Opinion
2053-22
06-15-2023
SABINA RACHEL TERTULIEN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Travis A. Greaves Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 16, 2022. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the petition was filed 107 days after the notice of deficiency was sent to petitioner.
Background
Respondent determined an income tax deficiency of $8,829 and an accuracy-related penalty under section 6662(a) of $1,644 for petitioner's 2019 tax year. On October 4, 2021, respondent mailed to petitioner a notice of deficiency. In response to the notice, petitioner filed a petition to commence this case. The Court received the petition on January 19, 2022, in an envelope bearing a private postage-meter mark of January 4, 2022, from FP Mailing Solutions.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., (I.R.C. or Code) in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
FP Mailing Solutions is an authorized meter provider according to the United States Postal Service (USPS) Domestic Mail Manual. See USPS, Domestic Mail Manual, sec. 604.1.3 (available at https://pe.usps.com/text/dmm300/604.htm#ep1080496 ). However, this mark is a private postage-meter mark and not a USPS postmark. See Pearson v. Commissioner, 149 T.C. 424, 433 (2017).
On March 16, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that petitioner failed to timely file the petition. Thereafter, petitioner filed an Objection to the Motion to Dismiss for Lack of Jurisdiction. Petitioner asserted that the Court should treat her petition as timely filed because she delivered the petition to the mailing facility on the last day to timely petition this Court, but it was not postmarked until the following day. She did not include any exhibits demonstrating that the petition was timely filed.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Where this Court's jurisdiction is duly challenged, as here, 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); 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." See David Dung Le, M.D., Inc., 114 T.C. at 270; Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Petitioner invoked our jurisdiction and therefore bears the burden of establishing jurisdiction.
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 Rule 13(a) and (c); Mulvania v. Commissioner, 81 T.C. 65, 67 (1983); Naftel, 85 T.C. at 530; David Dung Le, M.D., Inc., 114 T.C. at 270. Section 6213(a) provides: "Within 90 days . . . after the notice of deficiency authorized in section 6212 is mailed . . ., the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency." We have held that the 90-day period prescribed by section 6213(a) sets forth a jurisdictional requirement. See Hallmark Research Collective v. Commissioner, 159 T.C. No. 6, at *42 (2022). Generally, if a petition arrives at the Court with a postmark indicating it was mailed prior to the expiration of the 90-day filing period, the petition is deemed to be timely filed. See § 7502(a); § 301.7502-1(c)(1)(iii)(B)(1), Proced. & Admin. Regs. (applying this rule to certain private postage-meter marks). If a USPS postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See § 301.7502-1(c)(1)(iii)(A), Proced. & Admin. Regs.; Shipley v. Commissioner, 572 F.2d 212, 214 (9th Cir. 1977), aff'g T.C. Memo. 1976-383. A taxpayer may not offer extrinsic evidence to contradict a legible private postage-meter mark. See Wiese v. Commissioner, 70 T.C. 712, 714 (1978).
The notice of deficiency upon which this case is based was mailed to petitioner on October 4, 2021; accordingly, the last day to file a petition with the Tax Court was January 3, 2022. The envelope containing the petition sent to the Court bears an FP Mailing Solutions private postage-meter date of January 4, 2022, and the petition was not received by the Court until January 19, 2022. Petitioner failed to provide any evidence of timely delivery to the mail carrier. Even if she had offered such evidence, petitioner cannot contradict the legible private postage-meter mark, dated January 4, 2022. It therefore appears the petition was not timely filed, in which case this Court is without jurisdiction.
Petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270. While we appreciate that petitioner does not believe she owes the amount stated in the notice, we have no authority to extend the period for timely filing a petition. See 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."). Accordingly, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed on March 16, 2022, is granted, and this case is dismissed for lack of jurisdiction.