Opinion
28075-22
06-14-2023
JORDAN JOHN O'NEILL, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
James S. Halpern Judge
Respondent moves (Motion) that this case be dismissed for lack of jurisdiction as to Notices of Deficiency issued to petitioner for tax years 2016 and 2017 upon the grounds that petitioner did not file the Petition within the time prescribed by sections 6213(a) or 7502. Respondent further moves that this case be dismissed for lack of jurisdiction as to any purported Notices of Deficiency issued to petitioner for tax years 2013, 2014, and 2015 upon the grounds that no notices, as authorized by section 6212(a) to form the basis for a petition to this Court, have been sent to Petitioner with respect to those years. Petitioner objects to our granting the Motion. We will deny the Motion in part, with respect to the 2016 and 2017 Notices, and grant it in part, with respect to the 2013, 2014, and 2015 Notices.
All statutory references are to the Internal Revenue Code of 1986, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.
2016 and 2017 Notices
Background
Petitioner filed the Petition on January 30, 2022. Attached to the Petition are copies of two Notices of Deficiency, both addressed to petitioner at [street address], Los Angeles, California. One Notice, with respect to 2016 (2016 Notice), is dated March 4, 2019, and determines a deficiency of $9,157 and an accuracy-related penalty of $2,004. The second Notice, with respect to 2017 (2017 Notice), is dated August 5, 2019, and determines a deficiency of $7,219 and an accuracy-related penalty of $1,444. Neither Notice shows the official, if any, who determined the deficiency and penalty specified in the Notice. Both Notices show on the first page a multi-digit number that we assume to be a certified mail number. Copies of the 2016 and 2017 Notices are also attached to the Motion. Also attached to the Motion, are two United States Postal Service (USPS) Forms 3877, which are used by the Commissioner to record certified mailings. Both Forms 3877 have an entry showing a certified mail number next to an entry showing petitioner's name and an address, which address is the same as on the two Notices. Each form shows a stamped USPS postmark ("Ogden UT, 84201"). The postmark date on the first of the Forms 3877 (offered by respondent in support of mailing the 2016 Notice) is March 4, 2019, and the certified mail number on the form matches the multi-digit number on the 2016 Notice. The postmark date on the second Form 3877 (offered by respondent in support of mailing the 2017 Notice) is August 5, 2019, and the certified mail number on the form matches the multi-digit number on the 2017 Notice. Neither form has an entry in the block for the number of pieces of mail listed on the form or in the block for the number of pieces received by the Post Office. Neither has an entry in the block provided for the signature of the receiving USPS employee.
Respondent avers that the 2016 Notice, was sent to petitioner's last known address by certified mail on March 4, 2019, as shown by the postmark date stamped on the accompanying Form 3877. Respondent further avers that the 90-day period for timely filing a petition with the Tax Court expired for the 2016 Notice on June 3, 2019.
Respondent similarity avers that the 2017 Notice, was sent to petitioner's last known address by certified mail on August 5, 2019, as shown by the postmark date stamped on the accompanying Form 3877. Respondent further avers that the 90-day period for timely filing a petition with the Tax Court expired for the 2017 Notice on November 4, 2019.
Finally, respondent further avers that January 30, 2022, the date the Petition was filed, is 1,064 days after the mailing of the 2016 Notice and 910 days after the mailing of the 2017 Notice.
Respondent concludes: "The petition was not filed with the Court within the time prescribed by I.R.C. § 6213(a)."
Petitioner objects to the Motion so far as it concerns the 2016 and 2017 Notices on three grounds: (1) He never received the Notices, (2) respondent has provided incomplete Forms 3877 as proof of timely mailing to his last known address, and (3) the Notices were not issued by an official with delegated authority to do so.
Discussion
It is well settled that in order for a petitioner to maintain a deficiency action in this Court there must be a valid notice of deficiency and a timely filed petition. See, e.g., Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. slip op. at 11 (Nov. 29, 2022). Respondent asks us to rule that petitioner cannot maintain a deficiency action in this Court with respect to the 2016 and 2017 Notices for failure to timely file a petition. As with a motion for summary judgment, respondent, as movant, must show that the pleadings and acceptable materials show that there is no genuine dispute as to any material facts and that a decision may be rendered as a matter of law. See Shaddix v. Commissioner, T.C. Memo 2022-11, at *2; Rule 121(b). We construe factual materials and inferences drawn from them in the light most favorable to the nonmovant (here petitioner). See, e.g., id.
