Opinion
27412-22
05-31-2024
ROBERT G. KILGORE, DECEASED, & SHARLEEN E. KILGORE, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
In a notice of deficiency dated September 6, 2022, respondent determined deficiencies in petitioners' federal income tax of $244,965 and a substantial tax understatement penalty of $48,993 for tax year 2020. On December 15, 2022, Petitioner Robert G. Kilgore's power of attorney filed the Petition in this case, seeking redetermination of the deficiency for tax year 2020. The Petition was received by the Court in an envelope bearing a United States Postal Service (USPS) postmark dated December 7, 2022. On June 23, 2023, Petitioner Robert G. Kilgore ratified the Petition.
Pending before the Court is the Court's Order to Show Cause, served February 9, 2024, directing the parties to show cause why this case should not be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. On March 3, 2024, petitioners filed a Response, in which they ask the Court to not dismiss this case. On March 4, 2024, respondent filed a Response, in which he states that the Court lacks jurisdiction in this matter. For the reasons that follow, we must dismiss this case for lack of jurisdiction.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). 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, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and 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 §§ 6212 and 6213; Foster v. Commissioner, 445 F.2d 799, 800 (10th Cir. 1971); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022) (collecting cases); see also Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the Third Circuit). 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 § 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 § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Foster v. Commissioner, 445 F.2d at 800; Hallmark Rsch. Collective, 159 T.C. at 166-67.
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 § 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 petitioners at an address within the United States, and there is no indication in the record that petitioners were outside the United States at or about the time when the notice was mailed.
If a petition is timely mailed, as indicated by the postmark on the envelope containing the petition, and properly addressed to the United States Tax Court in Washington, D.C., it is treated as being timely filed. § 7502(a); Treas. Reg. § 301.7502-1.
In his Response, respondent asserts that the notice of deficiency in this case was sent by certified mail on September 6, 2022, to petitioners' last known address. A PS Form 3877 attached to the Response establishes that respondent sent the notice of deficiency to petitioners by certified mail on September 6, 2022, to the address in Castle Rock, Colorado, listed in the notice. Moreover, petitioners have not disputed that the notice was mailed to their last known address. We thus take it as established for purposes of the Order to Show Cause that the notice was so mailed.
A properly completed PS Form 3877 (or 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, 187-91 (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 PS Form 3877 attached as Exhibit A to respondent's Response appears to be properly completed and bears sufficient indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
Given that the notice of deficiency was mailed to petitioners' last known address on September 6, 2022, the last date to file a petition with this Court as to that notice was December 5, 2022, as stated therein. The Petition was received by the Court on December 15, 2022, in an envelope bearing a USPS postmark dated December 7, 2022. 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.
In their Response petitioners argue that the Court should apply the doctrine of equitable tolling in this case, citing the decision of the Supreme Court in Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), and that of the U.S. Court of Appeals for the Third Circuit in Culp v. Commissioner, 75 F.4th 196, 205 (3d Cir. 2023).
The record indicates that petitioner Sharleen E. Kilgore died before the Petition was filed and that petitioner Robert G. Kilgore died after the Petition was filed. Petitioners' counsel states in petitioners' Response that he was hired by their power of attorney. We assume, without deciding, that petitioners' counsel has the capacity to advance these jurisdictional arguments on behalf of petitioners.
Petitioners' reliance on Boechler is misplaced. Boechler was a collection due process case involving our jurisdiction under section 6330(d)(1). Conversely, this is a deficiency case, and our jurisdiction in such cases is governed by section 6213(a). See Hallmark Rsch. Collective, 159 T.C. at 165-66 (concluding that the Supreme Court's reasoning in Boechler does not apply to the 90-day period of section 6213(a)). Although the Third Circuit reached a different conclusion in Culp, 75 F.4th at 205 (holding that the deficiency deadline under section 6213(a) is nonjurisdictional), this case is presumably appealable to the U.S. Court of Appeals for the Tenth Circuit, see § 7482(b)(1). The Tenth Circuit has held that the deficiency deadline is jurisdictional. See Foster v. Commissioner, 445 F.2d at 800. Also, in Sanders, 161 T.C., slip op. at 7- 8, this Court thoroughly examined the Culp decision and held that we will continue treating the deficiency deadline as jurisdictional in cases appealable outside the Third Circuit. Accordingly, petitioners are not entitled to equitable tolling in the instant case.
Congress has limited our jurisdiction in the deficiency context to those cases in which a petition is timely filed, and we have no authority to extend by equitable tolling the 90-day period set forth in § 6213(a). See Foster v. Commissioner, 445 F.2d at 800; Sanders, 161 T.C., slip op. at 7-8; Hallmark Rsch. Collective, 159 T.C. at 166- 67; 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."). Although petitioners cannot pursue their case in this Court, they may continue to pursue administrative resolution of the 2020 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioners, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If the claim is denied (or not acted upon after six months), petitioners 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 and for cause, it is
ORDERED that the Court's Order to Show Cause, served February 9, 2024, is made absolute. It is further
ORDERED that on the Court's own motion, this case is dismissed for lack of jurisdiction because the Petition was not filed within the period prescribed by I.R.C. section 6213(a).