Opinion
16891-21
07-05-2023
JENNIFER WAGNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Tamara W. Ashford, Judge.
On August 2, 2021, the Court received and filed a Petition from petitioner. Therein petitioner asserts that the taxable year in question is 2013 and claims to seek redetermination of a deficiency set forth in a "Notice of Deficiency (letter number 531) dated December 11, 2020." Her Petition also includes a reference to a "letter 2644C" that she received from the Internal Revenue Service (IRS) on July 14, 2021. No IRS notice of any kind was attached to the Petition.
On May 13, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that petitioner's Petition was not filed within the time prescribed by sections 6213(a) or 7502, and no other determination that would confer jurisdiction upon the Court has been issued to petitioner for 2013. According to respondent, the IRS issued a notice of deficiency to petitioner (and her former husband Thomas Wagner) with respect to 2013 on October 13, 2016, but due to the COVID-19 pandemic it has been difficult to obtain that deficiency notice and the associated certified mailing list from the IRS' paper administrative files. In support of his motion respondent attached the following documents that he obtained electronically: (1) an undated copy of the letter accompanying the October 13, 2016, notice of deficiency that was addressed to petitioner and Mr. Wagner at a post office box in Groton, Connecticut; (2) an undated copy of the letter accompanying the October 13, 2016, notice of deficiency that was addressed to petitioner and Mr. Wagner at an address on Buddington Road, also in Groton; (3) a certified mailing list, i.e., PS Form 3877, date-stamped October 13, 2016, showing certified mailings of statutory notices of deficiency to petitioner at the aforementioned post office box address and a certified mailing of a statutory notice of deficiency to Mr. Wagner at the aforementioned Buddington Road address; (4) the "FINDS" transcript showing that petitioner's last known address as of October 13, 2016, was the post office box address and then it was changed to the Buddington Road address on October 20, 2016; (5) the "IMFOLT" transcript for petitioner and Mr. Wagner's joint tax liability for 2013; (6) the "TXMODA" transcript for petitioner's separate fraud penalty liability for 2013; and (7) information from the IRS' Servicewide Electronic Research Program explaining the codes shown on the IMFOLT and TXMODA transcripts.
Unless otherwise indicated, statutory references are to the Internal Revenue Code (Code), Title 26 U.S.C., in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Petitioner and Mr. Wagner divorced in 2014, and in 2019 Mr. Wagner passed away.
By Order served on the parties on May 16, 2022, the Court ordered petitioner to file a written response to respondent's motion no later than May 31, 2022. On June 1, 2022, petitioner filed a Motion for Voluntary Dismissal Without Prejudice. Therein petitioner did not address the assertions in respondent's motion; instead, citing Internal Revenue Manual 35.8.1.3.1 (Aug. 15, 2019) (we note that petitioner incorrectly referred to this as part of the Code) and Fed R. Civ. P. 41(a)(2), petitioner requested that the Court dismiss this case without prejudice because "this Court does not have to make a decision regarding the deficiency and the Commissioner will not suffer any prejudice."
By Order served on the parties on June 3, 2022, the Court ordered petitioner to file a supplement to her motion on or before July 5, 2022, addressing (1) the import of this Court's opinion in Estate of Ming v. Commissioner, 62 T.C. 519 (1974), on this case and (2) the timeliness of her Petition and how it affects the Court's jurisdiction over this case. On July 22, 2022, rather than address the issues raised in the Court's June 3, 2022, Order, petitioner filed a Motion to Withdraw Motion for Voluntary Dismissal Without Prejudice. By Order served on the parties on July 26, 2022, the Court granted petitioner's withdrawal motion.
In Estate of Ming, we held that in the light of section 7459(d), a taxpayer who petitions the Court under section 6213 for redetermination of a deficiency may not withdraw his petition to avoid the entry of a decision. Estate of Ming, 62 T.C. at 522-23.
By Order served on the parties on December 1, 2022, because respondent had yet to apprise the Court whether he had received the IRS' paper administrative files and to supplement his motion to dismiss with a copy of the October 13, 2016, notice of deficiency, the Court ordered respondent to supplement his motion on or before December 30, 2022, attaching thereto a copy of the notice of deficiency. Respondent received an extension of time in which to file his supplement, and on February 15, 2023, respondent filed a First Supplement to Motion to Dismiss for Lack of Jurisdiction, attaching the following documents: (1) undated complete copies of the notices of deficiency addressed to petitioner and Mr. Wagner for 2013 at the same previously-referenced post office box and Buddington Road addresses; (2) the same PS Form 3877 and FINDS transcript that were previously attached to respondent's motion; (3) a copy of Form 4549, Income Tax Examination Changes, dated July 3, 2018, reflecting the results of audit reconsideration with respect to petitioner and Mr. Wagner for 2013; and (4) a copy of the IRS' 2016 "Posting Cycles" calendar.
On March 2, 2023, respondent filed a Second Supplement to Motion to Dismiss for Lack of Jurisdiction, attaching the following documents: (1) complete copies of the notices of deficiency for 2013 addressed to petitioner and Mr. Wagner at the same previously referenced post office box and Buddington Road addresses-each deficiency notice date-stamped October 13, 2016, and indicating that the last day to Petition the Tax Court is January 11, 2017; (2) a copy of an October 13, 2016, letter sent to petitioner's authorized representative enclosing the October 13, 2016, notice of deficiency addressed to the post office box address; (3) the same PS 3877 that was previously attached to respondent's motion and his first supplement; and (4) a one-page document from PACER showing that on February 28, 2007, petitioner and Mr. Wagner had filed a voluntary petition for relief with the United States Bankruptcy Court for the District of Connecticut under Chapter 7 of the Bankruptcy Code, Title 11, and that in this bankruptcy they had received a discharge on June 5, 2007, and the case was closed on June 19, 2007, more than nine years before the October 13, 2016, notices of deficiency were issued to petitioner and Mr. Wagner.
This Court, like all federal courts, is a court of limited jurisdiction. § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). We may exercise jurisdiction only to the extent provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a deficiency case, the jurisdiction of the Court depends on (1) the issuance by the IRS of a notice of deficiency and (2) the filing of a petition 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). §§ 6213(a), 7502; Mulvania v. Commissioner, 81 T.C. 65, 67 (1983); Rule 13(a) and (c); see also Hallmark Rsch. Collective v. Commissioner, No. 21284-21, 159 T.C. slip op. at 12-13 (Nov. 29, 2022).
As respondent's motion and supplements make plain, this case is based upon properly-issued October 13, 2016, notices of deficiency and those deficiency notices indicate that the last day to file a petition with the Tax Court was January 11, 2017. Petitioner's Petition was received and filed by the Court on August 2, 2021, well past the 90-day deadline. Accordingly, the Petition is not timely filed and the Court is without jurisdiction in this case. Upon due consideration, it is hereby
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed May 13, 2022, and as supplemented on February 15 and March 2, 2023, is granted, and this case is dismissed for lack of jurisdiction on the ground that the Petition was not timely filed.