Opinion
13205-22
04-07-2023
RHAZI KHODADAD, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
On June 13, 2022, petitioner electronically filed the petition to commence this case, in which petitioner seeks review of a notice of deficiency issued for petitioner's 2018 tax year. On August 24, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On September 18, 2022, respondent filed a Motion for Entry of Order that Undenied Allegations Be Deemed Admitted Pursuant to Rule 37(c). On January 19, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that a notice of deficiency, dated February 16, 2022, issued with respect to petitioner's 2018 tax year was sent by certified mail from Ogden, Utah to petitioner's last known address. The certified mail tracking number that appears on that notice of deficiency is 7009 2250 0001 2337 1251. The certified mailing list which includes petitioner's notice, is dated February 16, 2023, but does not bear a U.S. Postal Service (USPS) postmark. However, a printout from the USPS website for the tracking number appearing on petitioner's notice of deficiency indicates that the notice arrived at the USPS regional facility in Salt Lake City, Utah on February 17, 2022, at 12:23 a.m. It is, therefore, reasonable to infer that respondent placed the notice of deficiency in the mail on February 16, 2022. The petition, filed on June 13, 2022, was filed117 days after the notice of deficiency was mailed to petitioner.
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 addition, jurisdiction must be proven affirmatively, and a taxpayer invoking our jurisdiction bears the burden of proving that we have jurisdiction over the taxpayer's case. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
In a case seeking redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice of Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (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 taxpayer outside the United States, after a valid 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 and properly addressed to the Tax Court in Washington, D.C., 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 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). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff 'g 88T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89T.C. 806, 808 (1987). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
The record establishes that the petition in this case was not timely filed. Based on the date of mailing of the notice of deficiency for petitioner's 2018 tax year, the last date petitioner could timely file (or timely mail) a Tax Court petition was May 17, 2022. As previously noted, petitioner electronically filed the petition on June 13, 2022.
In petitioner's objection to the motion to dismiss, petitioner asserts that petitioner's counsel was not provided a copy of the notice of deficiency by the IRS and that an IRS agent represented to counsel that petitioner's notice of deficiency required the filing of a Tax Court petition on or before June 13, 2022. To the extent that petitioner may be claiming, under the doctrine of equitable estoppel, that the Court should exercise jurisdiction in this case because erroneous advice from an IRS employee led to the petition's untimely filing, it is well settled that where the Commissioner's representatives provide erroneous advice based upon a mistaken interpretation of the law, courts and the Commissioner are not bound by the agent's statements and must follow the applicable statutes, regulations, and caselaw. See, e.g., Dixon v. United States, 381 U.S. 68, 72-73 (1965); Auto. Club of Mich. v. Commissioner, 353 U.S. 180, 183 (1957); Neri v. Commissioner, 54 T.C. 767, 771-772 (1970). Moreover, it has long been the rule that equitable estoppel is unavailable in these circumstances. As this Court has stated, an "estoppel argument must fail for the simple reason that the doctrine of estoppel cannot create jurisdiction where none otherwise exists." Energy Res., Ltd. v, Commissioner, 91 T.C. 913, 917 (1988).
While the Court is sympathetic to petitioner's situation and understands the unintentional character of the inadvertence here, we have no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioner may not prosecute this case in this Court, petitioner may continue to pursue an administrative resolution of the 2018 tax liability directly with the IRS. Also, another remedy available to petitioner, if feasible, is to pay the determined amounts, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring a suit for refund in the appropriate Federal 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 respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction. It is further
ORDERED that respondent's Motion for Entry of Order that Undenied Allegations Be Deemed Admitted Pursuant to Rule 37(c) is denied as moot.