Opinion
30024-21
04-20-2023
JOHN L. MUTYABA, Petitioner 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 August 2, 2022. 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 August 9, 2022, the Court directed petitioner to file an objection, if any, to the Motion. On August 11, 2022, petitioner filed an Opposition thereto.
By Notice of Deficiency dated June 2, 2021, respondent determined deficiencies and accuracy-related penalties in petitioner's Federal income tax for the taxable years 2018 and 2019. The Petition in this case seeks review of that Notice.
For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
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.
All statutory references are to the Internal Revenue Code 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 was mailed to petitioner at two addresses-both within the United States-and there is no indication in the record that petitioner was 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 June 2, 2021, to petitioner's last known address. A PS Form 3877 attached to the Motion to Dismiss establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on June 2, 2021, to the address in Woodbury, Minnesota, listed in the Notice. Petitioner has not disputed that the Notice was mailed to his 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 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 the foregoing document as presumptive proof of its contents.
The PS Form 3877 attached to the Motion to Dismiss also establishes that a copy of the Notice of Deficiency was sent to petitioner by certified mail on June 2, 2021, to an address in Eagan, Minnesota. In the Motion, respondent states that this Eagan address was provided by petitioner during the audit as his temporary address. The copy of the Notice attached to the Petition bears this Eagan address.
In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on June 2, 2021, the last date to file a petition with this Court as to that Notice was August 31, 2021, as stated in the Notice. The Petition in this case was received and filed by the Court on September 1, 2021. Nevertheless, the Petition was delivered to the Court by FedEx in an envelope bearing a "FedEx Express Saver" label dated August 28, 2021, raising the question whether the "timely mailed, timely filed" rule of section 7502 might apply in this case to deem the Petition timely filed.
In his Motion to Dismiss, respondent asserts that FedEx Express Saver-that is, the specific delivery service used by petitioner to send the Petition to the Court- is not a designated private delivery service for purposes of the "timely mailed, timely filed" rule, and that the rule therefore does not apply in this case. In his Opposition, petitioner notes that he sent the Petition by FedEx Express Saver on August 28, 2021, that is, prior to the expiration of the 90-day period, but he does not appear to address respondent's assertion that FedEx Express Saver is not a designated private delivery service.
To the extent petitioner argues in his Opposition that respondent's Motion to Dismiss should be denied on the ground that it was not filed within 45 days from the date of service of the Petition, we are unpersuaded. It is well settled that this Court can proceed in a case only if it has jurisdiction and that either party, or the Court sua sponte, can question jurisdiction at any time. Brown v. Commissioner, 78 T.C. 215, 218 (1982) (rejecting the same argument).
Section 7502(f) extends the "timely mailed, timely filed" rule of section 7502 to certain private delivery services. But this extension applies only if the delivery service in question has been "designated" by the Secretary for purposes of section 7502. § 7502(f)(2). The Secretary may so designate a private delivery service only if the Secretary determines that it is at least as timely and reliable as the United States mail and that it meets other criteria specified in the statute. See § 7502(f)(2)(A)-(D).
In Notice 2016-30, 2016-18 I.R.B. 676, effective April 11, 2016, the Internal Revenue Service (IRS) listed all private delivery services that have been designated by the Secretary under section 7502(f). The FedEx delivery services included on this list are as follows: FedEx First Overnight, FedEx Priority Overnight, FedEx Standard Overnight, FedEx 2 Day, FedEx International Next Flight Out, FedEx International Priority, FedEx International First, and FedEx International Economy. Notice 2016-30 explicitly states that "FedEx * * * [is] not designated with respect to any type of delivery service not enumerated in this list." Thus, FedEx Express Saver, which does not appear on the list, is not a designated private delivery service. See Eichelburg v. Commissioner, T.C. Memo. 2013-269 (holding that the "timely mailed, timely filed" rule did not apply to "FedEx Express Saver" service because that service had not been designated under section 7502(f)); Scaggs v. Commissioner, T.C. Memo. 2012-258 (holding that the "timely mailed, timely filed" rule did not apply to "FedEx Express Saver Third business day" service because that service had not been designated under section 7502(f)); Raczkowski v. Commissioner, T.C. Memo. 2007-72 (holding that the "timely mailed, timely filed" rule did not apply to "UPS Ground" service because that service had not been designated under section 7502(f)).
Because petitioner sent the Petition using FedEx Express Saver, and that service is not a designated private delivery service, petitioner cannot avail himself of the "timely mailed, timely filed" rule of section 7502(a) and (f). And as noted, his Petition was not filed until September 1, 2021, that is, after the expiration of the 90-day period. Consequently, the Petition was not filed within the time prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
We are sympathetic to petitioner's circumstances. However, Congress has limited our jurisdiction in the deficiency context to those cases in which a petition is timely filed, and we do not have authority to extend by equitable tolling the 90-day period set forth in section 6213(a). Hallmark Research Collective, slip op. at 42; 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, while petitioner cannot pursue his case in this Court, he may continue to pursue administrative resolution of the 2018 and 2019 tax liabilities with the IRS. Another remedy potentially available to petitioner, 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), 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).
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.