Opinion
14158-20
02-03-2022
GERALD VITO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Cary Douglas Pugh, Judge
Background
On December 8, 2020, petitioner filed a petition with the Court. Attached to the petition was a notice of deficiency dated July 15, 2020. In his petition, petitioner alleged that "at the time the notice was sent I was not present in the USA."
On October 9, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that the petition was not filed within the time prescribed by I.R.C. section 6213(a) or 7502. Respondent attached a copy of PS Form 3877, bearing a post mark date stamp of July 16, 2020, showing that the notice of deficiency was sent to petitioner's last known address by certified mail on that date.
We set respondent's motion for a hearing at the Court's November 29, 2021, Miami, Florida remote trial session and ordered petitioner to file an objection or other response to respondent's motion. Petitioner has not done so.
On November 16, 2021, respondent filed First Supplement to Motion to Dismiss for Lack of Jurisdiction. Attached were records from the United States Customs and Border Protection - United States Department of Homeland Security. These records showed that petitioner arrived at Miami International Airport in Miami, Florida on January 4, 2020. And on November 25, 2020, he departed the United States from John F. Kennedy International Airport in New York. No other entries indicate that petitioner arrived in or departed from the United States in 2020.
This case was called from the calendar of the Court's Miami, Florida trial session, conducted remotely on November 29, 2021, for hearing on respondent's Motion to Dismiss for Lack of Jurisdiction. There was no appearance by or on behalf of the petitioner. Counsel for respondent appeared and was heard.
On January 13, 2022, respondent filed a status report attaching a copy of an email from petitioner dated November 28, 2021. Attached to that email were copies of petitioner's (1) Delta Air Lines account activity statement, (2) foreign passports, and (3) a permanent resident card. The entries in petitioner's passport showed that petitioner arrived in the United States on January 4, 2020, and departed on November 25, 2020. No other entries indicated his absence from the country in 2020.
Discussion
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). Where this Court's jurisdiction in a case is properly challenged, the jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction (here, petitioner). Romann v. Commissioner, 111 T.C. 273, 280 (1998); Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960).
This Court's jurisdiction depends, in part, on the taxpayer timely filing a petition. Rule 13(c), Tax Court Rules of Practice and Procedure; Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. & Normac International v. Commissioner, 90 T.C. 142, 147 (1988). 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 the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). We have held that the 150-day extended deadline may apply not only in cases involving foreign residents but also in cases involving United States residents temporarily absent from the country. See Smith v. Commissioner, 140 T.C. 48 (2013).
In the present case, the notice of deficiency was sent to petitioner's last known address by certified mail on July 16, 2020, as shown by the postmark date stamped on PS Form 3877. The 90-day period for timely filing a petition expired on October 13, 2020, and the petition was filed on December 8, 2020, which is 145 days after the mailing of the notice of deficiency.
Nothing in the record establishes petitioner's absence from the United States during the crucial period between when the notice was issued (July 15, 2020) and when the petition would be due under the normal 90-day period (October 13, 2020), that would trigger the 150-day extending deadline.
Upon due consideration, therefore, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed October 9, 2021, as supplemented November 16, 2021, is granted, and this case is dismissed for lack of jurisdiction.