Opinion
13354-22
04-24-2023
SANDRA ESTHER STEINBERG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
Pending before the Court in this deficiency case is respondent's Motion to Dismiss for Lack of Jurisdiction, filed July 27, 2022. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. On December 19, 2022, petitioner filed an Objection thereto. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
By Notice of Deficiency dated January 10, 2022, respondent determined a deficiency in, and an addition to, petitioner's Federal income tax for the taxable year 2018. The Petition in this case 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.
All statutory references are to the Internal Revenue Code 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(a); 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 generally must be filed within 90 days 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.
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of the mailing of the notice. See § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). The Notice of Deficiency in this case is addressed to petitioner at an address within the United States, and there is no indication in the record that petitioner was outside the United States at or about the time when the Notice was mailed.
In the Motion to Dismiss, respondent asserts that the Notice of Deficiency in this case was sent by certified mail on January 10, 2022, to petitioner's last known address. A PS Form 3877 attached to the Motion to Dismiss establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on January 10, 2022, to the address in Santa Rosa Beach, Florida, listed in the Notice. Petitioner has not disputed that the Notice was mailed to her 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.
In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on January 10, 2022, the last date to file a petition with this Court as to that Notice was April 11, 2022, as stated in the Notice. The Petition in this case was received and filed by the Court on May 31, 2022. 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 postmark of May 27, 2022. 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.
The 90th day after the date of mailing was Sunday, April 10, 2022; however, section 6213(a) provides that Sunday is not counted as the last day of the 90-day period.
As noted, petitioner has filed an Objection to respondent's Motion to Dismiss. Therein, petitioner appears to claim that she previously sent a petition to the Court in March 2022:
I sent the required information, 5564 and supporting documents from Freeport Florida on March 20, 2022. I sent the documents Express mail on 3/17/2022 to make sure they were delivered on time and had plenty of time to spare ($27.90 in postage) [sic] I checked the tracking to make sure it was delivered and it was in fact delivered on 3/20/2022 to a firm sheet. Meaning that all of the mail to the Tax Court with tracking was on a firm sheet and delivered at once. This was the address that is on the letter in which I mailed the documents.US Tax Court, 400 Second Street N.W. Washington DC 20217.
Petitioner has not provided the tracking information for the earlier mailing that she purports to have sent in March 2022, and the Court's records do not indicate receipt of any such mailing. Petitioner states in her Objection that, in the course of moving to Kansas City, Missouri in May 2022, she "somehow misplaced the tracking for proof that it was in fact delivered on time." In any event, as noted supra p. 1, petitioner bears the burden to "establish affirmatively all facts giving rise to our jurisdiction," David Dung Le, M.D., Inc., 114 T.C. at 270, and she has failed to carry that burden here.
We are sympathetic to petitioner's circumstances. But Congress has limited our deficiency jurisdiction to only those cases in which a petition is timely filed, and we do not have authority to extend the 90-day period set forth in section 6213(a) by equitable tolling. Hallmark Research Collective, slip op. at 42; see also Axe v. Commissioner, 58 T.C. 256, 259 (1972) ("We have no authority to extend the period provided by law for filing a petition with the Tax Court whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period."). Nevertheless, while petitioner cannot pursue her case in this Court, she may continue to pursue administrative resolution of the 2018 tax liability with the Internal Revenue Service (IRS). Another remedy potentially available to petitioner, if feasible, is to pay the determined amount and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
In consideration of the foregoing, it is
ORDERED that respondent's above-referenced Motion is granted, and this case is dismissed for lack of jurisdiction.