Opinion
2839-23
04-24-2024
RYAN MACAULAY & ANDREA MACAULAY, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed April 12, 2023. As grounds for his motion, respondent asserts that the Petition was not filed within the time prescribed in the Internal Revenue Code (I.R.C.). On May 5, 2023, petitioners filed a Response to Motion to Dismiss for Lack of Jurisdiction, objecting to the granting of respondent's motion. On May 22, 2023, respondent filed a Reply to Response to Motion to Dismiss for Lack of Jurisdiction and, thereafter, on June 22, 2023, petitioners filed a Sur-Reply to Reply to Response to Motion to Dismiss for Lack of Jurisdiction.
Like all federal courts, the Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. §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.
In a case seeking redetermination of a deficiency, our jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§6212 and 6213; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022) (collecting cases). In order to be timely, a petition must be filed within 90 days, or 150 days if addressed to a person outside the United States, of the date of mailing of the notice of deficiency, as prescribed by I.R.C. section 6213(a). Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980).
The notice of deficiency is sufficient if mailed to the taxpayer's last known address. See I.R.C. §6212(b). Absent clear and concise notification to the Internal Revenue Service (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. See §301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff 'g 88 T.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, 89 T.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). Where the existence of the notice of deficiency is not disputed, a properly completed Postal Service Form 3877 (certified mail list) by itself is sufficient, absent evidence to the contrary, to establish that the notice was properly mailed to a taxpayer. Coleman v. Commissioner, 94 T.C. 82, 91 (1990).
Here, the record reflects that duplicate notices of deficiency for petitioners' 2020 tax year were sent by certified mail to petitioners' last known address, the same address used by petitioners in filing their Petition, on December 5, 2022. Respondent has provided a copy of the relevant page of the certified mail list which bears a postmark date of December 5, 2022. Respondent also has provided a copy of the certified mail tracking information from the United States Postal Service's website showing that mail with the tracking numbers associated with the notices of deficiency mailed to petitioners was in the possession of the USPS on December 5, 2022. Based on the mailing date of December 5, 2022, the 90-day period in which to file a Tax Court petition expired on March 6, 2023. Petitioners electronically filed their Petition on March 7, 2023, at 8:56 p.m. Eastern Time--one day late.
In opposition to the motion to dismiss, petitioners advance a number of arguments as to why the motion should be denied. Petitioners assert that a Google search using the USPS tracking numbers associated with one of the duplicate notices of deficiency shows that, on December 5, 2022, only a tracking number had been created with the USPS. Petitioners state this suggests that the notices of deficiency were mailed on a date later than December 5, 2022. We are satisfied, however, that the certified mail list and the tracking information from the USPS website establish that the notices of deficiency on which this case is based were mailed to petitioners on December 5, 2022.
Petitioners also argue that the time for filing should be extended because they did not receive a copy of the notice of deficiency until January 19, 2023. As discussed above, however, when proper mailing is demonstrated the statute does not require respondent to prove delivery or actual receipt of the notice of deficiency. Furthermore, it appears petitioners actually received the notice of deficiency with sufficient time to timely file their Petition.
Petitioners additionally assert that a Notice CP 22A ("Changes to your 2020 Form 1040") relating to their 2020 tax year that was issued to them in April 2023 demonstrates that the timely filing period did not expire on March 6, 2023, and they actually had more time within which to file their Petition. Petitioners cite no authority for this assertion, however, and we know of none that supports their position.
Petitioners further contend that the 90-day timely filing period should be determined by counting only business days, rather than calendar days. However, in McGuire v. Commissioner, 52 T.C. 468, 469 (1969), this Court held that the time periods set forth in I.R.C. section 6213(a) are properly determined by counting calendar days, except where the last day of the period falls on a Saturday, Sunday, or holiday in the District of Columbia in which case the last day is moved to the next business day.
Finally, petitioners urge us to apply the doctrine of equitable tolling to extend the filing period, citing the decision of the Supreme Court in Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022). Boechler was a collection due process case involving our jurisdiction under I.R.C. section 6330(d)(1). This is a deficiency case, and our jurisdiction in such cases is governed by I.R.C. 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 I.R.C. section 6213(a)). Although the U.S. Court of Appeals for the Third Circuit has reached a different conclusion in Culp v. Commissioner, 75 F.4th 196, 205 (3d Cir. 2023) (holding that the deficiency deadline under section 6213(a) is nonjurisdictional), absent a stipulation to the contrary, this case is appealable to the U.S. Court of Appeals for the Fourth Circuit, see I.R.C. §7482(b)(1). In Sanders v. Commissioner, 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.
The record in this case establishes that the Petition was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 166-167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners may not prosecute this case in this Court, petitioners may still pursue an administrative resolution of their 2020 tax liability directly with the Internal Revenue Service. Also, another remedy available to petitioners, if financially feasible, is to pay the determined amounts, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), 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 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.