Opinion
14646-23S
03-01-2024
BENJAMIN D. SMOKER & JESSICA G. SMOKER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On October 20, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the Petition was not filed within the time prescribed in the Internal Revenue Code. On November 15, 2023, petitioners filed a Response to Motion to Dismiss for Lack of Jurisdiction.
On May 1, 2023, respondent sent a notice of deficiency to petitioners' last known address. The notice provided that the last day to file a petition in this Court was July 31, 2023. On September 11, 2023, the Court received and filed the Petition to commence this case.
Like all federal courts, the Tax Court is a court of limited jurisdiction. 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 deficiency case, this Court's jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). Rule 13(a), (c), Tax Court Rules of Practice and Procedure; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit).
The record reflects that on May 1, 2023, the notice of deficiency challenged by petitioners in this case was sent by certified mail to petitioners' last known address. The 90th day from the mailing of the notice was thus Sunday, July 30, 2023; however, Internal Revenue Code (I.R.C.) 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. The last date to file a petition with this Court as to the notice of deficiency was therefore July 31, 2023. See I.R.C. § 6213(a).
As noted above, the Petition to commence this case was received and filed by the Court on September 11, 2023. Although under certain circumstances, a timely mailed petition may be treated as though it were timely filed, see I.R.C. § 7502; Treas. Reg. § 301.7502-1, the certified mail tracking number on the envelope in which the Petition was mailed shows, when entered on the United States Postal Service (USPS) website, that the USPS gained possession of the item on September 8, 2023.
In their Response to Motion to Dismiss for Lack of Jurisdiction, petitioners claim that respondent informed them of a filing deadline later than that provided on the notice of deficiency. They state, "IRS motion to dismiss is based on a document from May 1, 2023. IRS mailed us well after this date (August 15, 2023), stating that we had until a much later date to file appeal . . . . IRS stating that we did not respond by July 31 is NOT the most recent instruction from the IRS. IRS sent a letter later than this stating that we had much longer to respond. We responded within that timeframe."
The May 1, 2023, mailing petitioners reference is the notice of deficiency that they were issued, which provided July 31, 2023, as the last date for filing. It appears that the August 15, 2023, mailing is the IRS Letter 2626C petitioners attached to the Petition. This mailing was issued from the IRS Automated Underreporter Unit in response to a letter from petitioners' CPA dated June 6, 2023, which had requested first time penalty abatement for petitioners' 2020 tax year.
In relevant part, the Letter 2626C states, "If you don't agree with our changes, you can petition the United States Tax Court, but you must do so timely. We previously sent you a Notice of Deficiency dated May 01, 2023, advising you how to petition and the deadline for filing such petition. The Tax Court can't consider late petitions." In a separate paragraph, the letter states, "Send your signed consent or explanation by Sep. 09, 2023 . . . . If we don't hear from you by that date, we'll continue to process the proposed changes to your tax return based on the information in our last notice. If you have a balance due, we'll continue to charge interest and applicable penalties until you pay the balance due in full."
The Letter 2626C does not set a new, later date for petitioners to file a petition in this Court. Rather, it reminds petitioners that the notice of deficiency that they were issued sets a deadline for filing a Tax Court petition, and, separately, gives petitioners a deadline to either consent to the immediate assessment and collection of the increase in tax and penalties shown on the notice of deficiency, or to send additional explanation to the IRS. While petitioners evidently misinterpreted the Letter 2626C, they were previously made aware of the deadline for filing a petition when they were issued the notice of deficiency, and they chose not to file within the 90-day period set forth in that notice.
The record in this case establishes that the Petition was not timely filed and, accordingly, the Court is obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing. See Hallmark Rsch. Collective, 159 T.C. at 167; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners cannot prosecute this case in this Court, petitioners may still 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 because the Petition was not filed within the period prescribed by I.R.C. section 6213(a).