Opinion
913-24
05-29-2024
QUANG PHAM, Petitioner 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 January 19, 2024, and taxable year 2020 was indicated as the period in contention. No notices of deficiency or determination issued by the Internal Revenue Service (IRS) were attached to the petition. The statements in the petition centered primarily on an explanation of gambling losses and financial difficulties experienced by petitioner. The petition had been filed electronically on that January 19, 2024, date, received at 4:32 p.m., and an address in Anaheim, California (the Anaheim address) was provided as the mailing address.
On April 15, 2024, respondent filed a Motion to Dismiss for Lack of Jurisdiction, on the grounds: (1) That the petition was not filed within the time prescribed by section 6213(a) or 7502 of the Internal Revenue Code (I.R.C.) with respect to a notice of deficiency for taxable year 2020; and (2) no notice of determination to form the basis for a petition to this Court had been sent to petitioner with respect to taxable year 2020, nor had respondent made any other determination with respect to petitioner's such tax year that would confer jurisdiction on the Court as of the time the petition herein was filed. Attached to the motion were copies of a notice of deficiency and the corresponding certified mail list (U.S. Postal Service (USPS) Form 3877), as evidence of the fact that such notice of deficiency for the taxable year 2020, dated December 5, 2022, had been sent to petitioner by certified mail on December 5, 2022. Specifically, the notice had been sent to petitioner at an address in Garden Grove, California (the Garden Grove address).
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 timely filing of a petition by the taxpayer. Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092 (9th Cir. 2020); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Brown v. Commissioner, 78 T.C. 215, 220 (1982); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit).. 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. Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 166-67; 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, 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.
A petition is ordinarily "filed" when it is received by the Tax Court in Washington, D.C. See, e.g., Leventis v. Commissioner, 49 T.C. 353, 354 (1968). Although the Court may sit at any place within the United States, its principal office, its mailing address, and its Clerk's office are in the District of Columbia. Sec. 7445, I.R.C.; Rule 10, Tax Court Rules of Practice and Procedure. And a document that is electronically filed with the Court is filed when it is received by the Court as determined in reference to where the Court is located. Nutt v. Commissioner, No. 15959-22, 160 T.C. (May 2, 2023).
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.
Petitioner was served with a copy of respondent's motion to dismiss and on May 8, 2024, filed a response in objection. Therein, petitioner did not directly counter the jurisdictional allegations set forth in respondent's motion regarding timeliness and lack of relevant notices and did not allege that petitioner had filed with the Tax Court before the statutory deadline as to the 2020 notice of deficiency. Instead, petitioner explained as follows with respect to the filing of the petition: "While it is acknowledged that there may have been a delay in filing the petition for the tax year 2020, I respectfully request your consideration of the circumstances that led to this delay. I recently moved to a new address, and unfortunately, did not receive the notices from the IRS, including the notice for appealing timely." The balance of the response then focused on petitioner's gambling losses and financial difficulties. Petitioner closed with a commitment to resolving the situation in accordance with any required procedures and with a request for leniency and understanding.
At that juncture, given the foregoing statements, the Court by Order served May 8, 2024, directed respondent to file a reply to petitioner's response. Petitioner was simultaneously directed to file a supplement to the response, advising therein whether the Garden Grove address was petitioner's last known address at the time that the notice of deficiency was issued and, if not, whether, when, and how respondent (the IRS) was notified of any different address. Petitioner was also advised to attach to the supplement any documentation in support of petitioner's position.
Respondent so filed a reply on May 22, 2024, focusing on the issue of proper mailing. In that document, respondent confirmed: "Based on respondent's diligent search and based on a review of respondent's administrative file and databases that contain electronic exam data, it was determined that the last known address of the petitioner was the Garden Grove, California address at the time the Notice of Deficiency for the 2020 tax year was mailed."
On May 29, 2024, petitioner likewise filed a further reply, with attachments (filed as a supporting "brief"). The principal portion of such submission essentially reprised the statements and arguments made in the earlier May 8, 2024, response, reiterating the challenging personal circumstances and financial losses and difficulties. The supporting materials explained as follows: "This is the receipt that shows my landlord receive $650 to share a room on November 11, 2022 and at new address: 2064 S Margie Lane, Anaheim, CA 92802. This receipt is written in Vietnamese and it is translated by Google translator." The referenced receipt and translation were attached as indicated. Conversely, no communications from petitioner to the IRS were mentioned or shown. The relevant information is not where petitioner was in fact living but what the IRS knew about where petitioner was living at the time the notice of deficiency was mailed.
On this record, then, the Court considers whether jurisdiction has been established with respect to either a deficiency or collection proceeding for 2020. As regards a deficiency case, and as previously noted, the initial petition herein was filed electronically with the Court on January 19, 2024, which date is 410 days after the date of the notice of deficiency for 2020 issued to petitioner. The petition clearly was not filed or mailed within 90 days of the date of the notice mailed to petitioner, i.e., the petition was not filed or sent to the Court on or before the standard March 6, 2023, deadline. However, in this scenario, the filing deadline was in fact extended to November 16, 2023, on account of disaster relief afforded to California residents. Yet, the petition was still filed well after November 16, 2023. Moreover, petitioner has made no claim that petitioner filed a timely Tax Court petition in response to this deficiency notice.
