Opinion
22585-21S
03-29-2023
JUAN CRUZ TAVERA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy Special Trial Judge
Petitioner Juan Cruz Tavera filed his petition commencing this case on June 25, 2021, contesting a Notice of Deficiency (notice of deficiency) and Notice of Final Determination for [Full/Partial] Disallowance of Interest Abatement Claim (or Failure of IRS to Make Final Determination Within 180 Days After Claim for Abatement) (notice of final determination), allegedly issued on September 25, 2020, February 3, 2021, and June 4, 2021, for his 2020 and 2021 tax years. Mr. Tavera did not attach a copy of any such notice to his petition. The petition was mailed to the Court in a UPS Ground envelope dated June 21, 2021. In the Answer filed October 28, 2021, the Commissioner alleged that a notice of deficiency was issued on March 22, 2021, for 2019, but denied that a notice of final determination was issued to Mr. Tavera.
On December 13, 2022, the Court issued an Order for the Commissioner to file a response and attach thereto a complete copy of the notice of deficiency on which this case is based. The Commissioner filed a response to this Order on January 11, 2023, stating that a notice of deficiency was issued to Mr. Tavera on March 22, 2021, but neither a copy of the notice of deficiency nor the certified mail list could be located.
On January 25, 2023, the Court issued an Order to Show Cause ordering the Commissioner to file a response and attach thereto a copy of a complete copy of the notice of deficiency for 2019, USPS Form 3877 or other proof of mailing, and for the parties to show cause in writing why the Court should not dismiss the case for lack of jurisdiction on the ground the petition was not timely filed and no notice of final determination was issued to Mr. Tavera. On February 13, 2023, the Commissioner filed a response stating that Mr. Tavera did not make a claim for interest abatement and no notice of final determination was issued to Mr. Tavera, and that he cannot locate a copy of the notice of deficiency or a copy of the certified mailing list showing a notice of deficiency was mailed to Mr. Tavera. Nonetheless, the Commissioner
Entered and Served 03/29/23 concluded his response by stating that this case should be dismissed for lack of jurisdiction.
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). The jurisdiction of this Court must be affirmatively shown by the party seeking to invoke our 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); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
I. Notice of Deficiency
In a case seeking the redetermination of a deficiency, the jurisdiction of this Court depends on the issuance of a valid notice of deficiency and a timely filed petition. Rule 13(a), (c); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). For a notice of deficiency to be valid, it must be mailed to a petitioner's last known address by certified or registered mail. See § 6212(a); see also Yusko v. Commissioner, 89 T.C. 806, 810 (1987). Further, a petition must be filed with the Court within 90 days after a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). See § 6213(a); Brown v. Commissioner, 78 T.C. at 220.
Unless otherwise indicated, all Rule references are to the Tax Court Rules of Practice and Procedure.
The Commissioner has the burden of establishing both the existence of a notice of deficiency as well as the date of mailing. Pietanza v. Commissioner, 92 T.C. 729 (1989), aff'd without published opinion, 935 F.2d 1282 (3d Cir. 1991); Galluzzo v. Commissioner, T.C. Memo. 2013-136. In this case, neither party has produced a copy of the notice of deficiency at issue. Furthermore, the Commissioner failed to produce USPS Form 3877 to confirm that a notice of deficiency was sent to Mr. Tavera. We conclude that no valid notice was issued to Mr. Tavera, and the Court lacks jurisdiction to redetermine a proposed deficiency for 2019.
II. Notice of Final Determination for [Full/Partial] Disallowance of Interest Abatement Claim (or Failure of IRS to Make Final Determination Within 180 Days After Claim for Abatement)
In a case seeking review of the Commissioner's failure to abate interest, this Court's jurisdiction depends on a petitioner filing with the IRS a Form 843, Claim for Refund and Request for Abatement prior to the petitioner timely filing a petition with this Court. § 6404(h); Rule 280(b). The Court's jurisdiction under section 6404(h) is predicated on the issuance of a determination by the IRS or the failure by the IRS to issue such a determination within 180 days of filing a claim for interest abatement.
Mr. Tavera did not attach to his petition, and the Commissioner has no record of receiving any Forms 843 conferring jurisdiction to this Court to determine any interest abatements. Consequently, we lack jurisdiction to review Mr. Tavera's request for relief.
Upon due consideration and for cause, it is
ORDERED that the Court's Order to Show Cause, issued January 25, 2023, is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction on the grounds that no valid notice of deficiency or notice of final determination was issued to Mr. Tavera for tax year 2019.