Section 6212(a) provides that the Commissioner may "send notice of . . . [a] deficiency to the taxpayer by certified mail or registered mail." A properly mailed notice of deficiency is valid irrespective of whether such notice is in fact received by the taxpayer. McKay v. Commissioner, 89 T.C. 1063, 1067 (1987), aff'd, 886 F.2d 1237 (9th Cir. 1989). Where, as here, "the existence of the notice of deficiency is not disputed, a properly completed Form 3877 by itself is sufficient, absent evidence to the contrary, to establish that the notice was properly mailed to a taxpayer. . . . More specifically, exact compliance with the Form 3877 mailing procedures raises a presumption of official regularity in favor of respondent." Coleman v. Commissioner, 94 T.C. 82, 91 (1990). However, a defective Form 8377 does not give rise to a presumption of regularity. See Knudsen v. Commissioner, T.C. Memo. 2015-69, at *14. The Forms 3877 presented by respondent are defective in that they contain no indication of the number of items respondent delivered to the USPS and no required signatures of the USPS employees who received from respondent the items to mail. We will, therefore, not presume that the 2016 and 2017 Notices were mailed on the postmark dates. See id., at *16. Without that presumption, and viewing the alleged facts in the light most favorable to petitioner, we conclude respondent has not established that petitioner is time barred from contesting the 2016 and 2017 Notices. For that reason, we will deny the Motion with respect to 2016 and 2017. That does not mean that respondent may not eventually prevail. A trial will be necessary concerning respondent's alleged mailing of the Notices to petitioner. At trial, the defects in the Forms 3877 do not necessarily preclude a decision in favor of respondent with respect to the proper mailing of the Notices. Our ultimate decision on this issue will depend on the credibility and persuasiveness of what petitioner and respondent offer into evidence at trial. See id., at *17.
Having determined to deny the Motion with respect to 2016 and 2017 Notices because respondent has failed to show that petitioner was time barred from challenging respondent's deficiency determinations with respect to those years, we need not address petitioner's claim that the Notices are invalid because not issued by an official with the delegated authority to do so. Moreover, dismissing on that ground would result in an affirmative dismissal in petitioner's favor, and petitioner has not moved us to do so.
2013, 2014, and 2015 Notices
By the Petition, it appears that petitioner disputes deficiencies determined by respondent for tax years 2013, 2014, and 2015. In support of that part of the Motion that asks that we dismiss this case for lack of jurisdiction with respect to those years, respondent avers:
[He] has diligently searched his records and contacted I.R.S. personnel in an attempt to determine whether any notices of deficiency were issued for Petitioner's tax years 2013-2015. Based on said diligent search and based on a review of Respondent's records kept in the ordinary course of business when Respondent issues and mails a notice to a specific taxpayer, there is no record, information, or other evidence indicating that notices of deficiency as required by I.R.C. § 6213 were mailed to Petitioner with respect to the tax years 2013-2015.
Accordingly, respondent argues, we should dismiss this case with respect to those years because no notices of deficiency sufficient to confer jurisdiction on the Court pursuant to section 6212 have been sent to petitioner with respect to those years.
In response to the Motion, petitioner states: "[The Petition] does not "raise[] or argue[] the existence of 'purported Notices for the years 2013-2015.'" Rather, he continues, his disputes with respondent concerning 2013, 2014, and 2015 are with respect to frivolous return penalties determined for those years under section 6702(a). Section 6702 penalties are not subject to the deficiency procedures. Sec. 6703(b). We take petitioner's response as a concession that we may dismiss the petition for lack of jurisdiction with respect to 2013, 2014, and 2015.
Conclusion
On the premises stated, it is
ORDERED that the Motion is in part denied in that so much of it that relates to 2015 and 2016 is denied. It is further
ORDERED that the Moton is in part granted in that so much of it that relates to 2013, 2014, and 2015 is granted.