A notice of deficiency is sufficient if it is mailed to the taxpayer's last known address. See sec. 6212(b)(1), I.R.C. In King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987), the Court of Appeals stated that by "establishing a presumption that the taxpayer's 'last known address' is the address on his/her most recent return, we provide a clear starting point for the IRS's determination. A notice of deficiency mailed to that address will be sufficient, unless the taxpayer subsequently communicates 'clear and concise' notice of a change of address." See also sec. 301.6212-2(a), Proced. & Admin. Regs. In such circumstances, the 90-day period prescribed in section 6213(a), I.R.C., is computed by reference to the date the notice of deficiency "is mailed" by certified mail, not the date of attempted delivery, availability, or actual receipt, except in the narrow circumstances where the notice itself sets forth a later, and thus controlling, last date to petition the Tax Court.
Respondent bears the burden of proving proper mailing of the notice of deficiency by competent and persuasive evidence. Coleman v. Commissioner, 94 T.C. 82, 90 (1990). Such burden requires respondent to introduce evidence showing that the notice was properly delivered to the USPS for mailing. Cataldo v. Commissioner, 60 T.C. 522, 524 (1973), aff'd, 499 F.2d 550 (2d Cir. 1974). In particular, as this Court has stated: "A Form 3877 reflecting Postal Service receipt represents direct documentary evidence of the date and the fact of mailing." Coleman v. Commissioner, 94 T.C. at 90. If the existence of the notice of deficiency is undisputed, a properly completed Form 3877 is alone sufficient to establish proper mailing, but even a Form 3877 with defects is probative and may be combined with additional evidence to meet respondent's burden. See O'Rourke v. United States, 587 F.3d 537, 540-542 (2d Cir. 2009); Coleman v. Commissioner, 94 T.C. at 91-92; Portwine v. Commissioner, T.C. Memo. 2015-29, aff'd, 668 Fed.Appx. 838 (10th Cir. 2016).
It is well established in the context of a motion to dismiss for lack of jurisdiction that once respondent has established the fact and date of the mailing of a notice of deficiency, the burden rests on the taxpayer to prove that the notice was not sent to his or her last known address. See, e.g., Yusko v. Commissioner, 89 T.C. 806, 808 (1987); Clevenger v. Commissioner, T.C. Memo. 1998-37, aff'd without published opinion, 176 F.3d 482 (9th Cir. 1999). Stated otherwise, the taxpayer bears the burden of establishing that clear and concise notice of a change of address was provided to the IRS. See, e.g., Mollett v. Commissioner, 82 T.C. 618, 624-625 (1984), aff'd without published opinion, 757 F.2d 286 (11th Cir. 1985); Hammann v. Commissioner, T.C. Memo. 1989-361. In general, notification of a change of address provided by the taxpayer to third parties including payors and other government agencies, rather than to the IRS, is insufficient to satisfy the notice requirement quoted above. Sec. 301.6212-2(b)(1), Proced. & Admin. Regs. However, an exception exists in specified circumstances where a new address has been communicated to the USPS. Sec. 301.6212-2(b)(2), Proced. & Admin. Regs. Regulations provide that the IRS will update taxpayer addresses by referring to data accumulated and maintained in the USPS National Change of Address (NCOA) database. Id.
Here, the Court is satisfied that the combination of evidence proffered is sufficient to establish proper mailing. The existence of the notice has been clearly demonstrated, respondent has supplied a properly postmarked USPS Form 3877, and the record is devoid of any evidence or claim to suggest that petitioner at any relevant time prior to the December 2022 mailing gave the IRS "clear and concise" notice of any address other than that used. Nor is there any suggestion that the exception premised on the NCOA database should alter the result in the instant scenario. Furthermore even problems with delivery by the USPS do not override or otherwise invalidate proper mailing by the IRS.
As to a collection case, respondent's jurisdictional allegations likewise stand unrebutted. Petitioner has at no time established that a notice of determination for 2020 under section 6320 and/or 6330, I.R.C., was issued. Instead, it appears that petitioner may be attempting to rely on other IRS correspondence as the equivalent of a notice of determination. Such is contrary to the law described above.
Thus, the record at this juncture suggests that petitioner 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 petitioner with the right to contest a particular IRS determination in this Court, as of the date the petition was filed. Suffice it to say that no IRS communication supplied or mentioned by petitioner to date (including, e.g., Notices CP2000 and CP523) constitutes, or can substitute for, a notice of deficiency under section 6212, I.R.C., or 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, as of the date the petition was filed. Moreover, the expansive view of the Court's jurisdiction intimated in petitioner's response clearly exceeds the bounds of the limited jurisdiction detailed above. Absent 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 simply because they may pertain to taxes. Stated otherwise, the Court is simply without authority to consider the propriety of any IRS activity (or inactivity) in absence of a determination to petitioner within the meaning of the statutes discussed herein and a timely petition.
In conclusion, 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). As a Court of limited jurisdiction, the Court is simply unable to offer any remedy or assistance when a petition is filed late. Unfortunately, governing law in the present context of this case appealable to the Ninth Circuit recognizes no reasonable cause or other applicable exception to the statutory deadline. Accordingly, since petitioner has failed to establish that the petition was mailed or filed within the required period with respect to the notice of deficiency for 2020, and has failed to establish the existence of any other determination by the IRS that could support this litigation, this case must be dismissed for lack of jurisdiction. The Court would, however, encourage petitioner to consider or to continue to work administratively through the IRS, which, being entirely separate from the Tax Court, may yet be able to offer alternative avenues for relief.
In conclusion then, while the Court is sympathetic to petitioner's situation and understands the challenges of the circumstances faced and the good faith efforts made, the Court on the present record lacks jurisdiction in this case to review any action (or inaction) by respondent in regard to petitioner's taxes. Congress has granted the Tax Court no authority to afford any remedy in the circumstances evidenced by this proceeding, regardless of the merits of petitioner's complaints.
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.