Opinion
11464-20
03-22-2022
MARK C. JOHNSON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed August 26, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the following grounds: (1) to the extent petitioner may seek redetermination of the deficiency determined in petitioner's Federal income tax for the 2015 taxable year by Notice of Deficiency dated December 4, 2017, the Petition in this case was not filed within the time prescribed by the Internal Revenue Code; and (2) to the extent petitioner may seek review of his Federal income taxes for the 2016, 2017, and 2018 taxable years, no notice of deficiency has been issued for such years, nor has respondent made any other determination that would permit petitioner to invoke the jurisdiction of this Court for such years.
By Order served September 1, 2021, the Court directed petitioner to file an objection, if any, to respondent's Motion. On October 1, 2021, the Court received and filed a Letter by Petitioner, wherein he objects to the granting of the Motion to Dismiss. We will recharacterize petitioner's Letter as an Objection to respondent's Motion to Dismiss and treat it as such.
For the reasons set forth below, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Background
On August 21, 2020, petitioner filed the Petition to commence this case. Among other things, petitioner states therein that he "want[s] to sue the IRS for $250,000 for decades of abuse by creating false files, false records, and presentments." No notice of deficiency or notice of determination is attached to the Petition. Instead, attached thereto is an IRS Letter 5157 dated August 10, 2020, inviting petitioner to a conference with the IRS Office of Appeals on September 1, 2020, regarding petitioner's Federal income taxes for the 2016, 2017, and 2018 taxable years. In reference to the IRS Letter 5157, petitioner writes in the Petition: "I am submitting a communique from a gentleman in San Francisco's IRS office. Why is he writing me? Writing about an Appeal process . . . Why? Are these people above the United States Tax Court?"
The Petition, which arrived at the Court in an envelope bearing a U.S. Postal Service postmark of August 17, 2020, does not reference petitioner's 2015 taxable year.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). Where this Court's jurisdiction is duly challenged, as here, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
I. Notice of Deficiency for 2015
In a case seeking redetermination of a deficiency, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§ 6212, 6213, and 6214; Rule 13(a) and (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer at his last known address. See I.R.C. § 6212(b); Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), aff'd, 935 F.2d 1282 (3d Cir. 1991); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). In order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See I.R.C. § 6213(a); Brown v. Commissioner, 78 T.C. 215, 220 (1982). We have no authority to extend this 90-day period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See I.R.C. § 7502; Treas. Reg. § 301.7502-1.
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of mailing of the notice. See I.R.C. § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). There is no indication in the record-nor has petitioner asserted, after having been given an opportunity to do so-that he was outside the United States at or about the time that the Notice of Deficiency in this case was mailed. In any event, the Petition is this case was untimely filed under either applicable period.
In his Motion to Dismiss, respondent asserts that he has attached, as Exhibits B and C, copies of (1) a Notice of Deficiency dated December 4, 2017, determining a deficiency in petitioner's Federal income tax for the 2015 taxable year, and (2) a U.S. Postal Service Form 3877, respectively, together showing that the Notice of Deficiency was sent by certified mail on December 4, 2017, to petitioner's last known address. A review of the foregoing documents establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on December 4, 2017, to the address in Louisa, Virginia, listed for petitioner in the Court's records in this case. That same address is listed on the IRS Letter 5157 attached to the Petition. Moreover, petitioner has not disputed that the aforementioned address was his last known address. We therefore take it as established.
The Notice of Deficiency states that the last date to petition this Court is March 5, 2018.
A properly completed U.S. Postal Service Form 3877 (or its equivalent) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The document attached as Exhibit C to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity, such as a U.S. Postal Service postmark date of December 4, 2017. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
This is the return address listed on the envelope bearing the Petition (as well as the envelopes bearing petitioner's other filings) in this case.
In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on December 4, 2017, the last date to file a petition with this Court as to that Notice was March 5, 2018, as stated therein. As noted, the Petition in this case was filed on August 21, 2020. And, although a petition that is delivered to the Court after the expiration of the period provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see I.R.C. § 7502, the envelope in which the Petition was mailed to the Court bears a postmark of August 17, 2020. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and we lack jurisdiction over any challenge to the Notice of Deficiency.
II. Petitioner's Federal Income Taxes for 2016, 2017, and 2018
As noted supra pp. 1-2, attached to the Petition in this case is an IRS Letter 5157 dated August 10, 2020, inviting petitioner to a conference with the IRS Office of Appeals on September 1, 2020, regarding petitioner's Federal income taxes for the 2016, 2017, and 2018 taxable years. In his Motion to Dismiss, respondent asserts that he has conducted a diligent search of his records in an attempt to determine whether a notice of deficiency has been issued to petitioner for the aforementioned years, and that, based on that search, he has determined that no such notice has been issued. Moreover, respondent further asserts that, based on that search, no other determination has been made by respondent that would permit petitioner to invoke the jurisdiction of this Court for such years.
After having been apprised of respondent's jurisdictional allegations, and given an opportunity to respond, petitioner has not provided any notice of deficiency, notice of determination, or any other notice sufficient to confer jurisdiction on this Court. As petitioner has failed to carry his burden to "establish affirmatively all facts giving rise to our jurisdiction", David Dung Le, M.D., Inc., 114 T.C. at 270, we must dismiss this case for lack jurisdiction.
Upon due consideration of the foregoing, it is
ORDERED that the Letter by Petitioner, filed October 1, 2021, is recharacterized as petitioner's Objection to respondent's Motion to Dismiss for Lack of Jurisdiction, filed August 26, 2021.
ORDERED that respondent's above-referenced Motion to Dismiss is granted, and this case is dismissed for lack of jurisdiction.