Opinion
14728-21S
05-01-2023
ROBERT C. MCIVER & JANNAY N. BROWN, Petitioners 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 September 13, 2021. 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 November 12, 2021, the Court directed petitioners to file an objection, if any, to the Motion. On December 1, 2021, petitioners filed such an Objection. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated January 4, 2021, respondent determined a deficiency and accuracy-related penalty in petitioners' Federal income tax for the 2018 taxable year. 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; 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 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 in this case was sent by certified mail on January 4, 2021, to petitioners' last known address. A PS Form 3877 attached thereto establishes that respondent sent the Notice of Deficiency to petitioners by certified mail on January 4, 2021, to the address in Glen Burnie, Maryland listed in the Notice. That address is the same address that petitioners listed in the Petition, and they have not disputed that the Notice was mailed to their last known address. 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 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.
Because the Notice of Deficiency was mailed to petitioners' last known address on January 4, 2021, the last date to file a petition with this Court as to that Notice was April 5, 2021, as stated in the Notice. The Petition in this case was received by the Court and filed on April 29, 2021. 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.
The 90th day after the date of mailing was Sunday, April 4, 2021; however, section 6213(a) provides that Sunday is not counted as the last day of the 90-day period.
We note that, although the envelope is not postmarked, the Petition itself is signed and dated April 19, 2021.
To obtain the benefits of section 7502, a taxpayer has the burden of proof to establish timely mailing. See Treas. Reg. § 301.7502-1(c)(1)(iii)(A); see also Isabel v. Commissioner, T.C. Memo. 1980-181. Petitioners have not carried that burden here.
In their Objection, petitioners state that, during the 90-day period after the mailing of the Notice of Deficiency, their "family experienced undue hardships, job loss and made minor mistakes in good faith, thus surpassing the 90-day period to file a petition." Petitioners add that they "have experienced several hardships during the Pandemic."
The COVID-19 pandemic did lead to the extension of certain tax-related filing deadlines, including the deadline for filing a petition with the Tax Court; however, the circumstances of this case fall outside the relief afforded. Specifically, the Court's decision in Guralnik v. Commissioner, 146 T.C. 320 (2016), together with IRS Notice 2020-23, 2020-18 I.R.B. 742 (Apr. 27, 2020), extended to July 15, 2020, the deadline for filing petitions with due dates between March 19, 2020, and July 15, 2020. But, as noted, the due date for filing a petition with the Court in this case was April 5, 2021. Thus, the foregoing authority had no effect on the due date, and the Petition was untimely, even after accounting for the extensions granted due to the COVID-19 pandemic.
We are sympathetic to petitioners' circumstances. But Congress has limited our deficiency jurisdiction to only those cases in which a petition is timely filed, and we have no authority to extend the 90-day period set forth in section 6213(a). Hallmark Research Collective, slip op. at 42; Axe v. Commissioner, 58 T.C. 256, 259 (1972). Nevertheless, while petitioners cannot pursue their case in this Court, they may continue to pursue administrative resolution of the 2018 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioners, 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), 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).
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.