Opinion
18815-21S
11-05-2021
Aleksei Ilyich Shestakov Petitioner v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
On May 24, 2021, the Court received and filed the petition to commence this case. Petitioner indicates therein that he seeks review of a notice of deficiency issued for his 2017 tax year. Petitioner also filed a request for place of trial at San Francisco, California.
On September 30, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction on the ground that the petition was not filed within the time prescribed by the Internal Revenue Code. On October 18, 2021, petitioner filed a Letter Dated October 11, 2021, in opposition to respondent's motion.
The Tax 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; 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 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). 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). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must 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). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977). The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). 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 in this case reflects that a notice of deficiency for tax year 2017 was sent to petitioner's last known address by certified mail on November 9, 2020. Based on that mailing date, the last day to timely file a petition with the Court was February 8, 2021. As discussed above, the Court received and filed the petition on May 24, 2021. The petition was received in an envelope bearing a postmark date of May 18, 2021. Both the filing and mailing dates are after the last day petitioner could timely file a petition with respect to the notice of deficiency on which this case is based.
In his objection to the motion to dismiss, petitioner asserts that respondent's motion should not be granted. Petitioner states that he timely mailed his petition to an address that was provided on the Court's website for its San Francisco trial location, which petitioner requested as his place of trial. That petition, however, was returned to him on February 28, 2021, marked "insufficient address". Several months later, on May 18, 2021, petitioner mailed his petition to the Tax Court's address in Washington, D.C. Petitioner argues that he obtained the Court's San Francisco address (the address to which he first sent his petition) from the Court's website at www.ustaxcourt.gov/dpt_cities.html and that he should not be "penalized for incorrect information on the Court's site." The webpage from which petitioner obtained the Court's San Francisco address is a page which provides the addresses for all the locations nationwide at which the Court holds in-person trials. At the top of that webpage, the following is clearly stated: "Addresses are trial locations only. Always address mail to: United States Tax Court, 400 Second Street NW, Washington, DC 20217-0002."
The record establishes that the petition in this case was not timely filed. We have no authority to extend the period for timely filing the 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). However, although petitioner may not prosecute this case in the Tax Court, petitioner may continue to pursue administrative resolution of the 2017 tax liability directly with the IRS. Another remedy available to petitioner, if feasible, is to pay the determined amounts, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioner may file 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, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.