Opinion
1645-23S
05-09-2023
NATHAN J. SALSI & DANIELLE C. SALSI, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed April 6, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On April 30, 2023, petitioners filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that petitioners electronically filed the petition to commence this case on February 19, 2023, indicating therein that they seek to challenge a notice of deficiency issued for their 2020 tax year. Petitioners attached to the petition a copy of the notice of deficiency at issue. That notice of deficiency, dated October 24, 2022, was sent by certified mail to petitioners' last known address on October 20, 2022. The notice of deficiency stated that the last day to file a Tax Court petition was January 23, 2023. Petitioners also attached to the petition a Letter 555T, dated December 1, 2022 (a date after the notice of deficiency was issued), sent to petitioners to inform them that, based upon information they submitted, the IRS was reducing the tax increase previously proposed in the notice of deficiency for petitioners' 2020 tax year. The Letter 555T stated that the last day to file a Tax Court petition was February 23, 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. Rule 13(c), Tax Court Rules of Practice of Procedure; Hallmark Rsch. 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, 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). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. 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).
The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 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. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88T.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, 89T.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).
The record establishes that the petition was not timely filed. Based upon the date of the notice of deficiency, the 90-day period for timely filing a Tax Court petition expired on January 23, 2023. Petitioners electronically filed the petition on February 19, 2023, which was 118 days after the date of the notice of deficiency.
In their objection to the motion to dismiss, petitioners assert that this case should not be dismissed because they relied upon the date given in the Letter 555T--February 23, 2023--as the last day to file their petition. Unfortunately for petitioners, however, it is well settled that where the Commissioner's representatives provide erroneous advice based upon a mistaken interpretation of the law, courts and the Commissioner are not bound by the agent's statements and must follow the applicable statutes, regulations, and caselaw. See Dixon v. United States, 381 U.S. 68, 72-73 (1965); Auto. Club of Mich. v. Commissioner, 353 U.S. 180, 183 (1957); Neri v. Commissioner, 54 T.C. 767, 771-772 (1970).
Here, the petition was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. While we are sympathetic to petitioners' circumstances, we have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); 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 are free to continue to pursue an administrative resolution of their 2020 tax liability directly with the 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 Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.