Opinion
23980-22S
06-22-2023
ALAN PAUL SALOMON & MYRNA D. SALOMON, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction. Petitioners oppose the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
On May 16, 2022, respondent sent to petitioners, by certified mail to their last known address, a Notice of Deficiency for the taxable year 2019. The Notice was addressed to petitioners at a mailing address within the United States and informed them that the last date to file a petition with this Court was August 15, 2022.
On October 31, 2022, the Court received and filed the Petition to commence this case. The Petition, which seeks redetermination of the aforementioned deficiency, arrived at the Court in an envelope bearing a U.S. Postal Service postmark date of October 14, 2022.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6 n.4 (collecting cases). Generally, a notice of deficiency will be deemed valid for this purpose if it is sent to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition must be filed within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Research Collective, slip op. at 42; see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1.
Because the Notice of Deficiency was mailed to petitioners' last known address on May 16, 2022, the last date to file a petition with this Court as to that Notice was August 15, 2022, as stated in the Notice. As noted above, the Petition in this case was filed on October 31, 2022. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see § 7502, the Petition in this case was delivered to the Court in an envelope bearing a postmark of October 14, 2022. Consequently, the Petition was not filed (or deemed filed) within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
The 90th day after the date of mailing was Sunday, August 14, 2022; however, section 6213(a) provides that Saturdays, Sundays, and legal holidays in the District of Columbia are not counted as the last day of the 90-day period.
Petitioners oppose respondent's Motion to Dismiss on the ground that the Internal Revenue Service (IRS) did not respond to petitioners' August 4, 2022, request for first time penalty abatement until September 16, 2022, that is, after the expiration of the 90-day period. Petitioners also note certain IRS relief provisions relating to the COVID-19 pandemic.
The COVID-19 pandemic did lead to the extension of certain tax-related filing deadlines, including the deadline for filing a petition with this Court; however, the circumstances here fall outside the relief afforded. The Court's decision in Guralnik v. Commissioner, 146 T.C. 320 (2016), together with Notice 2020-23, 2020-18 I.R.B. 742 (Apr. 27, 2020), extended to July 15, 2020, the deadline for filing petitions with due dates between March 19, 2020, and July 15, 2020. But, as noted above, the due date for filing a petition in this case was August 15, 2022. Thus, the relevant authorities had no effect on the due date in this case, and the Petition was untimely, even after accounting for the extensions granted due to the COVID-19 pandemic.
We are sympathetic to petitioners' circumstances. But we have no authority to extend the time for filing a petition with this Court for redetermination of a deficiency "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). Nevertheless, while petitioners cannot pursue their case in this Court, they may continue to pursue administrative resolution of the 2019 tax liability with the IRS. Another remedy potentially available to petitioners, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioners may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 15, 2022, is granted, and this case is dismissed for lack of jurisdiction.