Opinion
5702-23
07-05-2023
KHALID K. KHAN & SAMEEN KHALID, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On May 17, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed with respect to a notice of deficiency for tax year 2020 and no notice of determination concerning collection action was issued to petitioners for tax year 2020, nor has respondent made any other determination with respect to tax year 2020 that would confer jurisdiction on this Court. Respondent attached to the motion a copy of the certified mail list as evidence of the fact that the notice of deficiency was sent to petitioners by certified mail on December 5, 2022.
The petition was electronically filed on April 18, 2023, which date is 134 days after the date the notice of deficiency for tax year 2020 was mailed to petitioners. Attached to the respondent's motion is a copy of the deficiency notice of deficiency issued for 2020, which states that the last day for filing a timely Tax Court petition as to that notice would expire on March 6, 2023.
This 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 a case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the issuance by the Commissioner of a valid notice of deficiency to the taxpayer. Rule 13(a), Tax Court Rules of Practices and Procedure; Frieling v. Commissioner, 81 T.C. 42, 46 (1983). The notice of deficiency has been described as "the taxpayer's ticket to the Tax Court" because, without it, there can be no prepayment judicial review by this Court of the deficiency determined by the Commissioner. Mulvania v. Commissioner, 81 T.C. 65, 67 (1983). This Court's jurisdiction to redetermine a deficiency also depends on a timely filed petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. & Normac International v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, I.R.C. section 6213(a) provides that the petition must be filed with the Court within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). If a petition is timely mailed, 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 be properly addressed to the Tax Court in Washington, D.C., and bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). The Court has no authority to extend this 90 day (or 150 day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
Similarly, this Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330. I.R.C. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492, 498 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer have requested a hearing before the IRS Office of Appeals within the 30-day period specified in section 6320(a) or 6330(a), and calculated with reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 or Final Notice of Intent To Levy and Notice of Your Right to a Hearing.
On June 21, 2023, petitioners filed a Response to Motion to Dismiss for Lack of Jurisdiction, in which they merely state that the Court has jurisdiction.
Petitioners have not provided a copy of a notice of determination that would confer jurisdiction on this Court. Because no notice of determination sufficient to confer jurisdiction on this Court has been sent to petitioners, this case must be dismissed for lack of jurisdiction as to the notice of determination concerning collection action for tax year 2020.
While the Court is sympathetic to petitioners' situation, governing law recognizes no exceptions for good cause or similar grounds that would allow them to proceed in this judicial forum as to the notice of deficiency for tax year 2020. Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256 (1972). Accordingly, since the petition was not filed within the required 90 day period, this case must be dismissed for lack of jurisdiction.
The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. In addition, if financially feasible, petitioners may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.