Opinion
6185-22
03-24-2023
KEVIN ALLEN SPENCE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On March 9, 2022, petitioner filed the petition in this case, indicating that he seeks review of a notice of deficiency issued for his 2021 tax year. Petitioner, however, attached to his petition a copy of a notice of deficiency issued for his 2019 tax year.
On May 17, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction. On January 10, 2023, respondent filed a First Supplement to Motion to Dismiss for Lack of Jurisdiction. In respondent's motion to dismiss, as supplemented, he asserts that (1) as to a notice of deficiency issued for petitioner's 2019 tax year, the petition was not filed within the time prescribed in the Internal Revenue Code, and (2) respondent has not issued any notice of deficiency, or made any other determination, concerning petitioner's 2021 tax year that would permit petitioner to invoke the jurisdiction of this Court.
By Order issued January 11, 2023, the Court directed petitioner to file an objection, if any, to respondent's motion to dismiss, as supplemented. In response, on February 6, 2023, petitioner filed a First Amendment to Petition. Therein, petitioner clarifies that he is challenging the notice of deficiency issued for his 2019 tax year and reiterates his claims concerning the merits of his case. Petitioner does not address respondent's jurisdictional allegations.
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 Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). The shipping date recorded or marked by any designated private delivery service will be treated as a postmark for purposes of the timely mailing/timely filing provision. See I.R.C. sec. 7502(f). Similarly, in a case seeking review of certain IRS collection activity, the Court's jurisdiction depends on the issuance of a valid notice of determination (after the taxpayer has properly requested a collection due process hearing) under Internal Revenue Code (I.R.C.) section 6320 or 6330 and the filing by the taxpayer of a petition concerning that IRS determination. Smith v. Commissioner, 124 T.C. 36, 38 (2005); I.R.C. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure.
Other types of IRS notices which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, are a notice of determination concerning relief from joint and several liability (or failure of IRS to make determination within 6 months after election or request for relief), a notice of final determination for disallowance of interest abatement claim (or failure of IRS to make final determination within 180 days after claim for abatement), a notice of determination of worker classification, a notice of determination under section 7623 concerning whistleblower action, and a notice of certification of a seriously delinquent Federal tax debt to the Department of State. No pertinent claims involving I.R.C. sections 6015, 6404(h), 7436, 7623, or 7345, respectively, appear to be involved in this case.
As to the notice of deficiency for petitioner's 2019 tax year, the record in this case establishes that the petition was not timely filed. Respondent sent the notice of deficiency for 2019 by certified mail to petitioner's last known address on November 22, 2021. Based on that mailing date, the last date petitioner could timely file a petition with respect to that notice of deficiency was February 22, 2022. The Court received and filed the petition on March 9, 2022. The petition was received in a FedEx envelope with a shipping label that bears a ship date of March 4, 2022. Both the filing and shipping dates are after petitioner could timely file his petition. Furthermore, petitioner has not produced or otherwise demonstrated that respondent issued any notice of deficiency, or that respondent made any other determination, sufficient to confer jurisdiction on this Court as to petitioner's 2021 tax year.
Accordingly, the Court is obliged to dismiss this case for lack of jurisdiction. However, although petitioner cannot prosecute this case in this Court, petitioner may continue to pursue an administrative resolution of the 2019 tax liability directly with the IRS.
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, as supplemented, is granted and this case is dismissed for lack of jurisdiction.