Opinion
23745-21S
03-28-2023
LICET LLANOS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy Special Trial Judge
This case is calendared for trial at the Court's April 11, 2023, Tampa, Florida, trial session.
Petitioner Licet Llanos electronically filed her petition commencing this case on September 22, 2021, contesting a notice of deficiency (notice) allegedly issued on April 19, 2021, for her 2019 tax year. Ms. Llanos did not attach a copy of the notice to the petition. In the Answer filed December 2, 2021, the Commissioner admitted the notice was issued on April 19, 2021. The Commissioner also stated that he was unable to obtain a copy of the notice after a diligent search of his records but would continue the search to obtain a copy of the notice.
On August 5, 2022, the parties filed a settlement stipulation and proposed stipulated decision to resolve the case. Noticing that the parties did not file a complete copy of the notice upon which this case is based, the Court issued an Order on August 18, 2022, seeking a complete copy of the notice for 2019. On August 19, 2022, the Commissioner filed a response to the Court's Order attaching thereto a purported copy of the notice for 2019, dated November 23, 2020, not April 19, 2021. This notice stated that the last date to petition this Court was February 10, 2021, 79 days after the issue date stated on the notice. Furthermore, the United States Postal Service (USPS) certified mail tracking number listed on the notice indicates that the notice has not been mailed.
On December 22, 2022, the Court issued an Order to Show Cause ordering the Commissioner to file a status report and attach thereto a copy of a USPS Form 3877 or other proof of mailing, and for the parties to show cause in writing why the Court should not dismiss the case for lack of jurisdiction on the ground the petition was not timely filed. On January 21, 2023, the Commissioner filed a response to the Order stating that he could not locate a copy of USPS Form 3877 to prove proper mailing. On February 23, 2023, the Commissioner filed a first supplement to his response stating that he is unable to locate the administrative file for this case, and he possesses no evidence to show that a notice, as authorized by section 6212(a) and as required by section 6213 of the Internal Revenue Code (I.R.C.), was properly mailed to Ms. Llanos. Ms. Llanos did not file a response to the Order to Show Cause.
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 this Court depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a), (c), Tax Court Rules of Practice and Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). For a notice of deficiency to be valid, it must be mailed to a petitioner's last known address by certified or registered mail. See § 6212(a); see also Yusko v. Commissioner, 89 T.C. 806, 810 (1987). Further, a 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). See § 6213(a); Brown v. Commissioner, 78 T.C. at 220.
The Commissioner has the burden of establishing both the existence of a notice of deficiency as well as the date of mailing. Pietanza v. Commissioner, 92 T.C. 729 (1989), aff'd without published opinion, 935 F.2d 1282 (3d Cir. 1991); Galluzzo v. Commissioner, T.C. Memo. 2013-136. In this case, the Commissioner (1) cannot locate Ms. Llanos' administrative file; (2) is unable to produce a USPS Form 3877; and (3) is unable to confirm that a notice was sent to Ms. Llanos for 2019. In his supplemental response, the Commissioner admits that he is unable to prove that a notice was issued to Ms. Llanos for tax year 2019 and therefore no valid notice was issued. As a result, we lack jurisdiction to redetermine a deficiency in this case.
Accordingly, upon due consideration of the foregoing, it is
ORDERED that the Court's Order to Show Cause, issued December 22, 2022, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the ground that no valid notice of deficiency was issued to Ms. Llanos for tax year 2019.