Opinion
21583-22SL
06-13-2023
RONALD RAFAEL OPICO & CANDELARIA E LOZANO OPICO, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
The petition underlying the above-docketed proceeding was filed on September 26, 2022, and alleged dispute with respect to a notice or notices of determination concerning collection action. Taxable years 2015 and 2018 were indicated as those in contention. No notices of deficiency or determination issued by the Internal Revenue Service (IRS) were attached to the petition. Rather, attached were partial copies of two IRS communications, i.e., a Notice CP504, Notice of intent to seize (levy) your property or rights to property, dated April 1, 2019, issued to petitioner Candelaria E. Lozano Opico with respect to tax year 2015; and a single page dated January 1, 2020, from a notice pertaining to an existing installment agreement for 2015 and 2018. A further addendum typed by petitioners listed installment payments made, and the comments in that addendum as well as the petition form centered on complaints that the IRS had erroneously altered alleged amounts due and had collected in excess of sums properly owed.
The petition additionally noted that petitioners had litigated a prior Tax Court case at Docket No. 11822-18S. Review of the record for that earlier proceeding shows that it was premised on a notice of deficiency dated March 19, 2018, issued to petitioners for the 2015 year; that the petition had been filed on June 13, 2018; and that a decision closing the case had been entered February 4, 2019. The decision had provided for a reduced deficiency of $2,500 and had stipulated that such deficiency had been computed without considering a prepayment of tax in the amount of $2,744.97 made by petitioners on August 17, 2018.
Subsequently, on May 10, 2023, respondent filed a Motion To Dismiss for Lack of Jurisdiction, on the ground that no notice of determination pursuant to section 6320 and/or 6330 of the Internal Revenue Code (I.R.C.) had been sent to petitioners with respect to the 2015 and 2018 taxable years that would confer jurisdiction on this Court, as of the date the petition herein was filed.
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 a case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the issuance by the Commissioner of a valid notice of deficiency to the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Frieling v. Commissioner, 81 T.C. 42, 46 (1983). The notice of deficiency has been described as "the taxpayer's ticket to the Tax Court" because without it, there can be no prepayment judicial review by this Court of the deficiency determined by the Commissioner. Mulvania v. Commissioner, 81 T.C. 65, 67 (1983). The jurisdiction of the Court in a deficiency case also depends in part on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). In this regard, section 6213(a), I.R.C., 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 the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The Court has no authority to extend this 90-day (or 150-day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of a Tax Court petition (but after issuance), a provision which becomes relevant where that date is later than the date computed with reference to the mailing date. Sec. 6213(a), I.R.C. Likewise, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
Similarly, this Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, I.R.C., depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330, I.R.C. Secs. 6320(c) and 6330(d)(1), I.R.C.; Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer have requested a hearing before the IRS Office of Appeals in reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, Final Notice of Intent To Levy and Notice of Your Right to a Hearing (or the equivalent Notice CP90, Intent to seize your assets and notice of your right to a hearing, depending on the version of the form used), or analogous post-levy notice of hearing rights under section 6330(f), I.R.C. (e.g., a Notice of Levy on Your State Tax Refund and Notice of Your Right to a Hearing).
Other types of IRS notice which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, include a Notice of Final Determination Concerning Your Request for Relief From Joint and Several Liability, a Notice of Final Determination Not To Abate Interest, a Notice of Determination of Worker Classification, Notice of Certification of Your Seriously Delinquent Federal Tax Debt to the State Department, or a Notice of Final Determination Concerning Whistleblower Action. No pertinent claims involving section 6015, 6404(h), 7436, 7345, or 7623, I.R.C., respectively, have been implicated here. Likewise absent is any suggestion that the perquisites have been met to support one of the statutorily described declaratory judgment actions that may be undertaken by the Court.
