Opinion
3114-21S
08-16-2021
Ronald S. Stevens & Jaclyn B. Stevens Petitioners v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge.
Pending before the Court is respondent's Motion To Dismiss for Lack of Jurisdiction, filed May 12, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the following grounds: (1) the petition was not filed within the time prescribed by the Internal Revenue Code with respect to the notice of deficiency issued to petitioners for the taxable year 2016; and (2) no notice of determination concerning collection action, or any other notice of determination, was issued to petitioners for the 2016 taxable year that would permit them to invoke the jurisdiction of this Court. On July 28, 2021, petitioners filed a Response in opposition to the motion. For the reasons set forth below, we will grant respondent's motion and dismiss this case for lack of jurisdiction.
Background
On January 22, 2021, petitioners filed the petition. Therein, petitioners marked the boxes indicating that they were disputing a notice of deficiency and a notice of determination concerning collection action. Petitioners did not attach thereto a copy of any notice of deficiency or notice of determination. Instead, petitioners attached a copy of a Notice of Intent To Seize (Levy) Your Property or Rights to Property, dated December 21, 2020, and issued to Mr. Stevens with respect to an unpaid Federal income tax liability for the 2016 taxable year. The petition asserts that petitioners are not liable for the aforementioned tax liability because it is premised upon the receipt of certain income items that petitioners "never received". The petition arrived at the Court via Fed Ex in an envelope bearing a postmark of January 21, 2021.
Petitioners' Federal income tax liability for the 2016 taxable year was previously the subject of a case in this Court at Docket No. 570-20S, arising from a notice of deficiency dated March 11, 2019, and issued to Mr. and Mrs. Stevens for such year. On the foregoing date the notice was sent by certified mail to Mr. and Mrs. Stevens at their last known address. The case was dismissed by Order and Order of Dismissal for Lack of Jurisdiction entered March 16, 2020, on the grounds that the petition was not filed within the time prescribed by the Internal Revenue Code with respect to the notice of deficiency, and no notice of determination concerning collection action, or any other notice of determination, had been issued to petitioners that would confer jurisdiction on this Court.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See sec. 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). Where this Court's jurisdiction is duly challenged, the 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, that party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc. v. Commissioner, 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, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See secs. 6212, 6213, and 6214; Rule 13(a) and (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). In the latter regard section 6213(a) provides that a taxpayer has 90 days (or 150 days if the notice of deficiency is addressed to a taxpayer outside the United States) after the mailing of the notice of deficiency (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day) to file a petition for redetermination with this Court. We have no authority to extend this 90-day (or 150-day) period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1093-1095 (9th Cir. 2020). However, under certain circumstances a timely mailed petition may be treated as though it were timely filed. See sec. 7502; sec. 301.7502-1, Proced. & Admin. Regs.
Similarly, in the collection due process context, our jurisdiction depends upon the issuance of a valid notice of determination and the timely filing of a petition. See secs. 6320(c), 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure; Orum v. Commissioner, 123 T.C. 1, 8 (2004), aff'd, 412 F.3d 819 (7th Cir. 2005); Offiler v. Commissioner, 114 T.C. 492, 498 (2000). It follows that when a valid notice of determination is not issued to the taxpayer, we are obliged to dismiss the case for lack of jurisdiction. See Offiler v. Commissioner, 114 T.C. at 498; Moorhous v. Commissioner, 116 T.C. 263, 270-271 (2001).
To the extent petitioners seek redetermination of the deficiency determined by respondent for the 2016 taxable year in the notice of deficiency dated March 11, 2019, the petition in this case is untimely. The last day on which to file a timely petition with respect to that notice was June 10, 2019. As noted supra p. 1, the petition in this case was filed on January 22, 2021. Although a petition that is delivered to the Court after the expiration of the period provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see sec. 7502, the envelope in which the petition was mailed to the Court bears a postmark of January 21, 2021. Consequently, the petition was not filed within the period prescribed by sections 6213(a) and 7502, and we lack jurisdiction over any challenge to the aforementioned notice of deficiency.
To the extent petitioners seek to challenge any collection activity by respondent for the 2016 taxable year, they have failed to demonstrate that respondent has issued a notice of determination for such year. As noted supra p. 1, petitioners attached to the petition a notice of intent to levy. However, that notice cannot serve as a basis on which to invoke this Court's jurisdiction. See Mathews v. Commissioner, T.C. Memo. 2021-85, 2021 WL 2850593, at *4 ("We cannot use the notice of intent to levy as a stand-in for the notice of determination necessary for our jurisdiction."). As petitioners have failed to introduce a notice of determination for the 2016 taxable year, and respondent reports that IRS records contain no evidence that any such notice of determination has been mailed to petitioners, there is no determination for this Court to review and no basis for our jurisdiction under section 6330(d) for such year.
Petitioners' Response is wholly directed to challenging the merits of the underlying tax liability for the 2016 taxable year and does not deny the jurisdictional allegations set forth in respondent's motion to dismiss. Moreover, after having been apprised of respondent's jurisdictional allegations, and given an opportunity to respond, petitioners have not provided any notice of deficiency, notice of determination concerning collection action, or any other notice of determination sufficient to confer jurisdiction on this Court. As petitioners have failed to "establish affirmatively all facts giving rise to our jurisdiction", David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. at 270, we must dismiss this case for lack of jurisdiction.
Upon due consideration of the foregoing, and for cause, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.