Opinion
315-22S
04-26-2022
ABDEL RAOUF NASHNOUSH & ALA BEN SASI, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
On February 28, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not filed within the time prescribed by the Internal Revenue Code. On March 1, 2022, petitioners filed a Notice of 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; 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 notice of deficiency is valid if, among other things, it is mailed to the taxpayer's last known address. See I.R.C. sec. 6212(b)(1). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. Monge v. Commissioner, 93 T.C. 22, 33 (1989). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89 T.C. 806, 808 (1987).
The record reflects that the notice of deficiency on which this case is based was mailed August 2, 2021, to petitioners at 12507 Rustic Rock Lane, Beltsville, Maryland. According to IRS records, at the time that notice of deficiency was mailed, the Rustic Rock Lane address was petitioners' last known address. That address was the address that appeared on petitioners' income tax return for 2020 (received by the IRS on May 14, 2021), which was petitioners' most recently filed and properly processed tax return. That address is also the address that appears on the petition filed to commence this case. Although the IRS is not required to prove delivery or actual receipt of the notice, tracking records from the website of the United States Postal Service show that the notice of deficiency was delivered to petitioners' last known address on August 5, 2021. Based on the notice of deficiency's mailing date of August 2, 2021, the last day to timely file a petition with this Court was November 1, 2021. Petitioners electronically filed this case on January 10, 2022, after the last day the petition could be timely filed.
In their petition, petitioners state "I never received the notice from the IRS. I did not live in the address where the notice was sent and did not receive the mail on time." Additionally, in their objection to respondent's motion, petitioners state "I did not receive the notice on time, I was out of state and didn't receive the notice by mail." However, petitioners have not shown that the address to which the notice of deficiency was mailed was not their last known address or that they provided the IRS with clear and concise notification of a different address.
Petitioners have not established that the notice of deficiency upon which this case is based is invalid. Furthermore, based on the mailing date of the notice of deficiency, the petition in this case was not timely filed. The Court has no authority to extend the period for timely filing. Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
However, although petitioners may not prosecute a case in this Court, they may continue to pursue an administrative resolution of their 2019 tax liability with the IRS. Another option, if feasible, is for petitioners 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).
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.