Opinion
15851-23S
07-08-2024
DAMIEN MANN & BRENDA DELGADO ROMAN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 1, 2023. By the Motion, respondent moves that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the period prescribed by the Internal Revenue Code. Petitioners oppose the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Like all federal courts, this Court is a court of limited jurisdiction, and we may exercise jurisdiction only to the extent expressly provided by statute. See § 7442; Ramey v. Commissioner, 156 T.C. 1, 11 (2021). 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.
In deficiency cases, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213; Tilden v. Commissioner, 846 F.3d 882, 886-87 (7th Cir. 2017), rev'g and remanding T.C. Memo. 2015-188; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 & n.4 (2022) (collecting cases); see also Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit). Generally, a notice of deficiency will be deemed valid for this purpose if it is sent 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).
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 petitioners at an address within the United States, and there is no indication in the record that petitioners were 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 upon which this case is based was sent by certified mail on February 4, 2022, to petitioners' last known address. A PS Form 3877 attached to the Motion to Dismiss establishesthat respondent sent the notice of deficiency to petitioners by certified mail on February 4, 2022, to the address in Chicago, Illinois, listed in the notice. That address is the same address that petitioners listed in the Petition and their other filings in this case, and petitioners do not dispute that this address was their last known address at the time the notice was mailed. We thus take it as established for purposes of the Motion to Dismiss that the notice was so mailed.
A properly completed PS Form 3877 (or certified mail 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, 187-91 (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 as Exhibit B 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 that document as presumptive proof of its contents.
As discussed below, petitioners do, however, appear to assert, without any apparent evidentiary support, that the notice was mailed to an address other than the address shown in the notice and the PS Form 3877.
Notwithstanding the fact that the notice of deficiency was mailed to petitioners' last known address on February 4, 2022, the notice bears a date of February 7, 2022. Therefore, the last date to file a timely petition as to that notice was May 9, 2022, as stated in the notice. The Petition in this case was received and filed by the Court on October 6, 2023. 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 Petition in this case was delivered to the Court in an envelope bearing a postmark of October 3, 2023. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code.
Where a notice of deficiency bears a date later than its actual date of mailing, it is treated as having been mailed on the later date for purposes of the 90-day period for filing a petition with the Court. See Loyd v. Commissioner, T.C. Memo. 1984-172; Jones v. Commissioner, T.C. Memo. 1984-171. Accordingly, we use the date of February 7, 2022, to determine whether the Petition in this case was timely filed. The 90th day after the deemed date of mailing was Sunday, May 8, 2022; however, section 6213(a) provides that Saturdays, Sundays, and legal holidays in the District of Columbia are not counted as the last day of the 90-day period. Hence, the last date to file a timely petition as to the notice of deficiency in this case was May 9, 2022.
In an Objection to Motion to Dismiss for Lack of Jurisdiction filed on January 2, 2024, petitioners assert that they never received the notice of deficiency. However, a notice of deficiency is valid, even if it is not received by the taxpayer, where it is mailed to the taxpayer's last known address. See Mollet v. Commissioner, 82 T.C. 618, 623-24 (1984). As noted above, the documentary materials attached to respondent's Motion to Dismiss establish that the notice was sent by certified mail on February 4, 2022, to petitioners' last known address. Therefore, even assuming that petitioners never received the notice of deficiency in this case, that notice is valid in view of having been so mailed. Petitioners also appear to assert, without any apparent evidentiary support, that the notice was mailed to an address other than the address shown in the notice and the PS Form 3877, but this bald assertion requires us to ignore all the documentary materials in the record indicating otherwise and is insufficient to overcome the presumption of proper mailing established by those materials.
These materials include the copy of the notice of deficiency that petitioners attached to the Petition, which bears the same certified mail number listed in the PS Form 3877 attached to respondent's Motion to Dismiss and the same address that petitioners listed in the Petition and their other filings in this case.
While we are sympathetic to petitioners' circumstances, Congress has limited our jurisdiction in the deficiency context to those cases in which a petition is timely filed, and we have no authority to extend the deadline in section 6213(a). See Hallmark Rsch. Collective, 159 T.C. at 166-67; see also Axe v. Commissioner, 58 T.C. 256, 259 (1972). Nevertheless, we note that the dismissal of this case does not preclude petitioners from pursuing administrative resolution of the 2020 tax liability directly with the Internal Revenue Service (IRS). Another remedy potentially available to petitioners, if feasible, is to pay the determined amounts and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioners 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).
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 because the Petition was not filed within the period prescribed by section 6213(a).