Opinion
3441-24
09-24-2024
LATU VASI MOLISI, Petitioner 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 April 12, 2024. 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. Petitioner opposes 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. Ramey v. Commissioner, 156 T.C. 1, 11 (2021). We may exercise jurisdiction only to the extent expressly provided by statute. See § 7442; Ramey, 156 T.C. at 11. 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.
All statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In a deficiency case, 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; Foster v. Commissioner, 445 F.2d 799, 800 (10th Cir. 1971); 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 (or 150 days if the notice is addressed to a person outside the United States) 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 the filing period prescribed by section 6213(a). See Hallmark Rsch. Collective, 159 T.C. at 166-67.
In the Motion to Dismiss, respondent asserts that the notice of deficiency upon which this case is based was sent by certified mail on December 8, 2022, to petitioner's last known address. A certified mail list attached to the Motion to Dismiss establishes that respondent sent the notice of deficiency to petitioner by certified mail on December 8, 2022, to the address listed in the notice. Petitioner has not disputed that the notice was mailed to her 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 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 certified mail list attached as Exhibit A 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.
Because the notice of deficiency was mailed to petitioner's last known address on December 8, 2022, the last date to file a petition with this Court as to that notice was March 8, 2023, as stated therein. Petitioner electronically filed the Petition to commence this case on February 29, 2024. 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. See Rule 22(d); Sanders v. Commissioner, 160 T.C. 563 (2023); Nutt v. Commissioner, 160 T.C. 470 (2023).
Petitioner used a copy of Tax Court Form 2 (Simplified Form) to file the Petition this case. In addition to checking the box under paragraph 1 indicating that she disputes a notice of deficiency, petitioner checked three other boxes (indicating an intent to file a lien or levy action, an action for review of failure to abate interest, and a certification or a failure to reverse certification action with respect to a passport). Respondent asserts in his Motion to Dismiss that no notice of determination concerning collection action, notice of final determination for disallowance of interest abatement claim, or notice of certification of your seriously delinquent federal tax debt to the department of state has been issued to petitioner for the taxable years raised in the Petition, and petitioner does not appear to dispute those assertions in her Objection. In any event, to the extent petitioner may still seek to invoke our jurisdiction under sections 6230(c), 6330(d), 6404, or 7345(e), she has failed to carry her burden to establish affirmatively all facts giving rise to such jurisdiction.
Although we are sympathetic to petitioner's 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) ("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, we note that the dismissal of this case does not preclude petitioner from pursuing administrative resolution of the 2019 and 2020 tax liabilities directly with the Internal Revenue Service (IRS). Another remedy potentially available to petitioner, 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), 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).
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted in that it is:
ORDERED that, to the extent this case was filed in response to the above-referenced notice of deficiency sent by certified mail to petitioner's last known address on December 8, 2022, the case is dismissed for lack of jurisdiction because the Petition was not filed within the period prescribed by section 6213(a). It is further
ORDERED that, to the extent this case was filed seeking to commence a lien or levy action, an action for review of failure to abate interest, or a certification or a failure to reverse certification action with respect to a passport, the case is dismissed for lack of jurisdiction on the ground that there has been no showing that respondent has acted or failed to act in any manner that could support the Court's jurisdiction in this case.