Opinion
26281-22S
10-02-2023
BRIGHT AFAMEFUNA OGBOGU & MICHELLE ROSS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
This case for the redetermination of deficiencies is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2019, filed February 7, 2023. Petitioners oppose the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction as to the taxable year 2019.
On May 24, 2022, respondent sent to petitioners, by certified mail to their last known address, a notice of deficiency for the taxable year 2019. The notice was addressed to petitioners at an address within the United States and informed them that the last date to file a petition with this Court was August 22, 2022.
On November 28, 2022, the Court received and filed the Petition to commence this case. The Petition was delivered to the Court in an envelope bearing a United States Postal Service postmark date of November 23, 2022. Among other things, the Petition seeks review of the notice of deficiency issued to petitioners for 2019.
The Petition also seeks review of a notice of deficiency issued to petitioners for the taxable year 2020. There is no dispute that the Petition was timely filed as to that notice.
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); 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). 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 Rsch. Collective, 159 T.C. at 166-67. 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 for 2019 was mailed to petitioners' last known address on May 24, 2022, the last date to file a petition with this Court as to that Notice was August 22, 2022, as stated in the notice. As noted above, the Petition in this case was filed on November 28, 2022. 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 date of November 23, 2022. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction as to the taxable year 2019.
In an Objection to Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2019, filed June 12, 2023, petitioners assert that "everything on [their] part was done in a timely manner based on the information provided to [them] by the Internal Revenue [Service]," and that "several representatives * * * with the IRS * * * stated [that petitioners] should file both * * * petitions for tax years 2019 & 2020 at the same time." Assuming arguendo that petitioners were so instructed by IRS employees, the law is clear that erroneous legal advice rendered by employees of the IRS generally is not binding on the Commissioner. See Elgart v. Commissioner, T.C. Memo. 1996-379, 1996 WL 460783 at *4 (collecting cases). Moreover, the Court has no authority to extend the period provided by law for filing a petition "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).
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction as to Tax Year 2019 is granted, and this case is dismissed for lack of jurisdiction as to the taxable year 2019. It is further
ORDERED that all references in the Petition to the taxable year 2019 are deemed stricken.
Petitioners are informed that so much of this case relating to the notice of deficiency issued to them for the taxable year 2020 remains pending before the Court.