Opinion
6323-22L
07-06-2023
EDWARD MONTO, JR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Ronald L. Buch, Judge.
Before us is the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed May 20, 2022. Mr. Monto filed a petition in which he purported to challenge both a notice of deficiency and a notice of determination. He filed that petition more than two years after the Commissioner sent him a notice of deficiency; the Commissioner had not sent him a notice of determination concerning collection action.
In a deficiency case, a person has ninety days from the mailing of the notice of deficiency to file a petition with the Tax Court for review, and we lack jurisdiction to redetermine a deficiency if the petition is untimely. And in a collection case, a notice of determination is a prerequisite to our jurisdiction in collection cases. Because Mr. Monto filed his petition more than 90 days after the mailing of the notice of deficiency, and the Commissioner did not issue a notice of determination, we must dismiss this case for lack of jurisdiction.
Background
The Commissioner mailed a notice of deficiency dated November 12, 2019, to Mr. Monto. The certified mail list confirms that it was mailed on that date. According to the notice, the final day to file a petition was February 10, 2020, which was 90 days after the mailing of the notice.
On August 30, 2021, the Commissioner mailed a Notice Of Intent To Levy And Of Your Right To A Hearing to Mr. Monto. According to the notice, Mr. Monto could appeal the levy by requesting a hearing by September 29, 2021, which was 30 days after the mailing of the notice. According to the Commissioner, Mr. Monto did not request a hearing in response to that notice, and thus the Commissioner never issued a notice of determination concerning collection action.
On March 11, 2022, the Court received a petition from Mr. Monto. That petition was contained in an envelope that was postmarked on March 8, 2022. In his petition, he purports to challenge a notice of deficiency and a notice of determination concerning collection action. In his petition, Mr. Monto asserts that the Commissioner never sent him a notice of deficiency.
On May 20, 2022, the Commissioner filed a motion to dismiss for lack of jurisdiction. In his motion, the Commissioner argues that we lack jurisdiction over either a deficiency action or a collection action with respect to Mr. Monto. As for a deficiency action, the Commissioner argues that the petition was not filed within 90 days of the Commissioner's mailing of the notice of deficiency, and thus the petition is untimely. As for a collection action, the Commissioner argues that we lack jurisdiction because a notice of determination is a prerequisite to our jurisdiction in a collection action, and no such notice was issued because Mr. Monto never sought a collection hearing.
Discussion
Like other federal courts, we are a Court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. I.R.C. § 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016); Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Our jurisdiction in deficiency cases is predicated on a valid notice of deficiency and a timely petition. I.R.C. §§ 6213, 7442; Rules 13, 20; Dees v. Commissioner, 148 T.C. 1, 3-4 (2017). Under section 6213(a), a petition must be filed within 90 days after the notice of deficiency is mailed. The period within which to file a petition cannot be extended by the Court, and we must dismiss a case for lack of jurisdiction if the petition is not filed within the prescribed time. Rule 25(b)(2)(C); Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 42 (Nov. 29, 2022); Blum v. Commissioner, 86 T.C. 1128, 1131 (1986).
Unless otherwise indicated, statutory references are to the Internal Revenue Code (Code), Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
The Commissioner established that he properly mailed a notice of deficiency to Mr. Monto. Section 6212 provides that the notice of deficiency must be sent by certified or registered mail to the taxpayer at his last known address. It is sufficient that the Commissioner mailed the notice; it is not necessary that the taxpayer received it. See Keado v. U.S., 853 F.2d 1209, 1211-1212 (5th Cir. 1988). The Commissioner bears the burden of proving by competent and persuasive evidence that he properly mailed the notice of deficiency. Coleman v. Commissioner, 94 T.C. 82, 90 (1990). A Form 3877, commonly referred to as a certified mail list, showing the postal service's receipt of an article for certified mailing represents direct documentary evidence of the date and the fact of mailing and will satisfy this burden. Id. at 90. The Commissioner included a Form 3877 showing the mailing of a certified letter to Mr. Monto. The certified mail number matches the certified mail number appearing on the notice of deficiency. Thus, the Commissioner has carried his burden to show he properly mailed the notice. Proof of receipt is not necessary. See Keado v. U.S., 853 F.2d 1209, 1211-1212 (5th Cir. 1988).
We lack deficiency jurisdiction in this case. Mr. Monto mailed his petition to the Court, and the Court received it, more than two years after the filing deadline. See §§ 6213(a), 7502. To the extent Mr. Monto is attempting to challenge the November 12, 2019, notice of deficiency, the petition is untimely and we lack jurisdiction. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 42 (Nov. 29, 2022).
We similarly lack jurisdiction to review the Commissioner's collection action. For this Court to have jurisdiction over a collection action, the Commissioner must have issued a notice of determination. I.R.C. § 6330(d); Lunsford v. Commissioner, 117 T.C. 159, 164 (2001). Because Mr. Monto did not request a collection hearing, the Commissioner never issued a notice of determination. Without a notice of determination, we do not have jurisdiction to review the Commissioner's determination.
Conclusion
Mr. Monto filed an untimely petition challenging the determinations made in the Commissioner's notice of deficiency for 2017. Because that petition was untimely, we lack deficiency jurisdiction. Mr. Monto also attempted to challenge a nonexistent notice of determination concerning collection action. Without such a notice, we lack jurisdiction over any collection actions. Accordingly, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.