Opinion
23114-22S
04-25-2023
GAKOU MAMOUROU, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
Pending before the Court in this deficiency case is respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 16, 2022. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. By Order served January 4, 2023, the Court directed petitioner to file an objection, if any, to respondent's Motion. On January 23, 2023, petitioner filed a Reply, requesting that the Court deny the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated July 1, 2022, respondent determined a deficiency in petitioner's Federal income tax for the taxable year 2020. The Petition in this case seeks review of that Notice.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). 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.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213(a); Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6 n.4 (collecting cases). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Research Collective, slip op. at 42; see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1.
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of the mailing of the notice. See § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). The Notice of Deficiency in this case is addressed to petitioner at an address within the United States, and there is no indication in the record that petitioner was outside the United States at or about the time when the Notice was mailed.
In the Motion to Dismiss, respondent asserts that the Notice of Deficiency in this case was sent by certified mail on July 1, 2022, to petitioner's last known address. A PS Form 3877 attached to the Motion to Dismiss establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on July 1, 2022, to the address in New York, New York listed in the Notice. That address is the same address that petitioner listed in the Petition, and petitioner has not disputed that the address listed in the Notice was his last known address. Tracking information on the U.S. Postal Service (USPS) website corresponding to the certified mail number listed on the copy of the Notice of Deficiency attached to the Petition indicates that the Notice was delivered to an individual at the address listed therein at 2:41 p.m. on July 11, 2022. In view of the foregoing, we take it as established for purposes of the Motion to Dismiss that the Notice was properly mailed to petitioner's last known address.
A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The PS Form 3877 attached to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
We note that the certified mail number listed on the copy of the Notice of Deficiency attached to the Petition matches the certified mail number listed on the PS Form 3877.
We take judicial notice of the above-referenced USPS tracking information appearing on the USPS website. See Fed. R. Evid. 201; Jordan v. Commissioner, T.C. Memo. 2019-15, 2019 WL 1036083 at *1 n.2 (taking judicial notice of certain material appearing on the USPS website).
Because the Notice of Deficiency was mailed to petitioner's last known address on July 1, 2022, the last date to file a petition with this Court as to that Notice was September 29, 2022, as stated in the Notice. The Petition in this case was received and filed by the Court on October 21, 2022. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see § 7502, the envelope in which the Petition in this case was mailed to the Court is not postmarked. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
In his Reply, petitioner contends that he did not receive the Notice of Deficiency until October 12, 2022, that is, after the expiration of time for filing a petition for redetermination with this Court. Petitioner appears to contend that the Notice of Deficiency was left in the lobby of his apartment building, insofar as he states "[t]hat a week after receiving the so called letter found in the lobby, he filed his appeal." As noted supra p. 2, the tracking information on the USPS website indicates that the Notice of Deficiency was delivered to an individual on July 11, 2022. But even if petitioner's contentions were supported by the record, it is well settled that "[a]ctual receipt of the notice [of deficiency] is unnecessary; if it is mailed to the taxpayer's last known address it is adequate for the purposes of the statute." Tadros v. Commissioner, 763 F.2d 89, 91 (2d Cir. 1985); see also Zolla, 724 F.2d at 810; Yusko, 89 T.C. at 810.
We are sympathetic to petitioner's circumstances. But Congress has limited our deficiency jurisdiction to only those cases in which a petition is timely filed, and we do not have authority to extend the 90-day period set forth in section 6213(a) by equitable tolling. Hallmark Research Collective, slip op. at 42; see also Axe v. Commissioner, 58 T.C. 256, 259 (1972) ("We have no authority to extend the period provided by law for filing a petition with the Tax Court whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period."). Nevertheless, while petitioner cannot pursue his case in this Court, he may continue to pursue administrative resolution of the 2020 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
In consideration of the foregoing, it is
ORDERED that respondent's above-referenced Motion is granted, and this case is dismissed for lack of jurisdiction.