Opinion
14079-21S
12-16-2021
Vincent Lowell Klein Petitioner v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
On April 26, 2021, petitioner filed the petition to commence this case, seeking review of a notice of deficiency issued to him for his 2018 tax year. On October 20, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction on the ground that the petition was not filed within the time prescribed by the Internal Revenue Code. On December 9, 2021, petitioner filed an Objection To Motion To Dismiss for Lack of Jurisdiction.
The Tax 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; 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 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). 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 in this case reflects that a notice of deficiency for tax year 2018 was sent to petitioner's last known address by certified mail on November 23, 2020. Based on that mailing date, the last day to timely file a petition with the Court was February 2, 2021. The Court received and filed the petition on April 26, 2021. The petition was received in an envelope bearing a postmark date of April 21, 2021. Both the filing and mailing dates are after the last day petitioner could timely file a petition with respect to the notice of deficiency issued to him.
In petitioner's objection to the motion to dismiss, petitioner contends that he was confused by the language in the notice of deficiency concerning the deadline for timely filing a Tax Court petition and believed that his petition was timely based on his understanding of the notice's language. While the Court is sympathetic to petitioner's circumstances and understands that his failure to timely file his petition was due to inadvertence, we have no authority to extend the period for timely filing the 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).
The record establishes that the petition was not timely filed and, thus, the Court lacks jurisdiction of this case. However, although petitioner may not prosecute this case in the Tax Court, petitioner may continue to pursue administrative resolution of the 2018 tax liability directly with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amounts, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioner may file 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, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.