Opinion
5189-23S
07-05-2023
RUBEN LOZOYA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
Petitioner filed the petition in this case in order to challenge a notice of deficiency issued for his 2021 tax year. Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction (motion to dismiss), filed May 12, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On June 29, 2023, petitioner filed a Notice of Objection to Motion to Dismiss for Lack of Jurisdiction (objection).
The record reflects that a notice of deficiency, dated December 12, 2022, for petitioner's 2021 tax year was sent by certified mail to petitioner's last known address on December 8, 2022. The notice of deficiency stated that the last day to file a petition with the Tax Court was March 13, 2023. The Court received and filed the petition on March 16, 2023. Petitioner's signature on the petition was dated March 14, 2023, and the envelope containing the petition was postmarked March 14, 2023.
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 Rsch. 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 person 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). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. 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).
Based on the date of the notice of deficiency on which this case is based, the 90-day period to timely file a Tax Court petition expired on March 13, 2023. The Court received and filed the petition on March 16, 2023. The postmark on the envelope containing the petition was dated March 14, 2023, one day after the 90-day timely filing period expired.
In his objection to respondent's motion to dismiss, petitioner explains that, after receiving the notice of deficiency, he sought assistance from a nationally known tax preparation firm. That firm's review of his tax situation was not done in a timely manner, however, and the petition was late as a result. While we sympathize with petitioner's circumstances, the Court has no authority to vary the jurisdictional requirements imposed in section 6213(a) even if the outcome seems unfair. See Organic Cannabis Found., LLC v. Commissioner, 962 F.3d1082, 1093-1094 (9th Cir. 2020).
Here, the record establishes that the petition was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); 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 still pursue an administrative resolution of his 2021 tax liability directly with the IRS.
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.