Opinion
36932-21
01-11-2023
HEATHER MCARDLE RYAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On March 1, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed with respect to tax year 2018. Respondent attached to the motion a copy of the certified mail list as evidence of the fact that the notice of deficiency was sent to petitioner by certified mail on June 1, 2021.
The petition was filed on December 13, 2021, which date is 195 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. The petition was received by the Court in an envelope bearing a United States Postal Service postmark of December 3, 2021, which date is 185 days after the date the notice of deficiency for tax year 2018 was mailed to petitioner. Attached to the petition is a copy of the deficiency notice issued for 2018, which states that the last day for filing a timely Tax Court petition as to that notice would expire on August 30, 2021.
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(a), Tax Court Rules of Practices 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). This Court's jurisdiction to redetermine a deficiency also depends on a timely filed 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); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. & Normac International v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, 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 the 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, 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 be properly addressed to the Tax Court in Washington, D.C., and 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). The Court has no authority to extend this 90 day (or 150 day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with this Court expired on August 30, 2021. However, the petition was not filed within that 90 day period.
On March 9, 2022, petitioner filed a Response to Motion to Dismiss for Lack of Jurisdiction, in which she states that she received an IRS notice number CP504, dated December 20, 2021, which is a notice of intent to seize your property and states that petitioner has the right to request an appeal under the Collection Appeals Program before collection takes place. On September 14, 2022, petitioner filed a First Amended Response to Motion to Dismiss for Lack of Jurisdiction, in which petitioner states that she does not object to the granting of the Motion to Dismiss but denies that the dismissal is pursuant to lack of jurisdiction for reason of late filing of the petition. In the amended response, petitioner also states that she seeks to dispute the notice of deficiency and notice of intent to seize property.
In a case seeking review of a determination under I.R.C. section 6320 or 6330, the jurisdiction of the Court depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330. Secs. 6320(c), 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492, 498 (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 within the 30-day period specified in section 6320(a) or 6330(a), and calculated with reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 or Final Notice - Notice of Intent to Levy and Notice of Your Right to a Hearing.
The notice of intent to seize property is not a notice of determination under I.R.C. section 6320 or 6330 or a Final Notice - Notice of Intent to Levy and Notice of Your Right to a Hearing.
While the Court is sympathetic to petitioner's situation, governing law recognizes no exceptions for good cause or similar grounds that would allow her to proceed in this judicial forum. Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256 (1972). Accordingly, since the petition was not filed within the required 90 day period, this case must be dismissed for lack of jurisdiction.
The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. In addition, if financially feasible, petitioner may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.