Opinion
30983-21
05-18-2023
DEAN E. SMOTHERS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
This case for the redetermination of deficiencies is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction. Petitioner opposes the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated May 18, 2021, respondent determined deficiencies and accuracy-related penalties in petitioner's federal income tax for the taxable years 2017 and 2018. On September 13, 2021, the Court received and filed the Petition to commence this case, in which petitioner seeks review of that Notice.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). Where, as here, this Court's jurisdiction is duly challenged, 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); Romann v. Commissioner, 111 T.C. 273, 280 (1998); 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.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6 n.4 (collecting cases). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition must be filed within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Research Collective, slip op. at 42; see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1.
In the Motion to Dismiss, respondent asserts that the Notice of Deficiency in this case was sent by certified mail on May 18, 2021, to petitioner's last known address. A PS Form 3877 attached thereto establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on May 18, 2021, to the address in Bowie, Maryland listed in the Notice. That address is the same address that petitioner listed in the Petition, and he has not disputed that the Notice was mailed to his last known address. We thus take it as established for purposes of the Motion to Dismiss that the Notice was so mailed.
A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-191 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The PS Form 3877 attached to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
Because the Notice of Deficiency was mailed to petitioner's last known address on May 18, 2021, the last date to file a petition with this Court as to that Notice was August 16, 2021, as stated in the Notice. The Petition in this case was received and filed by the Court on September 13, 2021. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see § 7502, the envelope in which the Petition in this case was mailed to the Court bears a private postal meter stamp of September 3, 2021. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
In his Response to the Motion to Dismiss, petitioner claims that the Petition in this case "was filed timely" because "[i]t was originally filed on Augusts [sic] 12th" and then "sent again September 3rd after a call to the Tax Court to confirm receipt." There is no indication in the Court's records of this alleged earlier filing. Petitioner further claims that he has attached to his Response "copies of both postage receipts for both packages." However, our review of these receipts reveals a considerable discrepancy. The receipt that appears to correspond to the September 3, 2021, mailing (i.e., the apparent mailing of the Petition that was received and filed by the Court on September 13, 2021, to commence this case) indicates that the mailing was sent to a Washington, D.C. mailing address within the zip code 20217. This is consistent with the Tax Court mailing address (400 Second Street, NW, Washington, DC 20217). However, the receipt that petitioner claims to correspond to his alleged earlier mailing on August 12, 2021, indicates that the mailing was sent to a Washington, D.C. mailing address within the zip code 20020. Moreover, there is a tracking number listed on this second receipt, but petitioner has not provided any tracking information for the alleged earlier mailing. "[W]hen a party has relevant evidence within his control which he fails to produce, that failure gives rise to an inference that the evidence is unfavorable to him." International Union (UAW) v. NLRB, 459 F.2d 1329, 1336 (D.C. Cir. 1972); see also Callahan v. Schultz, 783 F.2d 1543, 1545 (11th Cir. 1986); McKay v. Commissioner, 89 T.C. 1063, 1069 (1987), aff'd, 886 F.2d 1237 (9th Cir. 1989); Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165 (1946), aff'd, 162 F.2d 513 (10th Cir. 1947). We draw such an inference here.
In view of the foregoing, petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270. That being so, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 28, 2021, is granted, and this case is dismissed for lack of jurisdiction.