Opinion
11702-20S
01-05-2022
Thomas Hatten McDaniel Petitioner v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
On November 16, 2020, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed. Respondent attached to the motion a copy of the Certified Mail List as evidence of the fact that the notice of deficiency, dated December 30, 2019, was sent to petitioner by certified mail on December 26, 2019.
The petition was filed with the Court on September 15, 2020, which date is 260 days after the date on the notice of deficiency for tax year 2018. The petition was received by the Court in an envelope with a return address of the Internal Revenue Service in Andover, Maryland, indicating that the petition was first mailed to the Internal Revenue Service before it was received by the Tax Court.
This Court is a court of limited jurisdiction. This Court's jurisdiction to redetermine a deficiency depends on the issuance of a valid notice of deficiency and a timely filed petition by the taxpayer. Rule 13(a) and (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. & Normac International v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, 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 the 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, 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 be properly addressed to the Tax Court in Washington, D.C., and 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). The Court has no authority to extend this 90 day (or 150 day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with the Court expired on March 30, 2020. However, the petition was not filed within that 90 day period.
On April 16, 2021, petitioner filed an Objection to respondent's motion to dismiss. In it, petitioner asserts that petitioner timely mailed the petition to the IRS address from which he received the notice of deficiency. Respondent attached a copy of the notice of deficiency to his Motion to Dismiss for Lack of Jurisdiction. The first page of the notice of deficiency provides the address to mail the petition to the Tax Court and states that the last day to petition the Tax Court is March 30, 2020.
The record reflects that the petition in this case was not timely filed. While the Court is sympathetic to petitioner's situation, the Court has no authority to extend the period for filing a timely petition. Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, we are obliged to dismiss this case for lack of jurisdiction.
The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. Also, if feasible, petitioner may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in the Federal district court or U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.