Opinion
25113-22S
07-20-2023
VINCENT W. TONG & CINDY F. TONG, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
On January 18, 2023, respondent filed in the above-docketed case a Motion To Dismiss for Lack of Jurisdiction, on the ground that the petition was not filed within the time prescribed by section 6213(a) or 7502 of the Internal Revenue Code (I.R.C.). Respondent attached to the motion a copy of a certified mail list (U.S. Postal Service (USPS) Form 3877), as evidence of the fact that a notice of deficiency for the taxable year 2019, dated August 8, 2022, had been sent to petitioners by certified mail on August 8, 2022.
The petition herein was filed with the Court November 10, 2022, which date is 94 days after the date of the notice of deficiency for tax year 2019 mailed to petitioners. The petition had been received by the Court in an envelope that bears a private postal meter mark dated November 8, 2022, which date is 92 days after the date of the notice. The petition had also been sent by certified mail, and USPS tracking information for the certified number is consistent in reflecting November 8, 2022, as the first entry, labeled "Arrived at USPS facility".
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 seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Hallmark Research Collective v. Commissioner, 159 T.C. No. 6 (Nov. 29, 2022); Brown v. Commissioner, 78 T.C. 215, 220 (1982). In this regard, section 6213(a), I.R.C., provides that the petition must be filed with the Court within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The Court has no authority to extend this 90-day (or 150-day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of a Tax Court petition, a provision which becomes relevant where that date is later than the date computed with reference to the mailing date. Sec. 6213(a), I.R.C. Likewise, 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. I.R.C. § 7445; Rule 10. 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, No. 15959-22, 160 T.C. (May 2, 2023).
In the present case, the time for filing a petition with this Court expired on November 7, 2022. However, the petition was not filed within that period.
Petitioners were served with a copy of respondent's motion to dismiss and, on June 12, 2023, filed an objection, with attachments. Therein, petitioners did not directly deny the jurisdictional allegations set forth in respondent's motion and did not allege that petitioners had filed with the Tax Court before the statutory deadline. Rather, the submission opened with the potentially concessionary remark: "We sent in a Petition Kit on November 11, 2022, explaining why we disagreed with the IRS determination in this case." The balance of the objection was then devoted in its entirety to the substance of the case and petitioners' stance that deduction of mortgage interest had been improperly disallowed. Attachments included financial and tax forms and schedules pertaining to the mortgage interest, as well as letters from the Internal Revenue Service (IRS) dated April 5, 2022, and September 30, 2022, indicative of efforts on petitioners' part to resolve the 2019 tax matters administratively with the agency.
Thus, given the foregoing, the record indicates before and after issuance of the notice of deficiency, petitioners endeavored to communicate with and to submit information to, and to seek information from, the IRS. The law is well settled, however, that once a notice of deficiency 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 deficiency. 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 redetermination of a deficiency must be filed with this Court and not the IRS. Sec. 6213(a), 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. Axe v. Commissioner, 58 T.C. 256 (1972). The statute is clear, and this Court must follow it. Estate of Cerrito v. Commissioner, 73 T.C. 896 (1980). The Court would also note that a notice of deficiency issued to a taxpayer states on its face the last day 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.
Furthermore, it is equally well settled that where the Commissioner's representatives provide erroneous advice based upon a mistaken interpretation of the law, courts and the Commissioner are not bound by the agent's statements and must follow the applicable statutes, regulations, and caselaw. See, e.g., Dixon v. United States, 381 U.S. 68, 72-73 (1965); Auto. Club of Mich. v. Commissioner, 353 U.S. 180, 183 (1957); Neri v. Commissioner, 54 T.C. 767, 771-772 (1970). Consequently, the same result must obtain regardless of whether the jurisdictional question is later raised by the Commissioner or by the Court sua sponte. Moreover, despite its superficial appeal, it has long been the rule that the doctrine of equitable estoppel is unavailable in these circumstances. As this Court has stated, an "estoppel argument must fail for the simple reason that the doctrine of estoppel cannot create jurisdiction where none otherwise exists." Energy Res., Ltd. v, Commissioner, 91 T.C. 913, 917 (1988). Thus the apparently erroneous information that petitioners received from IRS personnel in the September 30, 2022, letter is highly regrettable, but it cannot alter the legal outcome.
Hence, while the Court is sympathetic to petitioners' situation and understands the unintentional character of the inadvertence here, as well as the challenges of the circumstances faced and the good faith efforts made, the fundamental nature of the filing deadline precludes the case from going forward. As a Court of limited jurisdiction, the Court is unable to offer any remedy or assistance when a petition is filed late. Rather, the Court is barred from considering in any way petitioners' case or the correctness of petitioners' claims. Unfortunately, governing law recognizes no reasonable cause or other applicable exception to the statutory deadline, and the allegation that the petition was sent a day late remains unrebutted.
The Court has no authority to extend that period provided by law for filing a petition "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). Accordingly, since petitioners have failed to establish that the petition was mailed to or filed with this Court within the required 90-day period, this case must be dismissed for lack of jurisdiction. The Court would, however, encourage petitioners to continue working administratively through the IRS, which, being entirely separate from the Tax Court, may be able to offer alternative avenues for relief, not dependent on the existence of a Tax Court case, such as audit reconsideration or a refund action.
The premises considered, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.