Opinion
3648-24L
06-06-2024
NJERI NGARUIYA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
Pending before the Court in this case is respondent's Motion to Dismiss for Lack of Jurisdiction, filed April 23, 2024. Therein respondent moves that the case be dismissed for lack of jurisdiction on the grounds (1) that with respect to a notice of deficiency issued to petitioner for tax year 2021, the Petition was not filed within the time prescribed in the Internal Revenue Code; and (2) that no notice of determination concerning collection action has been sent to petitioner with respect to tax year 2021, nor has respondent made any other determination as to tax year 2021 that would confer jurisdiction on this Court. Petitioner objects to the granting of respondent's Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
On March 4, 2024, petitioner filed the Petition in the above-docketed matter, disputing a purported notice of determination concerning collection action for tax year 2021. Therein petitioner alleges that the IRS failed to process petitioner's amended tax return for 2021. Attached to the Petition was an IRS Notice CP22A, which notified petitioner of changes to petitioner's 2021 Form 1040.
As noted above, on April 23, 2024, respondent filed the Motion to Dismiss pending before the Court. On June 4, 2024, petitioner filed a document under the DAWSON label of "Motion to Reopen the Record," but which is titled "Motion to Oppose Respondent's Motion to Dismiss for Lack of Jurisdiction and Motion to Reinstate Jurisdiction in this Matter." This filing constitutes petitioner's objection to respondent's Motion. In the objection, petitioner requests that respondent's Motion be denied and asks that the Court compel respondent to process petitioner's taxes "accurately" and to provide an explanation as to why this has not occurred. Petitioner does not address respondent's jurisdictional arguments.
Like all federal courts, the Tax Court is a court of limited jurisdiction. 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 deficiency case, this Court's jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); 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).
The notice of deficiency upon which this case is based was sent by certified mail on July 24, 2023, to petitioner's last known address. The 90th day after the date on which the notice was mailed was Sunday, October 22, 2023; however, Internal Revenue Code (I.R.C.) 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. Hence, the last date to file a petition as to the notice of deficiency in this case was October 23, 2024, as printed on the notice. Petitioner electronically filed the Petition to commence this case on March 4, 2024. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and we lack jurisdiction with respect to the notice of deficiency issued to petitioner for tax year 2021.
Our jurisdiction in the collection due process context depends in part upon the issuance of a valid notice of determination concerning collection action. See I.R.C. §§ 6320(c), 6330(d)(1); Rule 330(b); Orum v. Commissioner, 123 T.C. 1, 8 (2004), aff'd, 412 F.3d 819 (7th Cir. 2005); Offiler v. Commissioner, 114 T.C. 492, 498 (2000). To date, petitioner has failed to establish that petitioner has been issued a notice of determination concerning collection action or any other notice sufficient to confer jurisdiction on the Court in this case. Consequently, petitioner has failed to establish affirmatively all facts giving rise to our jurisdiction, and we must dismiss this case for lack of 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); see also Garland v. Commissioner, 786 Fed.Appx. 240 (11th Cir. 2019) (affirming an order of dismissal for lack of jurisdiction where the taxpayers had failed to produce a notice of deficiency, notice of determination, or any other determination pertaining to the tax years raised in the petition).
Although petitioner cannot prosecute this case in this Court, petitioner may still pursue an administrative resolution of petitioner's 2021 tax liability directly with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amounts 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).
Upon due consideration, and for cause, it is
ORDERED that petitioner's Motion to Reopen the Record, filed June 4, 2024, is recharacterized as petitioner's Objection to Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that respondent's above-referenced Motion to Dismiss for Lack of Jurisdiction, is granted, and this case is dismissed for lack of jurisdiction.