Opinion
35710-21S
06-07-2023
HAYES ALEXANDER THORNTON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction. Petitioner opposes the Motion. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
On July 6, 2021, respondent sent by certified mail a Notice of Deficiency for the taxable year 2018 to petitioner at his last known address. The Notice is addressed to petitioner at an address within the United States and informs him that the last date to file a petition with this Court is October 4, 2021.
On November 29, 2021, the Court received and filed the Petition to commence this case. The Petition arrived at the Court in an envelope bearing a U.S. Postal Service postmark date of November 19, 2021.
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 §§ 6212 and 6213; Rule 13(a) and (c); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 6 n.4 (Nov. 29, 2022) (collecting cases). Generally, a notice of deficiency will be deemed valid for this purpose if it is sent to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition must be filed within 90 days (or 150 days if the notice is addressed to a person outside the United States) of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Hallmark Research Collective, slip op. at 42; see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See § 7502; Treas. Reg. § 301.7502-1.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., 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.
Because the Notice of Deficiency was mailed to petitioner's last known address on July 6, 2021, the last date to file a petition with this Court as to that Notice was October 4, 2021, as stated in the Notice. As noted above, the Petition in this case was filed on November 29, 2021. And, although a petition that is delivered to the Court after the expiration of time provided by section 6213(a) shall be deemed timely if it bears a timely postmark, see § 7502, the Petition in this case was delivered to the Court in an envelope bearing a postmark of November 19, 2021. Consequently, the Petition was not filed (or deemed filed) within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
As noted above, petitioner opposes respondent's Motion to Dismiss. However, petitioner's arguments in his Objection are directed to the underlying merits of this case, that is, whether respondent's determinations in the Notice of Deficiency are correct. Those merits are not before the Court at this time; rather, the only issue currently before the Court is whether we have jurisdiction to hear this case. For the reasons discussed above, we do not.
We are sympathetic to petitioner's circumstances. But we have no authority to extend the time for filing a petition for redetermination of a deficiency "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972). Nevertheless, while petitioner cannot pursue his case in this Court, he may continue to pursue administrative resolution of the 2018 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).
In consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 2, 2022, is granted, and this case is dismissed for lack of jurisdiction.