Opinion
17811-23
11-07-2024
TAMMY N. REVELEY & BILL M. REVELEY, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
Currently pending before the Court is respondent's First Amended Motion to Dismiss for Lack of Jurisdiction (motion to dismiss), filed July 8, 2024, on the grounds that the Petition was not filed within the time prescribed in the Internal Revenue Code. On August 2, 2024, petitioners filed an Objection to First Amended Motion to Dismiss for Lack of Jurisdiction.
The record in this case reflects that a notice of deficiency for petitioners' 2021 tax year was sent by certified mail to petitioners' last known address (the same address petitioners used when filing the Petition) on May 8, 2023. The notice of deficiency stated that the last day to file a petition with the Tax Court was August 7, 2023. The Petition to commence this case was received and filed November 6, 2023. The Petition was received in an envelope postmarked October 24, 2023.
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 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. Andrews v. Commissioner, 563 F.2d 365 (8th Cir. 1977); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130, n.4 (2022) (collecting cases); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); 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, 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, or 150 days if the notice is addressed to a person outside the United States, 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. §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. § 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).
The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. § 6212(b). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Treas. Reg. § 301.6212-2(a); King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89 T.C. 806, 808 (1987). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
Based on the notice of deficiency's mailing date of May 8, 2023, the 90-day period to timely file a Tax Court petition expired on August 7, 2023. Accordingly, the Petition--which was filed November 6, 2023, and mailed to the Tax Court October 24, 2023--was not timely filed or mailed.
In their objection to the motion to dismiss, petitioners assert only that they do not owe any deficiency in tax for their 2021 tax year and request that the Court hear the merits of their case. However, if this Court lacks jurisdiction, we cannot reach the merits of a case.
Here, the record establishes that the Petition was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, 159 T.C. at 167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners may not prosecute this case in this Court, petitioners may be able to pursue an administrative resolution of the 2021 tax liability directly with the Internal Revenue Service (IRS). Also, another remedy potentially available to petitioners, 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).
Upon due consideration of the foregoing, it is
ORDERED that respondent's First Amended Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction because the Petition was not filed within the period prescribed by Internal Revenue Code section 6213(a).