Opinion
7479-23
08-16-2023
GEORGINA BORUNDA TORRES & JUAN VALLEZ, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
Currently pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction (motion to dismiss), filed June 26, 2023, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On July 26, 2023, petitioners filed a Motion to Dismiss for Lack of Jurisdiction, which in substance appears to be their response to respondent's motion to dismiss.
The record in this case reflects that a notice of deficiency for petitioners' 2019 tax year was sent by certified mail to petitioners' last known address on July 19, 2021. The notice of deficiency stated that the last day to file a petition with the Tax Court was October 18, 2021. The petition to commence this case was received by the Court and filed on April 24, 2023. The envelope containing the petition bears a postmark dated April 19, 2023.
Like all federal courts, the Tax 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 addition, jurisdiction must be proven affirmatively, and a taxpayer invoking our jurisdiction bears the burden of proving that we have jurisdiction over the taxpayer's case. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
In a case seeking 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 of Procedure; Foster v. Commissioner, 445 F.2d 799 (10th Cir. 1971); Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, and as relevant here, Internal Revenue Code (I.R.C.) section 6213(a) 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 a valid notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). If a petition is timely mailed and properly addressed to the Tax Court in Washington, D.C., it will be considered timely filed. See I.R.C. sec. 7502(a)(1). In order for the timely mailing/timely filing provision to apply, the envelope containing the petition must bear a postmark with a date that is on or before the last date for timely filing a petition. See I.R.C. sec. 7502(a)(2). If the postmark is missing or illegible, a taxpayer may present extrinsic evidence to prove the date of mailing. See Anderson v. U.S., 966 F.2d 487 (9th Cir. 1992); Mason v. Commissioner, 68 T.C. 354 (1977).
The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff 'g 88T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89T.C. 806, 808 (1987). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
Based upon the notice of deficiency's mailing date of July 19, 2021, the 90-day period to timely file a Tax Court petition expired on October 18, 2023. As discussed above, the Court received and filed the petition on April 24, 2023. In addition, the envelope in which the petition was received bears a postmark dated April 19, 2023. Both the filing and mailing dates are well after the last day petitioners could timely file a petition with this Court. Furthermore, petitioners acknowledged in their petition that it was being filed after the deadline for timely filing.
In their response to respondent's motion to dismiss, petitioners do not directly address respondent's jurisdictional allegations. Rather, petitioners focus on explaining the merits of their claims in this case. However, if the Court does not have jurisdiction, we cannot reach the merits of a case.
Here, the record establishes that the petition in this case was not timely filed, and the Court is therefore obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing. Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioners may not prosecute this case in this Court, petitioners are still free to pursue an administrative resolution of their 2019 tax liability directly with the IRS. Also, another remedy potentially available to petitioners, if feasible, is to pay the determined amounts, file a claim for refund with the IRS, and then (if the claim is denied or not acted on for six months), bring a suit for refund in the appropriate Federal 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 of the foregoing, it is
ORDERED that petitioner's Motion to Dismiss for Lack of Jurisdiction, filed July 26, 2023, is recharacterized as a Response to Motion to Dismiss for Lack of Jurisdiction. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.