Opinion
9341-22S
03-28-2023
ALEXANDER MACDOWELL & KRISTIN MACDOWELL, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction (motion to dismiss), filed February 1, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On June 10, 2016, petitioners filed a Response to Motion to Dismiss for Lack of Jurisdiction, as well as an Affidavit of Alexander MacDowell in Support of Response to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that a notice of deficiency, dated August 16, 2021, for petitioners' 2018 tax year was sent by certified mail to petitioners' last-known address on August 12, 2021. The petition in this case was received by the Court and filed on April 18, 2022, which is 245 days after the date of the notice of deficiency. The petition was contained in an envelope bearing a postmark date of April 7, 2022, which is 234 days after the date of the notice of deficiency.
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 Research 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 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).
Here, the record establishes that the petition in this case was not timely filed. Based on the date of the notice of deficiency, the 90-day period to timely file (or timely mail) a Tax Court petition expired after November 15, 2021. As discussed above, the petition was mailed on April 7, 2022, and the Court received and filed the petition on April 18, 2022.
In petitioners' Response to the motion to dismiss, petitioners assert that they timely mailed a petition in September 2021, along with a check for the Court's filing fee. The Court, however, has no record of receiving any petition from petitioners in 2021. Petitioners state their check for the filing fee has never been cashed, and they have never received that petition by returned mail. Petitioners therefore believe the timely petition was lost by the U.S. Postal Service. Petitioners assert they only learned the timely petition had not been received by the Court when they were sent an IRS collection notice in January 2022, and they then filed this case in April 2022.
While the Court is sympathetic to petitioners' situation and understands the unintentional and frustrating character of difficulties regarding mailing, we have no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners may not prosecute a case in this Court, petitioners may continue to pursue administrative resolution of the 2018 tax liability directly with the IRS. Also, another remedy potentially available to petitioners, if feasible, is to pay the amounts determined in the 2018 notice of deficiency, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring 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.