Opinion
1576-24
10-01-2024
WILLIAM A. THOMPSON, PETITIONER AND TRACI D. THOMPSON, INTERVENOR, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
In a notice of deficiency dated November 1, 2023, respondent determined a deficiency in petitioner's and his former spouse's federal income tax and an addition to tax pursuant to Internal Revenue Code (I.R.C.) section 6651(a)(2) for tax year 2020. In a notice of deficiency dated December 5, 2023, respondent determined deficiencies in petitioner's federal income tax and additions to tax pursuant to I.R.C. sections 6651(a) (1), 6651(a)(2), and 6654 for tax years 2018 and 2021.
On January 30, 2024, petitioner electronically filed the Petition in this case, indicating that he sought redetermination of deficiencies for tax years 2018, 2019, 2020, and 2021. Petitioner generally alleged in the Petition that he was entitled to relief from joint and several liability for 2020.
With respect to tax year 2019, petitioner alleged that a notice of deficiency for 2019 might have been issued, but that he had not received it. Petitioner further alleged, upon information and belief, that his former spouse had intercepted the 2019 notice of deficiency and had not provided him a copy. Petitioner's former spouse, Traci D. Thompson, filed a notice of intervention in this case on April 5, 2024.
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction as to Taxable Year 2019, to Strike Paragraphs 5.4 and 6.4, and Amend Paragraph 3 to read "2020, 2018, 2021," filed March 15, 2024. In the Motion, respondent acknowledges the issuance of a notice of deficiency to petitioner and intervenor for 2019. However, respondent contends that we lack jurisdiction as to that tax year because the Petition was not filed within the time prescribed by the Internal Revenue Code. On April 8, 2024, petitioner filed an Objection to respondent's Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction as to tax year 2019.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). 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.
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 I.R.C. §§ 6212 and 6213; Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082 (9th Cir. 2020); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022) (collecting cases); see also Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the Third Circuit). 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 I.R.C. § 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 I.R.C. § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Organic Cannabis Found., LLC v. Commissioner, 962 F.3d at 1092; Hallmark Rsch. Collective, 159 T.C. at 166-67.
An electronically filed petition is filed with this Court at the time it is received. Nutt v. Commissioner, 160 T.C. 470, 473 (2023) (holding that the timely mailing rule of I.R.C. section 7502(a) does not apply to electronically filed petitions). Under Rule 22(d), an electronically filed petition "will be considered timely filed if it is electronically filed at or before 11:59 p.m., eastern time, on the last day of the applicable period for filing." See Sanders v. Commissioner, 160 T.C. 563, 567 (2023).
In the Motion to Dismiss, respondent asserts that the notice of deficiency for 2019 was sent by certified mail on January 4, 2023, to petitioner's last known address. A certified mail list attached to the Motion to Dismiss establishes that respondent sent the 2019 notice of deficiency to petitioner by certified mail on January 4, 2023. Petitioner does not dispute those facts or otherwise question the proper mailing of the notice. We thus take it as established for purposes of the Motion to Dismiss that the notice was so mailed. On January 24, 2023, the notice of deficiency mailing was returned to respondent marked as "unclaimed" and "not deliverable as addressed, unable to forward."
Given that the notice of deficiency was mailed to petitioner's last known address on January 4, 2023, the last date to file a petition with this Court as to that notice was April 4, 2023, as stated therein. Petitioner electronically filed the Petition in this case on January 30, 2024. 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 as to tax year 2019.
In his Objection petitioner alleges that his former spouse, intervenor, concealed from him the issuance of the notice of deficiency for 2019 and caused it to be returned to the IRS as unclaimed. Petitioner argues that the Court should apply the doctrine of equitable tolling in this case, citing the decision of the U.S. Court of Appeals for the Third Circuit in Culp v. Commissioner, 75 F.4th 196, 205 (3d Cir. 2023).
As stated above, our jurisdiction in deficiency cases depends, in part, on a timely filed petition. See Hallmark Rsch. Collective, 159 T.C. at 166-67. Although the Third Circuit reached a different conclusion in Culp, 75 F.4th at 205 (holding that the deficiency deadline under I.R.C. section 6213(a) is nonjurisdictional), this case is presumably appealable to the U.S. Court of Appeals for the Ninth Circuit, see I.R.C. § 7482(b)(1). The Ninth Circuit has held that the deficiency deadline is jurisdictional. See Organic Cannabis Found., LLC v. Commissioner, 962 F.3d at 1092. Also, in Sanders, 161 T.C., slip op. at 7-8, this Court thoroughly examined the Culp decision and held that we will continue treating the deficiency deadline as jurisdictional in cases appealable outside the Third Circuit. Accordingly, petitioner is not entitled to equitable tolling in the instant case.
Congress has limited our jurisdiction in the deficiency context to those cases in which a petition is timely filed, and we have no authority to extend by equitable tolling the 90-day period set forth in I.R.C. section 6213(a). See Organic Cannabis Found., LLC v. Commissioner, 962 F.3d at 1092; Sanders, 161 T.C., slip op. at 7-8; Hallmark Rsch. Collective, 159 T.C. at 166-67; 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."). Although petitioner cannot pursue his case in this Court, he may continue to pursue administrative resolution of the 2019 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).
Upon due consideration and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction as to Taxable Year 2019, to Strike Paragraphs 5.4 and 6.4, and Amend Paragraph 3 to read "2020, 2018, 2021," is granted, in that this case is dismissed for lack of jurisdiction as to tax year 2019, and references in the Petition to 2019 are deemed stricken.
Petitioner and intervenor are reminded that this case will continue as to the notices of deficiency issued to petitioner for tax years 2018, 2020, and 2021.