Petitioners were served with a copy of respondent's motion and on June 5, 2023, filed an objection. Therein, petitioners did not directly counter the jurisdictional allegations set forth in respondent's motion, i.e., petitioners did not claim or show that the IRS had sent a relevant notice of deficiency or determination or any other jurisdictional notice for the 2015 and 2018 years. Instead, petitioners reprised their efforts to pay the 2015 and 2018 taxes via an installment agreement and focused on their claims that the IRS had taken more than the amounts due, in part on account of allegedly having based computations on single rather than joint filing status. They highlighted financial challenges and asked that they be granted a refund of the excess amounts. Conversely, petitioners did not allude to or attach any further notices from the IRS that could bear upon the jurisdictional query before the Court.
Hence, given the foregoing, the absence on the record proffered of any pertinent notice to support an exercise of jurisdiction over 2015 or 2018 in this case as of the September 26, 2022, date the petition was filed becomes apparent. To the extent that the matter might be characterized as stemming from the March 19, 2018, notice of deficiency for 2015 previously petitioned at Docket No. 11822-18S, the September 26, 2022, petition would be untimely by a margin of more than four years.
As to any other potential basis for an action herein for 2015 or 2018, the record is equally bereft of any evidence or suggestion that respondent has at any time issued any other relevant notice of deficiency or determination for the years that would confer jurisdiction on this Court. Conversely, the record at this juncture suggests that petitioners may have sought the assistance of the Court after having become frustrated with administrative actions by the IRS and any attempts to work with the agency but that the petition here was not based upon or instigated by a specific IRS notice expressly providing petitioners with the right to contest a particular IRS determination in this Court. Suffice it to say that no IRS communication supplied or referenced by petitioners to date constitutes, or can substitute for, a notice of deficiency issued pursuant to 6212, I.R.C., a notice of determination issued pursuant to sections 6320 and/or 6330, I.R.C., or any other of the narrow class of specified determinations by the IRS that can open the door to the Tax Court for purposes of this case, as of the date the petition was filed. To the contrary, petitioners= apparently expansive view of the Court's authority fails to comport with the limited nature of the jurisdiction set forth in the statutory parameters recounted above. Without a specific statutory grant to the Court to address a particular notice or scenario, the Court has no general jurisdiction to consider and redress complaints merely because they may pertain to taxes.
Similarly, the Court has no authority to extend that 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). Accordingly, since petitioners have failed to establish that the petition was mailed or filed within the required period with respect to the notice of deficiency for 2015 and have failed to establish the existence of any other determination by the IRS that could support this litigation for 2015 or 2018, dismissal would follow under the usual jurisdictional proscriptions.
Moreover, aside from general parameters of timeliness or absence of appropriate notice, because petitioners previously challenged the notice of deficiency for 2015 at Docket No. 11822-18S, it likewise follows that such notice does not provide a basis for petitioner to invoke the Court's jurisdiction in this action, nor does the Court have the authority to vacate its decision, which is now final. See Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir. 1988), aff=g 86 T.C. 1319 (1986). Except in very limited situations, none of which has been shown to apply here, this Court lacks jurisdiction over a proceeding once a decision or dismissal for lack of jurisdiction becomes final within the meaning of section 7481, I.R.C. See sec. 6214(d), I.R.C.; Stewart v. Commissioner, 127 T.C. 109, 112 (2006); Rice v. Commissioner, T.C. Memo. 2006-236. A reviewable decision of the Tax Court becomes final "Upon the expiration of the time allowed for filing a notice of appeal, if no such notice has been duly filed within such time". Sec. 7481(a)(1), I.R.C. Section 7483, I.R.C., provides that a notice of appeal may be filed within 90 days after a decision is entered. A nonreviewable decision, such as a disposition in a small tax case "S" proceeding, becomes final "upon the expiration of 90 days after the decision is entered". Sec. 7481(b), I.R.C. Consequently, the decision in Docket No. 11822-18S has long since become final, and the Court therefore may not revisit that disposition.
Thus, the premises considered, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.