Opinion
9409-24S
09-13-2024
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On June 6, 2024, petitioner Abdul Nawabi filed the Petition to commence this case, indicating therein that petitioner seeks review of a notice of determination concerning collection action issued for petitioner's "2021/2022" tax years.
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed July 22, 2024, and supplemented on August 9, 2024 (collectively, respondent's Motion to Dismiss). As grounds for his Motion to Dismiss, respondent asserts that (1) as to a notice of deficiency issued for petitioner's 2021 tax year, the Petition was not filed within the time prescribed in the Internal Revenue Code; (2) respondent has made no other determination as to petitioner's 2021 tax year sufficient to confer jurisdiction on this Court; and (3) respondent has issued no notice of deficiency, nor made any other determination, sufficient to confer jurisdiction on this Court as to petitioner's 2022 tax year.. On September 12, 2024, 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. Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082 (9th Cir. 2020); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); see 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). We have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). 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, or 150 days if the notice is addressed to a person outside the United States, 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). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. 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. §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. § 7502(a)(2). The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. § 6212(b). 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. Treas. Reg. § 301.6212-2(a); King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
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 under I.R.C. section 6320 or 6330, after petitioner has requested and received a collection due process hearing following the issuance of a notice of filing of federal tax lien, a final notice of intent to levy, or an analogous post-levy notice of hearing rights under I.R.C. section 6330(f) (e.g., a notice of levy on your State tax refund and notice of your right to a hearing) 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. §§ 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure.
Other IRS notices which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, are a notice of determination concerning relief from joint and several liability under section 6015 (or failure of IRS to make determination within 6 months after election or request for relief), a notice of final determination for disallowance of interest abatement claim (or failure of IRS to make final determination within 180 days after claim for abatement), a notice of determination of worker classification, a notice of determination under section 7623 concerning whistleblower action, and a notice of certification of a seriously delinquent federal tax debt to the Department of State.
Based on the date of the notice of deficiency issued for petitioner's 2021 tax year, the 90-day period to timely file a Tax Court petition expired on September 6, 2022. The Court received and filed the Petition on June 6, 2024. The Petition was received in an envelope bearing a postmark date of May 28, 2024. Accordingly, the Petition was filed late as to the 2021 notice of deficiency. Furthermore, petitioner has not demonstrated that petitioner was issued any other notice of deficiency, or that respondent made any other determination, as to petitioner's 2021 and 2022 tax years that would permit petitioner to invoke the jurisdiction of this Court.
In the objection to the Motion to Dismiss, petitioner explains the merits of petitioner's claims but does not address respondent's jurisdictional allegations. If the Court does not have jurisdiction, however, we cannot reach the merits of a case.
The record establishes that there is no basis for the Court to exercise jurisdiction in this case. However, although petitioner may not prosecute this case in this Court, petitioner may still be able to continue to pursue an administrative resolution of petitioner's tax liability directly with the Internal Revenue Service (IRS). Also, 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).
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, as supplemented, is granted and this case is dismissed for lack of jurisdiction.