Opinion
13650-24S
11-15-2024
GARY J. TAUBAR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On October 17, 2024, respondent filed in the above-docketed matter a Motion To Dismiss for Lack of Jurisdiction, and a first supplement thereto followed on October 24, 2024. Dismissal was sought on the ground that the petition was not filed within the time prescribed by section 6015(e) or 7502 of the Internal Revenue Code (I.R.C.). Respondent attached to the supplement copies of a notice of final determination concerning relief from joint and several liability under section 6015(e), I.R.C., and the corresponding certified mail list (U.S. Postal Service (USPS) Form 3877), as evidence of the fact that such notice of determination for the taxable year 2017, dated May 14, 2024, had been sent to petitioner by certified mail on May 14, 2024.
The petition herein was filed with the Court on August 20, 2024, which date is 98 days after the date of the notice of final determination for tax year 2017 mailed to petitioner. The petition had been received by the Court in an envelope that bears a USPS postmark dated August 13, 2024, which date is 91 days after the date of mailing of the notice. An address in Endicott, New York, was provided as the mailing address.
This Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case such as this one, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer, and section 6015(e)(1), I.R.C., specifically provides that the petition, to be timely, must be filed within 90 days of the notice of determination. "The 90-day filing deadline of section 6015(e)(1)(A) is jurisdictional." Frutiger v. Commissioner, No. 31153-21, 162 T.C., slip op. at 12 (Mar. 11, 2024). Furthermore, the Court has no authority to extend this 90-day period. See id.; Pollack v. Commissioner, 132 T.C. 21, 32 (2009) ("[S]ection 6015(e)(1)(A)'s 90-day limit is jurisdictional and therefore doesn't allow for equitable tolling . . . ."). However, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
A petition is ordinarily "filed" when it is received by the Tax Court in Washington, D.C. See, e.g., Leventis v. Commissioner, 49 T.C. 353, 354 (1968). Although the Court may sit at any place within the United States, its principal office, its mailing address, and its Clerk's office are in the District of Columbia. Sec. 7445, I.R.C.; Rule 10, Tax Court Rules of Practice and Procedure. And a document that is electronically filed with the Court is filed when it is received by the Court as determined in reference to where the Court is located. Nutt v. Commissioner, 160 T.C. 470 (2023).
In the present case, the time for filing a petition with this Court expired on August 12, 2024. However, the petition was not filed within that period.
Petitioner was served with a copy of respondent's motion to dismiss and, on November 13, 2024, filed an objection, with attachments. Therein, petitioner did not directly deny the jurisdictional allegations set forth in respondent's motion and did not allege that petitioner had filed with the Tax Court before the statutory deadline. Instead, petitioner principally took the position that the three Federal holidays between May 14 and August 12, 2024, should not be counted in the 90 days required to respond. Petitioner also seemed to suggest that the date he received the notice, rather than the date it was mailed, should be pertinent. Additionally, petitioner highlighted efforts to address the tax matters with the IRS through communications with a tax attorney who then contacted the agency, as well as efforts made in the context of attempting to obtain documentation and assistance through his divorce proceedings.
Insofar as petitioner's comments regarding date counting might suggest advocacy for a flexible approach, so proceeding would be contrary to relevant law. Section 7503, I.R.C., addresses computation time of for purposes of acts prescribed in the tax code. That section provides specifically that when the last day for performing any act falls on a Saturday, Sunday, or legal holiday, the act will be considered timely if it is performed on the next succeeding day which is not a Saturday, Sunday, or legal holiday. Such an exception would be unnecessary if the general rule for calculation did not strictly count and include all calendar days. In addition, the import of section 7503, I.R.C., is corroborated by jurisprudence relating particularly to the filing of Tax Court petitions and rejecting "business days" arguments. See McGuire v. Commissioner, 52 T.C. 468, 470 (1969); Guerrier v. Commissioner, T.C. Memo. 2002-3. August 12, 2024, was not a Saturday, Sunday, or holiday.
