Opinion
1494-21
03-21-2022
MICHAEL ALLEN JONES, 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 June 8, 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 July 8, 2021, the Court directed petitioner to file an objection, if any, to the Motion to Dismiss.
On July 29, 2021, the Court received and filed a Letter by Petitioner. Therein, petitioner states that he objects to the granting of the Motion to Dismiss. Attached to the Letter is a copy of the Court's Order served July 8, 2021. In view of the foregoing, 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
By Notice of Deficiency dated October 6, 2020, respondent determined deficiencies and section 6662(a) penalties in petitioner's Federal income taxes for the 2017 and 2018 taxable years. The Notice states that the last date to file a petition with the Tax Court is January 4, 2021. On January 11, 2021, petitioner filed a Petition seeking redetermination of the foregoing deficiencies and penalties. The Petition was sent by certified mail via the U.S. Postal Service and arrived at the Court in an envelope bearing a postmark of January 6, 2021.
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.
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, 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.
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, 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 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). In his Objection, petitioner asserts that he filed the Petition in this case at the "last minute * * * because due to the Covid lockdown [his] jobs were shut down and [he] was forced to work out of state and did not receive [his] mail on time." But 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 his Motion to Dismiss, respondent asserts that he has attached, as Exhibit A, a Substitute for Postal Service Form 3877, Certified Mailing List, showing that the Notice of Deficiency was sent by certified mail on October 6, 2020, to petitioner's last known address. A review of the foregoing document establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on October 6, 2020, to the address in Simi Valley, California, listed therein. That address is the same address listed in the Petition. Moreover, petitioner has not disputed that the Notice of Deficiency was sent to his last known address-only that at the time it was sent he was working "out of state" and did not timely receive his mail. See supra p. 2 n.2. We therefore take it as established that the Notice was so sent.
A properly completed Postal Service Form 3877 (or its equivalent, i.e., a certified mailing list) 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 A 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 October 6, 2020. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on October 6, 2020, the last date to file a petition with this Court as to that Notice was January 4, 2021, as stated therein. As noted above, the Petition was filed with the Court on January 11, 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 I.R.C. § 7502, the envelope in which the Petition was mailed to the Court bears a postmark of January 6, 2021. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code.
In his Objection, petitioner argues: "My petition was filed near the due date, but I do not believe it was late." However, petitioner does not state the reason (or reasons) why he believes his Petition was timely filed. The only further information his Objection provides is, as noted supra p. 2 n.2, that the Petition was filed at the "last minute * * * because due to the Covid lockdown [his] jobs were shut down and [he] was forced to work out of state and did not receive [his] mail on time."
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 in this case the due date for filing a petition with the Court was January 4, 2021. 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.
While the Court is sympathetic to petitioner's circumstances, governing law recognizes no exceptions for good cause or similar grounds that would allow petitioner to proceed in this judicial forum. As noted above, the Court has no authority to extend the period provided by law for filing a petition "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, as petitioner has failed 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 of jurisdiction.
Nevertheless, we note that, although petitioner may not prosecute this case in the Tax Court, he may continue to pursue administrative resolution of the 2017 and 2018 tax liabilities with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amounts and thereafter file claims for refund with the IRS. If such claims are 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).
Upon due consideration of the foregoing, it is
ORDERED that the Letter by Petitioner, filed July 29, 2021, is recharacterized as petitioner's Objection to respondent's Motion to Dismiss for Lack of Jurisdiction, filed June 8, 2021. It is further
ORDERED that respondent's above-referenced Motion is granted, and this case is dismissed for lack of jurisdiction.