Opinion
12875-24S
09-23-2024
MICHELLE A. NEWTON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed September 19, 2024, on the grounds that the Petition was not filed within the time prescribed in the Internal Revenue Code. Also on September 19, 2024, petitioner filed a Response to Motion to Dismiss for Lack of Jurisdiction, opposing the granting of respondent's Motion.
By means of a certified mail list attached to respondent's Motion, the record reflects that a notice of deficiency for petitioner's 2021 tax year was sent by certified mail to petitioner's last known address (the same address used by petitioner when filing the Petition) on September 25, 2023. The notice of deficiency stated that the last day to file a Petition with the Tax Court was December 26, 2023. The Petition to commence this case was electronically filed August 8, 2024.
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. Rochelle v. Commissioner, 293 F.3d 740 (5th Cir. 2002) (per curiam), aff'g 116 T.C. 356 (2001); 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). 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). 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).
Based on the notice of deficiency's mailing date of September 25, 2023, the 90-day period to timely file a Tax Court petition expired on December 26, 2023. Thus the Petition in this case--filed August 8, 2024--was not timely filed.
In her response in opposition to respondent's Motion, petitioner argues that respondent's Motion should not be granted because she never received the notice of deficiency that was mailed to her. However, as discussed above, the statute does not require that respondent prove petitioner received the notice of deficiency. Monge v. Commissioner, 93 T.C. at 33
Because the record establishes that the Petition was not timely filed, the Court is obliged to dismiss this case for lack of jurisdiction. 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). However, although petitioner may not prosecute this case in this Court, petitioner may still be able to pursue an administrative resolution of the 2021 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 is granted and this case is dismissed for lack of jurisdiction because the Petition was not filed within the period prescribed by Internal Revenue Code section 6213(a).