Opinion
20515-22
03-24-2023
ANH K. TRAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction, filed October 19, 2022, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On January 27, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction.
The record reflects that a notice of deficiency for petitioner's 2019 tax year was sent by certified mail to petitioner's last known address on March 21, 2022. The petition to commence this case was received by the Court and filed on September 9, 2022. The petition was received in an envelope bearing a postmark dated September 1, 2022.
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 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; Hallmark Research 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 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).
Based on the date the notice of deficiency was mailed to petitioner, the 90-day period to timely file a Tax Court petition expired on June 21, 2022. As discussed above, the petition was received by the Court and filed on September 9, 2022, and the envelope containing the petition bears a postmark dated September 1, 2022. As both the filing and mailing dates are after the last date petitioner could timely file his petition, the record establishes that the petition was not timely filed.
In petitioner's objection to the motion to dismiss, petitioner does not address respondent's jurisdictional allegations. Rather, petitioner focuses on explaining the merits of his claims. However, if this Court does not have jurisdiction, we cannot reach the merits of a case.
While the Court is sympathetic to petitioners' situation, we have no authority to extend the period for timely filing. Hallmark Research Collective v. Commissioner, supra; Axe v. Commissioner, 58 T.C. 256, 259 (1972); Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, although petitioner may not prosecute a case in this Court, petitioner may continue to pursue administrative resolution of the 2019 tax liability directly with the IRS. Also, another remedy potentially available to petitioner, 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 respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.