Opinion
26019-22
03-03-2023
MAUREEN A. POSTLEWAITE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On November 23, 2022, petitioner filed the petition to commence this case, indicating therein that she seeks review of a notice of determination concerning collection action issued for her 2021 and 2022 tax years. Petitioner attached to the petition a notice of deficiency issued for her 2019 tax year. However, no notice of determination concerning collection action is attached to the petition.
On January 13, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction (motion to dismiss) on the grounds that (1) as to a notice of deficiency issued to petitioner for her 2019 tax year, the petition was not filed within the time prescribed in the Internal Revenue Code, and (2) respondent has not issued to petitioner any notice of determination concerning collection action, nor has respondent made any other determination, concerning petitioner's 2021 and 2022 tax years sufficient to confer jurisdiction upon this Court. On January 24, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that, on August 22, 2022, respondent sent by certified mail to petitioner's last known address a notice of deficiency with respect to petitioner's 2019 tax year. That notice of deficiency states that the last day to file a Tax Court petition was November 21, 2022. As discussed above, the Court received the petition on November 23, 2022. The envelope containing the petition bears a U.S. Postal Service postmark dated November 22, 2023.
The Tax Court is a court of limited jurisdiction. We may exercise jurisdiction only to the extent expressly provided by statute. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). In addition, jurisdiction must be proven affirmatively, and a taxpayer invoking our jurisdiction bears the burden of proving that we have jurisdiction over the taxpayer's case. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
In a case seeking redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice of Procedure; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (I.R.C.) section 6213(a) provides that the petition must be filed with the Court within 90 days after a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., it will be considered timely filed. See I.R.C. sec. 7502(a)(1). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
Similarly, in a case seeking review of certain IRS collection activity, the Court's jurisdiction depends on the issuance of a valid notice of determination under Internal Revenue Code (I.R.C.) section 6320 or 6330 (after petitioner has requested and received a collection due process hearing) and the filing by the taxpayer of a petition within of that IRS determination. Smith v. Commissioner, 124 T.C. 36, 38 (2005); I.R.C. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure.
In her objection to respondent's motion to dismiss, petitioner states that she believed the petition was timely mailed and requests that the Court hear her case. However, if the Court lacks jurisdiction, we cannot reach the merits of a case.
The record establishes that, as to the notice of deficiency issued for petitioner's 2019 tax year, the petition was not timely filed. While the Court is sympathetic to petitioner's situation, we have no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). Furthermore, petitioner has not produced or otherwise demonstrated that respondent issued any notice of determination concerning collection action, or made any other determination, as to her 2021 and 2022 tax years that would permit petitioner to invoke the jurisdiction of this Corut. Accordingly, we are obliged to dismiss this case for lack of jurisdiction.
However, although petitioner may not prosecute this case in this Court, petitioner may continue to pursue administrative resolution of her 2019 tax liability directly with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amounts, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring a suit for refund in the appropriate Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
In view of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.