Opinion
7703-20S
04-27-2023
JOHNNIE R. JOHNSON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
Pending before the Court in this deficiency case is respondent's Motion to Dismiss for Lack of Jurisdiction, filed June 25, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. By Order served June 29, 2021, the Court directed petitioner to file an objection, if any, to the Motion. On July 29, 2021, petitioner filed such an Objection. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated December 16, 2019, respondent determined a deficiency in, and additions to, petitioner's Federal income tax for the 2013 taxable year. The Petition in this case seeks review of that Notice.
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; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). Where, as here, this Court's jurisdiction is duly challenged, 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.
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.
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 I.R.C. §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6 n.4 (collecting cases). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer's last known address by certified or registered mail. See I.R.C. § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). 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); 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 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 the 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). The Notice of Deficiency in this case is addressed to petitioner at an address within the United States, and there is no indication in the record that petitioner was outside the United States at or about the time when the Notice was mailed.
In the Motion to Dismiss, respondent asserts that the Notice of Deficiency in this case was sent by certified mail on December 12, 2019, to petitioner's last known address. United States Postal Service (USPS) tracking information corresponding to the certified mail number appearing on the copy of the Notice of Deficiency attached to the Petition indicates that respondent sent the Notice to petitioner by certified mail on December 12, 2019, to the address in Blairsden Graeagle, California listed in the Notice. That address is the same address that petitioner listed in the Petition, and he has not disputed that the Notice was mailed to his last known address. We thus take it as established for purposes of the Motion to Dismiss that the Notice was so mailed.
The USPS tracking information also indicates that the Notice of Deficiency was subsequently delivered on December 30, 2019.
Notwithstanding the fact that the Notice of Deficiency was mailed to petitioner's last known address on December 12, 2019, it bears a date of December 16, 2019. Thus, the last date to file a timely petition as to that Notice was March 16, 2020. The Petition in this case was filed by the Court on July 10, 2020. 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 I.R.C. § 7502, the envelope in which the Petition was mailed to the Court bears a postmark of March 20, 2020. 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.
Where a notice of deficiency bears a date later than its actual date of mailing, it is treated as mailed on the later date for purposes of the 90-day period for filing a petition with the Court. See Jones v. Commissioner, T.C. Memo. 1984-171. Accordingly, we use the date of December 16, 2019, to determine whether the Petition in this case was timely filed. The 90th day after this deemed date of mailing was Sunday, March 15, 2020; however, section 6213(a) provides that Sunday is not counted as the last day of the 90-day period. Hence, the last date to file a timely petition as to the Notice of Deficiency in this case was March 16, 2020.
Among other things, petitioner argues in his Objection that he "feels he did file his petition in a timely manner due to the hardships created by the Covid Pandemic."
The COVID-19 pandemic did lead to the extension of certain tax-related filing deadlines, including the deadline for filing a petition with the Tax Court; however, the circumstances of this case fall outside the relief afforded. Specifically, the Court's decision in Guralnik v. Commissioner, 146 T.C. 320 (2016), together with IRS Notice 2020-23, 2020-18 I.R.B. 742 (Apr. 27, 2020), extended to July 15, 2020, the deadline for filing petitions with due dates between March 19, 2020, and July 15, 2020. But, as noted, the due date in this case for filing a petition with the Court was March 16, 2020. Thus, the foregoing authority had no effect on the due date, and the Petition was untimely, even after accounting for the extensions granted due to the COVID-19 pandemic.
We are sympathetic to petitioner's circumstances. But Congress has limited our deficiency jurisdiction to only those cases in which a petition is timely filed, and we have no authority to extend the 90-day period set forth in section 6213(a). Hallmark Research Collective, slip op. at 42; see also Axe v. Commissioner, 58 T.C. 256, 259 (1972) ("We have no authority to extend the period provided by law for filing a petition with the Tax Court whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period."). Nevertheless, while petitioner cannot pursue his case in this Court, he may continue to pursue administrative resolution of the 2013 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
In this respect, the Court notes that respondent's Motion to Dismiss indicates that petitioner has reached a settlement with respondent's Appeals Office.
In consideration of the foregoing, it is
ORDERED that respondent's above-referenced Motion is granted, and this case is dismissed for lack of jurisdiction.