Opinion
33065-21
03-24-2023
JAMES WANGARI, 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 June 17, 2022, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On January 23, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction, asserting his belief that the petition was timely filed.
The record reflects that a notice of deficiency, dated July 6, 2021, for petitioner's 2018 tax year was mailed by certified mail to petitioner's last known address on July 1, 2021. The Court received and filed the petition to commence this case on October 18, 2021. The petition was received in an envelope with a U.S. Postal Service label indicating that the petition was mailed to the Court on October 12, 2021.
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).
In his objection to the motion to dismiss, petitioner asserts that the petition was filed within the statutory time period. Petitioner's statement, however, is not consistent with the record in this case. Based on the date of the notice of deficiency, July 6, 2021, the last date petitioner could timely file a petition was October 4, 2021. Additionally, the notice of deficiency stated that the last date to file a petition with the Tax Court was October 4, 2021. As discussed above, the Court received and filed the petition on October 18, 2021, and the envelope containing the petition indicates it was mailed to the Court on October 12, 2021. Both the filing and mailing dates are after the expiration of the 90-day time period for timely filing a petition. Petitioner also stresses that he continued to communicate with the IRS after he received the notice of deficiency. However, it is well settled that efforts to resolve a matter with the IRS administratively do not extend the period for timely filing a Tax Court petition.
The record establishes that the petition was not timely filed and, therefore, the Court is obliged to dismiss this case for lack of jurisdiction. While the Court is sympathetic to petitioner's 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 2018 tax liability directly with the IRS. Also, another remedy 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.