Opinion
295-22S
03-22-2023
DANIELLE NICOLE TRENNEY & TIMOTHY SCOTT SOWERS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
On January 9, 2022, petitioners electronically filed the petition to commence this case, indicating that they seek review of a notice of deficiency issued "All in 2021". Attached to the petition is a notice of deficiency issued for petitioners' 2019 tax year.
On March 1, 2022, and January 19, 2023, respectively, respondent filed a Motion to Dismiss for Lack of Jurisdiction and a First Supplement to Motion to Dismiss for Lack of Jurisdiction (unless otherwise indicated, hereinafter collectively referred to as the motion to dismiss). In respondent's motion to dismiss, he asserts that this case should be dismissed on the grounds that, as to the notice of deficiency issued for petitioners' 2019 tax year, the petition was not filed within the time prescribed in the Internal Revenue Code and, as to petitioners' 2021 tax year, no notice of deficiency was issued nor has respondent made any other determination sufficient to confer jurisdiction upon this Court..
On May 17, 2022, petitioners filed an Objection to Motion to Dismiss for Lack of Jurisdiction, arguing that this case should not be dismissed as to the notice of deficiency issued to them for tax year 2019. Although the Court provided petitioners an opportunity to file an objection, if any, to respondent's First Supplement to Motion to Dismiss for Lack of Jurisdiction, petitioners have not done so.
The record in this case reflects that a notice of deficiency for petitioners' 2019 tax year was sent to their last known address by certified mail on September 7, 2021. As discussed above, the petition was electronically filed on January 9, 2022, and petitioners attached to the petition a copy of the notice of deficiency issued for their 2019 tax year.
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; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); 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)(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. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
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 (after the taxpayer has properly requested a collection due process hearing) under Internal Revenue Code (I.R.C.) section 6320 or 6330 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. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure.
Other types of 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 (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. No pertinent claims involving I.R.C. sections 6015, 6404(h), 7436, 7623, or 7345, respectively, appear to be involved in this case.
Here, the 90-day period within which to file a timely petition based upon the notice of deficiency for petitioners' 2019 tax year, which was mailed on September 7, 2021, expired on December 6, 2021. As discussed above, the petition was electronically filed on January 9, 2022, which is 124 days after the date the notice of deficiency was mailed to petitioners. In addition, petitioners have not produced or otherwise demonstrated that any notice of deficiency or notice of determination was issued to them for their 2021 tax year.
In their objection to the motion to dismiss, petitioners indicate that the filing of their petition was delayed by their diligent efforts over the course of many months to resolve this matter administratively with the IRS. While the Court can understand petitioners' efforts to administratively resolve this matter, it is well settled that attempts to reach an administrative resolution with the IRS do not extend the 90-day period set forth by statute to timely file a Tax Court petition.
The record establishes that the petition in this case was not timely filed as to the notice of deficiency issued for petitioners' 2019 tax year. We have no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). Nor is there any indication that respondent issued any notice of deficiency, or made any other determination, sufficient to confer jurisdiction on this Court with respect to petitioners' 2021 tax year. Accordingly, the Court is obliged to dismiss this case for lack of jurisdiction.
However, although petitioners may not prosecute this case in this Court, petitioners may continue to pursue administrative resolution of their 2019 tax liability directly with the IRS. Also, another remedy potentially available to petitioners, 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.