Opinion
9100-24S
09-13-2024
ADAM SALEH, 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 June 3, 2024, and taxable years 2020 and 2023 were indicated as the periods in contention. Although a Notice of Final Determination of Interest Abatement Claim (or Failure of IRS To Make Final Determination Within 180 Days After Claim for Abatement) was selected as the type of notice in dispute, 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 advising that the tax problems had been caused by an Uber commission and that an amended return had been sent to the IRS but had apparently not been accepted. The petition had been received by the Court in an envelope that bore no legible postmark, but it had been sent by certified mail, and United Postal Service (USPS) tracking information for the certified number reflected May 21, 2024, as the first entry, labeled "USPS in possession of item". The petition itself gave petitioner's address as 2954 Avenue Z, Apt 1, Brooklyn, NY 11235 (hereinafter the Z address), while the envelope displayed a return address of 2954 Avenue, Apt 1, Brooklyn, NY 11235 (hereinafter the Avenue address).
On July 22, 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, in particular no notice of final determination for full or partial disallowance of an interest abatement claim pursuant to section 6404(h), I.R.C., had been sent to petitioner for the tax years 2020 and 2023 to form the basis for a petition to this Court, as of the time the petition herein was filed. The motion further noted that petitioner had not submitted to the IRS a claim for interest abatement for 2020 or 2023, although amended returns for 2020 had been filed on March 8 and 27, 2024. Attached to the motion were copies of a notice of deficiency and the corresponding certified mail list (USPS Form 3877), as evidence of the fact that such notice of deficiency for the taxable year 2020, dated January 3, 2023, had been sent to petitioner by certified mail on January 3, 2023. Specifically, the notice had been sent to petitioner at the Avenue address. Also attached were copies of IRS account transcripts for petitioner's 2020 and 2023 years.
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. Hoffenberg v. Commissioner, 905 F.2d 665, 666 (2d Cir. 1990) (per curiam), aff'g T.C. Memo. 1989-676; 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, 160 T.C. 470 (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).
In a case based upon failure of the IRS to abate interest, jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Sec. 6404(h), I.R.C.; Rule 280(b), Tax Court Rules of Practice and Procedure. Again, 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. Jurisdiction under section 6404(h), I.R.C., also rests in part on issuance of a determination by the IRS under that section or the failure by the IRS to issue such a determination within 180 days of the filing of a claim for interest abatement. More specifically, section 6404(h), I.R.C., provides:
(1) In general.--The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the requirements referred to in section 7430(c)(4)(A)(ii) to determine whether the Secretary's failure to abate interest under this section was an abuse of discretion, and may order an abatement if such action is brought--
(A) at any time after the earlier of--
(i) the date of the mailing of the Secretary's final determination not to abate such interest, or
(ii) the date which is 180 days after the date of the filing with the Secretary (in such form as the Secretary may prescribe) of a claim for abatement under this section, and
(B) not later than the date with is 180 days after the date described in subparagraph (A)(i).
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 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, 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 August 19, 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 seemed to rely on contentions that his address had always been Z address, thus raising the question of whether the notice of deficiency was properly mailed to petitioner's last known address.
At that juncture, given the foregoing statements, the Court by Order served August 21, 2024, directed respondent to file a reply to petitioner's response. Respondent so filed a reply on September 11, 2024, focusing on the issue of proper mailing. In that document, respondent explained, and attached IRS transcripts and copies of petitioner's 2021 and 2022 tax returns supporting, that the Avenue address had been used on petitioner's 2021 tax return, which was filed on February 27, 2022, resulting in an update of IRS address records as of that time. Conversely, petitioner's 2022 return, which used the Z address and resulted in another update to IRS records, was not filed until February 27, 2023, after the notice of deficiency for 2020 had been issued on January 3, 2023.
On this record, then, the Court considers whether jurisdiction has been established with respect to either a deficiency or interest abatement proceeding for 2020 or 2023. As regards a deficiency case, and as previously noted, the initial petition herein was filed with the Court on June 3, 2024, which date is 517 days after the date of the notice of deficiency for 2020 issued to petitioner. USPS tracking information indicates that it was sent on May 21, 2024, which date is 504 days after the date of the notice. 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 April 3, 2023, deadline. Moreover, petitioner has made no claim that petitioner filed a timely Tax Court petition in response to this deficiency notice. Additionally, for completeness, there is no evidence or suggestion that a notice of deficiency was issued to petitioner for the 2023 year.
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 between the filing of the 2021 return on February 27, 2022, and the 2022 return on February 27, 2023, 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.
Additionally, to the extent that the record indicates that after issuance of the notice of deficiency, petitioner endeavored to communicate with and to submit information (such as the amended returns) to, and to seek information from, the IRS, the law is well settled that once a notice of deficiency has been issued, further administrative contact or consideration does not alter or suspend the running of the 90-day period. Even confusing IRS responses or correspondence during the administrative process cannot override the clearly stated deadline in the statutory notice of deficiency. Such confusion is not uncommon given that the IRS frequently treats as separate processes or proceedings what taxpayers view as a single dispute. Taxpayers not infrequently have also conflated this Court with an IRS unit, but the IRS is a completely separate and independent entity from the Tax Court. In a similar vein, audit reconsideration is unrelated to, and has no bearing on, rights to petition the Tax Court.
Although section 7502, I.R.C., allows a timely mailed petition to be treated as timely filed, that section mandates that the envelope bearing the petition be "properly addressed to the agency, officer, or office with which the document is required to be filed.". Sec. 7502(a)(2)(B), I.R.C. A petition seeking redetermination of a deficiency must be filed with this Court and not the IRS. Sec. 6213(a), I.R.C. Hence, the mailing (or faxing) of a petition, correspondence, return, or other documentation to the IRS is not sufficient to confer jurisdiction on this Court. Axe v. Commissioner, 58 T.C. 256 (1972). The statute is clear, and this Court must follow it. Estate of Cerrito v. Commissioner, 73 T.C. 896 (1980). The Court would also note that a notice of deficiency issued to a taxpayer states on its face the last day to petition the Tax Court (not the IRS) and provides expressly in multiple places that the filing period extends 90 days from the date of the letter. The first pages of the notice are likewise explicit in providing that petitions must be filed with the U.S. Tax Court and in giving the Court's address as "400 Second Street, NW, Washington, DC 20217". With these definitive rules regarding the inefficacy of written correspondence to the IRS, it is clear that efforts to contact the IRS by phone or fax can offer no greater protection.
As to an interest abatement case, respondent's jurisdictional allegations likewise stand unrebutted. Petitioner has at no time established that a notice of final determination of interest abatement claim for 2020 or 2023 under section 6404, I.R.C., was issued. Nor has he shown that a proper claim for interest abatement was filed. Moreover, even if the amended returns filed in March 2024 were to be interpreted as claims for abatement, the June 2024 petition herein was filed well before the 180-day rule could become applicable.
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 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, 6330, and/or 6404, 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.
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 Second 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 or claim by petitioner 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, such as audit reconsideration or a refund action.
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.