Opinion
5725-21S
01-31-2022
MICHAEL N. HOUSE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy Special Trial Judge
This case is calendared for trial at the February 7, 2022, Tampa, Florida, Remote Trial Session of the Court. On February 11, 2021, petitioner filed a petition to commence this case, seeking review of a notice of deficiency issued to him for his 2019 tax year. On June 28, 2021, respondent filed an Answer in this case, and attached a copy of the notice of deficiency.
By Order served December 29, 2021, the Court issued an Order to Show Cause (OSC) directing respondent to file a response with the postmarked U.S. Postal Service Form 3877, or other proof of mailing, showing the November 2, 2020, deficiency notice for 2019, upon which this case is based, was sent by certified or registered mail to petitioner at his last known address on or about November 2, 2020. The OSC also directed both parties, on or before January 18, 2022, to show cause, in writing, why the Court should not dismiss this case for lack of jurisdiction on the ground the petition was not timely filed.
Respondent filed a response on January 13, 2022, and attached the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioner's last known address, by certified mail on October 29, 2020. Respondent also agrees that this case should be dismissed for lack of jurisdiction on the ground that the petition was not timely filed. Petitioner did not file a response although requested by the Court to do so. The Court held a telephone conference with the parties on January 31, 2022. During this telephone conference, petitioner provided the Court with his current address of record.
The Tax Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In addition, 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 case seeking redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice of Procedure; Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (I.R.C.) section6213(a) provides that the petition must be filed with the Court within 90 days after a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., 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 bear a postmark with a date that is on or before the last day for timely filing a petition. See I.R.C. sec. 7502(a)(2).
Section references are to the Internal Revenue Code of 1986, as amended.
The record reflects that respondent mailed a notice of deficiency for 2019, on October 29, 2020. The 90-day period for filing a timely petition with the Court expired on February 1, 2021, which date was not a Saturday, a Sunday, or a legal holiday in the District of Columbia. The Court only has jurisdiction if the petition was mailed using the U.S. Postal Service within the 90-day period beginning November 2, 2020 and ending February 1, 2021. See I.R.C. sec. 6213(a). The petition arrived at the Court in an envelope with a postmark of February 2, 2021. The Court concludes that petitioner did not timely file a petition in this case and therefore, the Court lacks jurisdiction to redetermine the deficiency for tax year 2019.
Accordingly, upon due consideration of the foregoing, it is
ORDERED that petitioner's address on the Court's record is changed to: 817 French Creek Road, Apt. 6, Tampa, Florida 33613. It is further
ORDERED that the Court's Order To Show Cause, issued on December 29, 2021, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the ground the petition was not timely filed.