that Notice was November 25, 2020. As noted above, the Petition in this case was filed on July 9, 2021. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see § 7502, the Petition in this case was delivered to the Court in an envelope bearing a label that indicates the Petition was given to FedEx on July 7, 2021, for delivery. 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 as to the taxable year 2017.
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction as to the Taxable Year 2017 and to Strike, filed November 19, 2021, is granted, and this case is dismissed for lack of jurisdiction as to the taxable year 2017. It is further
ORDERED that all references in the Petition to the taxable year 2017 are deemed stricken.
Petitioners are informed that so much of this case relating to the Notice of Deficiency issued to them for the taxable year 2018 remains pending before the Court.