Opinion
13299-22S
03-15-2023
JAMES MIZE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On May 31, 2022, the Court received from petitioner a letter, which was filed as an imperfect petition to commence this case. On August 17, 2022, petitioner filed an amended petition, therein indicating that he seeks review of a notice of determination concerning collection action with respect to his 2019 tax year.
On October 12, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction. Thereafter, on January 23, 2023, respondent filed a First Supplemental Motion to Dismiss for Lack of Jurisdiction. In respondent's motion, as supplemented, respondent asserts that (1) as to a notice of deficiency issued for petitioner's 2019 tax year, this case should be dismissed because the petition was not filed within the time prescribed in the Internal Revenue Code, and (2) as to a notice of determination concerning collection action for petitioner's 2019 tax year, respondent has issued no such notice of determination. On February 10, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
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).
Similarly, in a case seeking review of certain IRS collection activity, the Court's jurisdiction depends on the issuance of a valid notice of determination (after petitioner has properly requested and received a collection due process hearing) under Internal Revenue Code (I.R.C.) section 6320 or 6330 and the filing by the taxpayer of a petition concerning that IRS determination. Smith v. Commissioner, 124 T.C. 36, 38 (2005); I.R.C. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure.
The record in this case reflects that a notice of deficiency for petitioner's 2019 tax year was sent by certified mail to petitioner's last known address on September 13, 2021. Based on that mailing date, the last day to timely file a petition with the Court was December 13, 2021. Additionally, the notice of deficiency stated that the last day to file a Tax Court petition was December 13, 2023. As discussed above, the petition to commence this case was received and filed on May 31, 2022. The petition was received in an envelope bearing a postmark dated May 24, 2022. Both the filing and mailing dates are more than 90 days after the notice of deficiency for 2019 was mailed to petitioner. Nothing in the record indicates that respondent issued a notice of determination concerning collection action to petitioner for his 2019 tax year.
In his objection to the motion to dismiss, petitioner provides details about the serious health issues he suffers from and his frustration in trying to resolve this matter directly with the IRS. The record establishes, however, that the petition was not timely filed as to the notice of deficiency for 2019 issued to petitioner. While the Court is sympathetic to petitioners' situation, 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). Nor has petitioner produced or otherwise demonstrated that he was issued any notice of determination concerning collection action for his 2019 tax year. The Court, therefore, is obliged to dismiss this case for lack of jurisdiction.
Although petitioner may not prosecute a case in this Court, petitioner may continue to pursue administrative resolution of his 2019 tax liability directly with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amounts, 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). Petitioner also may wish to contact the IRS Taxpayer Advocate Service (TAS) for assistance. Information about the TAS may be found at www.irs.gov/taxpayer-advocate.
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.