Similarly pertinent are the rules related to the mailing of notices. In the analogous context of a deficiency proceeding, a notice of deficiency is sufficient if it is mailed to the taxpayer's last known address. See sec. 6212(b)(1), I.R.C. In King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987), the Court of Appeals stated that by "establishing a presumption that the taxpayer's 'last known address' is the address on his/her most recent return, we provide a clear starting point for the IRS's determination. A notice of deficiency mailed to that address will be sufficient, unless the taxpayer subsequently communicates 'clear and concise' notice of a change of address." See also sec. 301.6212-2(a), Proced. & Admin. Regs. In such circumstances, the 90-day period prescribed in section 6213(a), I.R.C., is computed by reference to the date the notice of deficiency "is mailed" by certified mail, not the date of attempted delivery, availability, or actual receipt, except in the narrow circumstances where the notice itself sets forth a later, and thus controlling, last date to petition the Tax Court.
Respondent bears the burden of proving proper mailing of the notice of deficiency by competent and persuasive evidence. Coleman v. Commissioner, 94 T.C. 82, 90 (1990). Such burden requires respondent to introduce evidence showing that the notice was properly delivered to the USPS for mailing. Cataldo v. Commissioner, 60 T.C. 522, 524 (1973), aff'd, 499 F.2d 550 (2d Cir. 1974). In particular, as this Court has stated: "A Form 3877 reflecting Postal Service receipt represents direct documentary evidence of the date and the fact of mailing." Coleman v. Commissioner, 94 T.C. at 90. If the existence of the notice of deficiency is undisputed, a properly completed Form 3877 is alone sufficient to establish proper mailing, but even a Form 3877 with defects is probative and may be combined with additional evidence to meet respondent's burden. See O'Rourke v. United States, 587 F.3d 537, 540-542 (2d Cir. 2009); Coleman v. Commissioner, 94 T.C. at 91-92; Portwine v. Commissioner, T.C. Memo. 2015-29, aff'd, 668 Fed.Appx. 838 (10th Cir. 2016).
Here, petitioner has never alleged that the notice of final determination was not sent to his statutory last known address.
Additionally, to the extent that the record indicates that after issuance of the notice of final determination, petitioner endeavored to communicate with and to submit information to, and to seek information from, the IRS, the law is well settled that once a statutory notice has been issued, further administrative contact or consideration does not alter or suspend the running of the 90-day period. Even confusing IRS responses or correspondence during the administrative process cannot override the clearly stated deadline in the statutory notice of final determination. Such confusion is not uncommon given that the IRS frequently treats as separate processes or proceedings what taxpayers view as a single dispute. Taxpayers not infrequently have also conflated this Court with an IRS unit, but the IRS is a completely separate and independent entity from the Tax Court. In a similar vein, audit reconsideration is unrelated to, and has no bearing on, rights to petition the Tax Court.
Although section 7502, I.R.C., allows a timely mailed petition to be treated as timely filed, that section mandates that the envelope bearing the petition be "properly addressed to the agency, officer, or office with which the document is required to be filed.". Sec. 7502(a)(2)(B), I.R.C. A petition seeking review of a final determination must be filed with this Court and not the IRS. Sec. 6015(e), I.R.C. Hence, the mailing (or faxing) of a petition, correspondence, return, or other documentation to the IRS is not sufficient to confer jurisdiction on this Court. See Axe v. Commissioner, 58 T.C. 256 (1972). The statute is clear, and this Court must follow it. See Estate of Cerrito v. Commissioner, 73 T.C. 896 (1980). The Court would also note that a notice of final determination issued to a taxpayer states on its face to petition the Tax Court (not the IRS) and provides expressly in multiple places that the filing period extends 90 days from the date of the letter. The first pages of the notice are likewise explicit in providing that petitions must be filed with the U.S. Tax Court and in giving the Court's address as "400 Second Street, NW, Washington, DC 20217". With these definitive rules regarding the inefficacy of written correspondence to the IRS, it is clear that efforts to contact the IRS by phone or fax can offer no greater protection.
Thus, in the present case, the time for filing a petition with this Court expired on August 12, 2024. Because the petition was not filed within that period, respondent's motion is well-made and must be granted.
The premises considered, 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 because the petition was not filed within the period prescribed by section 6015(e).