Opinion
18293-22
03-23-2023
GEORGE E. KEMP & GLENDA G. KEMP, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Travis A. Greaves Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 23, 2022. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was filed 63 days before the notice of deficiency was sent to petitioners.
Background
On August 9, 2022, petitioners filed the Petition to commence this case (Petition) with respect to their 2020 and 2021 tax years (years at issue). Line 1 of the Petition indicates that petitioners challenge a notice of deficiency. Petitioners did not attach to their Petition a copy of a notice of deficiency but instead attached a Letter 1912, Follow-Up Letter Transmitting Examination Reports, dated July 25, 2022.
On December 23, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction (Motion) on the ground that petitioners failed to identify a notice of deficiency that had been sent to them prior to the filing of the Petition. Respondent attached to his Motion a notice of deficiency that was issued to petitioners for the years at issue on October 11, 2022, which is after the date the Petition was filed to commence this case. On January 24, 2023, this Court ordered petitioners to file an objection to the Motion by February 24, 2023. Petitioners failed to do so.
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; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). 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); 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." See David Dung Le, M.D., Inc., 114 T.C. at 270; Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Petitioners invoked our jurisdiction and therefore bear the burden of establishing jurisdiction.
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, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See Rule 13(a) and (c); Mulvania v. Commissioner, 81 T.C. 65, 67 (1983); Naftel, 85 T.C. at 530; David Dung Le, M.D., Inc., 114 T.C. at 270; I.R.C. §§ 6212, 6213(a) (stating a taxpayer generally has 90 days from the mailing of a notice of deficiency to file a petition with this Court), and 6214.
In his Motion, 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 petitioners, and that, based on that search, he has determined that no such notice had been issued prior to the filing of the Petition.
Although the Tax Court Rules of Practice and Procedure require that a petition includes the notice upon which jurisdiction is based, the Petition does not include any such notice. See Rule 34(b)(8). The Follow-Up Letter Transmitting Examination Reports explains that the IRS will issue a notice of deficiency without response in 15 days, which is not a notice that would confer jurisdiction on this Court.
Petitioners have failed to "establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270. Accordingly, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Upon due consideration it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed on December 23, 2022, is granted, and this case is dismissed for lack of jurisdiction.