Opinion
13535-22
11-13-2023
LINDA C. SATKOWSKI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
TRAVIS A. GREAVES JUDGE
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed July 25, 2023. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the grounds that the petition was filed more than 90 days after the notice of deficiency was sent to petitioner and that the Secretary of the Department of the Treasury (Secretary) has not certified petitioner to the Department of State as an individual owing seriously delinquent federal tax debt under section 7345.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Background
Respondent determined an income tax deficiency of $16,567, an addition to tax under section 6651(a)(1) for failure to timely file a federal tax return of $3,728, an addition to tax under section 6651(a)(2) for failure to pay of $3,148, an addition to tax under section 6654 for failure to pay estimated taxes of $537, and interest. On February 28, 2022, respondent mailed to petitioner a notice of deficiency. In response to the notice, petitioner filed a petition to commence this case. Petitioner resided in Virginia when the petition was filed.
All dollar amounts are rounded to the nearest dollar.
The Court received the petition on June 1, 2022, in an envelope bearing a postmark of June 1, 2022 from UPS. Petitioner checked the boxes on her petition indicating that she sought review of a notice of deficiency and a notice of certification of your seriously delinquent federal tax debt to the Department of State (notice of certification). Petitioner attached to the petition the notice of deficiency and a Notice CP2566 that informed petitioner that respondent had not received her tax return for tax year 2018.
CP2566 is not a notice that confers jurisdiction on this Court to redetermine a deficiency or review a notice of certification. See Mulvania v. Commissioner, 81 T.C. 65, 67 (1983); Meduty v. Commissioner, No. 32817-21P, 160 T.C., slip op. at 7-8 (May 23, 2023).
On July 25, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that petitioner failed to timely file the petition as it relates to the notice of deficiency. Additionally, respondent moved to dismiss petitioner's claim relating to the notice of certification because he had not issued a notice of certification nor had the Secretary made a certification to the State Department. We ordered petitioner to file an objection, if any, to respondent's motion, and petitioner failed to do so.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Where this Court's jurisdiction is duly challenged, as here, 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); 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; Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Petitioner invoked our jurisdiction and therefore bears the burden of establishing jurisdiction.
In a case seeking redetermination of a deficiency, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See § 6212; Sanders v. Commissioner, No. 15143-22, 160 T.C., slip op. at 8 (Nov. 2, 2023); Mulvania, 81 T.C. at 67. Section 6213(a) provides: "Within 90 days . . . after the notice of deficiency authorized in section 6212 is mailed . . ., the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency." We have held that the 90-day period prescribed by section 6213(a) sets forth a jurisdictional requirement. See Sanders, No. 15143-22, 160 T.C., slip op. at 8. In a case seeking review of a notice of certification under section 7345, our jurisdiction depends on the Secretary making a certification to the Department of State that a taxpayer owes a seriously delinquent tax debt. See Meduty, No. 32817-21P, 160 T.C., slip op. at 7-8 (holding that a taxpayer may still petition the Court for a review of a certification even if the Secretary improperly fails to issue a notice of certification).
The notice of deficiency upon which this case is based was mailed to petitioner on February 28, 2022; accordingly, the last day to petition this Court was May 31, 2022. The envelope containing the petition bears a postmark indicating that it was delivered to UPS on June 1, 2022. Accordingly, the petition was not timely filed, and this Court lacks jurisdiction with respect to petitioner's deficiency case. See Sanders, No. 15143-22, 160 T.C., slip op. at 8.
Section 7502 provides that a petition will be treated as timely filed if the taxpayer timely mails the petition to the Court via the United States Postal Service or certain private delivery services designated by the Secretary. See § 7502(a), (f); Notice 2016-30, 2016-18 I.R.B. 676, 676 (listing the designated private delivery services under section 7502). Respondent argues that petitioner mailed her petition via UPS Ground, which is not a designated private delivery service, and therefore, section 7502 does not apply to treat her petition as timely. Regardless of the delivery service used, section 7502 is not applicable because petitioner did not timely mail her petition. The back of the envelope containing the petition was postmarked June 1, 2022, which is after the 90-day deadline to petition this Court.
As for petitioner's notice of certification claim, she failed to attach such notice to her petition. See Rule 351(b)(7) (requiring a taxpayer to attach to her petition a copy of the notice of certification). Respondent asserts that he conducted a diligent search of his records in an attempt to determine whether a notice of certification was issued to petitioner, and that, based on that search, he has determined that no such notice has been issued. Moreover, respondent further asserts that the Secretary has not certified petitioner as an individual owing seriously delinquent tax debt to the Department of State. Because the Secretary has not made a certification, we lack jurisdiction regarding petitioner's notice of certification claim. See Meduty, No. 32817-21P, 160 T.C., slip op. at 7-8.
Petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270. While we appreciate that petitioner does not believe she owes the amount stated on the notice of deficiency after consideration of her business expenses, we have no authority to extend the period for timely filing a petition. See Axe v. Commissioner, 58 T.C. 256, 259 (1972) ("We have no authority to extend the period provided by law for filing a petition with the Tax Court whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period."). Accordingly, we must grant respondent's motion and dismiss this case for lack of jurisdiction.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed July 25, 2023, is granted, and this case is dismissed for lack of jurisdiction.