Opinion
19502-22
06-07-2023
LYNDA LEGRAND, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On October 4, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed. 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 petitioner by certified mail on May 9, 2022.
The petition was filed with the Court on August 24, 2022, which date is 107 days after the date the notice of deficiency for tax year 2020 was mailed to petitioner. The petition was received by the Court in an envelope bearing a United States Postal Service postmark of August 22, 2022, which date is 105 days after the date the notice of deficiency for tax year 2020 was mailed to petitioner. Attached to the petition is a copy of the deficiency notice issued for 2020, which states that the last day for filing a timely Tax Court petition as to that notice would expire on August 8, 2022.
This Court is a court of limited jurisdiction. This Court's jurisdiction to redetermine a deficiency depends on the issuance of a valid notice of deficiency and a timely filed petition by the taxpayer. Rule 13(a) and (c); 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).
In the present case, the time for filing a petition with the Court expired on August 8, 2022. However, the petition was not filed within that 90 day period.
On April 27, 2023, petitioner filed a Letter dated April 25, 2023. In it, petitioner asserts she filed an extension to file his petition with respondent and pleads the merits of her case. A taxpayer cannot rely on erroneous or misleading advice he may have been given by the IRS to confer jurisdiction on this Court. See Estate of Kunze v. Commissioner, 233 F.3d 948 (7th Cir. 2000), aff'g T.C. Memo. 1999-344.
The record reflects that the petition in this case was not timely filed. While the Court is sympathetic to petitioner's situation, the Court has no authority to extend the period for filing a timely petition. Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, we are obliged to dismiss this case 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. Also, petitioner 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 the Federal district court or 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.