Opinion
4752-22S
03-07-2023
SYLVESTER SMITH & SHIRLEY SMITH, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Diana L. Leyden Special Trial Judge
This case is calendared for trial at the April 11, 2023, San Antonio, Texas, Trial Session of the Court. The petition in this case was filed with the Court on February 22, 2022. Petitioners seek review of a notice of deficiency dated November 15, 2021, for tax year 2019, and attached a copy of the notice of deficiency. On May 2, 2022, respondent filed an Answer in this case.
On February 8, 2023, the Court issued an Order to Show Cause (OSC) directing respondent to file a response with the postmarked U.S. Postal Service Form 3877, or other proof of mailing, showing the November 15, 2021, deficiency notice for 2019, upon which this case is based, was sent by certified or registered mail to petitioners at their last known address on or about November 15, 2021. The OSC also directed both parties, on or before March 8, 2023, to show cause, in writing, why the Court should not dismiss this case for lack of jurisdiction on the ground the petition was not timely filed.
Respondent filed a response on March 3, 2023, and attached the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioners' last known address, by certified mail on November 25, 2019. Respondent agrees in his response that this case should be dismissed for lack of jurisdiction on the ground that the petition was not timely filed. Respondent states petitioners do not object to the dismissal of their case.
The record reflects that respondent mailed a notice of deficiency for 2019, on November 15, 2021. The 90-day period for filing a timely petition with the Court expired on February 14, 2022. The Petition, filed February 22, 2022, arrived at the Court in a Certified Mail envelope bearing no postmark. Review of USPS Tracking indicates the envelope arrived at USPS Regional Facility Distribution Center on February 15, 2022.
This Court is a court of limited jurisdiction. It may exercise its jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). 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). A petition is timely if filed within 90 days of the mailing of the notice of deficiency. I.R.C. § 6213(a). If a petition is not timely filed, the Court does not have jurisdiction to redetermine the IRS' deficiency determination. Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (November 29, 2022).
Respondent presented the postmarked U.S. Postal Service Form 3877 showing the notice of deficiency was mailed to petitioners' last known address by certified mail on November 15, 2021. Petitioners have not presented any evidence or argued the notice of deficiency, dated November 15, 2021, was not valid. Therefore, the Court finds that respondent issued a valid notice of deficiency to petitioners.
Section 6213(a) provides that the petition must be filed with the Court within 90 days 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 period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). In this case, the time for filing a petition with this Court expired February 14, 2022. However, the petition was not filed within that period.
Under certain circumstances, a timely mailed petition may be treated as though it were timely filed. Sec. 7502(a); sec. 301.7502-1, Proced. & Admin. Regs. In this case, the petition arrived at the Court in a Certified Mail envelope bearing no postmark. Review of USPS Tracking indicates the envelope arrived at USPS Regional Facility Distribution Center on February 15, 2022. The Court concludes that petitioners did not timely file a petition in this case and therefore, the Court lacks jurisdiction to redetermine the deficiency for tax year 2019. Upon due consideration, it is
ORDERED that the Court's Order to Show Cause, served February 8, 2023, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the ground that the petition was not timely filed as to tax year 2019.