Opinion
13123-21S
06-02-2023
PETER NAYLOR & MARIA NAYLOR, Petitioners 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. Petitioners oppose the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated January 4, 2021, respondent determined a deficiency in petitioners' federal income tax for the taxable year 2018. On the aforementioned date, the Notice was sent by certified mail to petitioners' last known address. The Notice informed petitioners that the last date to file a petition with the Tax Court was April 5, 2021.
The above-referenced address was within the United States.
On April 12, 2021, the Court received and filed the Petition to commence this case. The Petition arrived at the Court in an envelope bearing a legible U.S. Postal Service (USPS) postmark date of April 6, 2021.
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 v. Commissioner, No. 21284-21, 159 T.C., slip op. at 6 n.4 (Nov. 29, 2022) (collecting cases). 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 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 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.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Because the Notice of Deficiency was mailed to petitioners' last known address on January 4, 2021, the last date to file a petition with this Court as to that Notice was April 5, 2021, as stated in the Notice. As noted above, the Petition in this case was filed on April 12, 2021. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see § 7502, the Petition in this case was delivered to the Court in an envelope bearing a postmark of April 6, 2021. Consequently, the Petition was not filed or deemed filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
The 90th day after the date of mailing was Sunday, April 4, 2021; however, section 6213(a) provides that Saturdays, Sundays, and legal holidays in the District of Columbia are not counted as the last day of the 90-day period.
Petitioners assert that they deposited the envelope bearing the Petition in a USPS mailbox on the afternoon of April 5, 2021, before the last posted collection time, but that the USPS did not postmark the envelope until the following day. On this basis, they assert that they "filed in time."
The regulations warn taxpayers that "the sender who relies upon the applicability of section 7502 assumes the risk that the postmark will bear a date on or before the last date * * * prescribed for filing." Treas. Reg. § 301.7502-1(c)(1)(iii)(A). To avoid this risk, the regulations advise the use of registered or certified mail. Ibid. Because the USPS postmark in this case is legible and does not bear a date on or before April 5, 2021, the Petition is not rendered timely by section 7502, and therefore not timely filed under section 6213(a), regardless of when it was deposited in the mail. See Allen v. Commissioner, 130 A.F.T.R.2d 2022-6775, 2022 WL 17825934 (11th Cir. 2022) (summarily affirming Tax Court's dismissal of case for lack of jurisdiction where the envelope bearing the petition was postmarked one day after the filing deadline); Thomas v. Commissioner, T.C. Memo. 2020-33; Sanchez v. Commissioner, T.C. Memo. 2014-223.
To the extent petitioners argue 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).
We are sympathetic to petitioners' circumstances. But we have no authority to extend the time for filing a petition with the Tax Court for redetermination of a deficiency "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972). Nevertheless, while petitioners cannot pursue their case in this Court, they may continue to pursue administrative resolution of the 2018 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioners, 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), petitioners 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 Motion to Dismiss for Lack of Jurisdiction, filed January 5, 2022, is granted, and this case is dismissed for lack of jurisdiction.