Opinion
2949-19
08-24-2021
Bernadette Peter, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Joseph H. Gale Judge
By Order and Order to Show Cause served April 5, 2021, the Court directed the parties to file, on or before April 23, 2021, a response showing cause in writing why the Court, on its own motion, should not dismiss this case for lack of jurisdiction on the ground that the Petition in this case was not filed within the time prescribed by the Internal Revenue Code. The Court thereafter extended the time for filing such a response to June 22, 2021.
On May 24, 2021, respondent filed a response. Therein, respondent states that he has no objection to the Court dismissing this case for lack of jurisdiction, as, in respondent's view, the Petition was not timely filed. To date, petitioner has failed to file a response. For the reasons set forth below, we conclude that the Petition was not timely filed and that this case must accordingly be dismissed for lack of jurisdiction.
Because petitioner consented to electronic service, all Court documents are served on petitioner electronically. To date, the Court has received no notification that any electronic service has not been delivered.
Background
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By notice of deficiency dated October 29, 2018, respondent determined a deficiency in petitioner's Federal income tax for the 2016 taxable year. On the foregoing date, a copy of the notice of deficiency was sent by U.S. Postal Service (USPS) certified mail to petitioner at the address (within the United States) appearing in the notice.
Respondent has attached to his response a copy of USPS Form 3877. The Form 3877 bears a postmark of October 29, 2018, and indicates that on that date a certified mailing was sent to petitioner at the address appearing in the notice of deficiency. The certified mail article number listed on the Form 3877 corresponds to the number listed on the first page of the notice of deficiency. Where, as here, there is no dispute as to the existence of a notice of deficiency, "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." Coleman v. Commissioner, 94 T.C. 82, 91 (1990); Moukhitdinov v. Commissioner, T.C. Memo. 2020-86, 2020 WL 3259622, *3; Ruddy v. Commissioner, T.C. Memo. 2017-39, 2017 WL 698662, *4, aff'd, 727 Fed.Appx. 777 (4th Cir. 2018). We accordingly find that the notice of deficiency was properly mailed to petitioner on October 29, 2018.
On February 7, 2019, several documents arrived at the Court in an envelope bearing an illegible postmark and were filed as an imperfect Petition to commence this case. These documents include: (1) an incomplete copy of the notice of deficiency issued to petitioner for 2016, on which someone, presumably petitioner, has handwritten "I disagree See The 1040X I sent"; and (2) a copy of a Form 1040X, Amended U.S. Individual Tax Return, for 2016, signed and dated by petitioner on January 30, 2019.
As more fully discussed in the Court's Order and Order to Show Cause served April 5, 2021, this handwritten statement appears to reference the title ("If you disagree") of the set of instructions provided in the notice of deficiency for the filing of a petition for redetermination with this Court. Someone (again, presumably petitioner) has circled those instructions, as well as the address provided therein for mailing a petition to the Court.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See sec. 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). Where this Court's jurisdiction is duly challenged, the jurisdiction must be affirmatively shown by the party seeking to invoke that 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); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, that party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 270.
Section references are to the Internal Revenue Code in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
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 secs. 6212, 6213, and 6214; Rule 13(a) and (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). In the latter regard section 6213(a) provides that a taxpayer has 90 days (or 150 days if the notice of deficiency is addressed to a taxpayer outside the United States) after the mailing of the notice of deficiency (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day) to file a petition for redetermination with this Court. We have no authority to extend this 90-day (or 150-day) period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020). However, under certain circumstances a timely mailed petition may be treated as though it were timely filed. See sec. 7502; sec. 301.7502-1, Proced. & Admin. Regs.
As noted above, the notice of deficiency in this case was mailed on October 29, 2018, to petitioner at an address within the United States. Accordingly, the last date on which to file a timely petition with respect to that notice was January 28, 2019. The Petition in this case was filed on February 7, 2019, and was therefore untimely.
2
Although a petition that is delivered to the Court after the expiration of the period prescribed by section 6213(a) shall be deemed timely if it bears a timely postmark, see sec. 7502, the envelope in which the Petition in this case was mailed to the Court bears an illegible postmark. Where, as here, a postmark is illegible, we permit the introduction of extrinsic evidence to ascertain the mailing date, see Sylvan v. Commissioner, 65 T.C. 548, 553-555 (1975), but the burden is on the party invoking section 7502 to present "convincing evidence" of timely mailing, Mason v. Commissioner, 68 T.C. 354, 356-357 (1977); Spain v. Commissioner, T.C. Memo. 2021-58, 2021 WL 1885929, at *3; see also sec. 301.7502-1(c)(1)(iii)(A), (B)(1), Proced. & Admin. Regs. Having failed to comply with the Court's Order to Show Cause directing her to file a response regarding the timeliness of her Petition, petitioner has failed to introduce any evidence as to the date of its mailing. Consequently, petitioner has failed to carry her burden to "establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 270; see also Spain v. Commissioner, T.C. Memo. 2021-58, 2021 WL 1885929, at *3; Bobbs v. Commissioner, T.C. Memo. 2005-272, 2005 WL 3157919, at *4; Hord v. Commissioner, T.C. Memo. 2000-147, 2000 WL 436732, at *2-*3, aff'd, 251 F.3d 156 (5th Cir. 2001).
We note that the extrinsic evidence that is in the record, namely, the date of petitioner's signature on the Form 1040X (i.e., January 30, 2019), indicates that the Petition was mailed after the expiration of the 90-day period for filing a petition for redetermination with this Court.
As the Petition was not filed (or deemed filed) within the period prescribed by sections 6213(a) and 7502, we lack jurisdiction to redetermine a deficiency in petitioner's Federal income tax for 2016 and must dismiss this case for lack of jurisdiction.
The foregoing considered and for cause, it is
ORDERED that the Court's Order to Show Cause served April 5, 2021, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. It is further
ORDERED that respondent's February 10, 2020, oral motion to dismiss for lack of prosecution is denied as moot. It is further
ORDERED that the Court's Order to Show Cause served February 18, 2020, is hereby discharged.
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