Opinion
24622-22
05-11-2023
CHARLES A. WILSON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
On January 17, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not timely filed. Respondent attached to the motion a copy of the Certified Mail List as evidence of the fact that the notice of deficiency was sent to petitioner by certified mail on July 27, 2022.
The petition was electronically filed with the Court on November 24, 2022, which date is 120 days after the date the notice of deficiency for tax years 2019 and 2020 was mailed to petitioner. Attached to the motion to dismiss for lack of jurisdiction is a copy of the deficiency notice issued for 2019 and 2020, dated July 27, 2022, which states that the last day for filing a timely Tax Court petition as to that notice would expire 90 days from the date of the letter.
This Court is a court of limited jurisdiction. This Court's jurisdiction to redetermine a deficiency depends on the issuance of a valid notice of deficiency and a timely filed petition by the taxpayer. Rule 13(a) and (c); Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C. (Nov. 29, 2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. & Normac International v. Commissioner, 90 T.C. 142, 147 (1988). In this regard, 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). If a petition is timely mailed, 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 be properly addressed to the Tax Court in Washington, D.C., and 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). The Court has no authority to extend this 90 day (or 150 day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960).
In the present case, the time for filing a petition with the Court expired on October 25, 2023. However, the petition was not filed within that 90 day period.
On March 27, 2023, petitioner filed an Objection to respondent's motion to dismiss. In it, petitioner asserts that respondent delayed in responding to evidence that petitioner sent him. The United States Tax Court is separate from the IRS. Petitioner attached to his petition a letter from respondent, dated September 6, 2022, which clearly states that the last day to petition the Tax Court as to the notice of deficiency for tax years 2019 and 2020 is October 25, 2022.
The record reflects that the petition in this case was not timely filed. While the Court is sympathetic to petitioner's situation, the Court has no authority to extend the period for filing a timely petition. Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, we are obliged to dismiss this case for lack of jurisdiction. The fact that the Court is obliged to dismiss this case for lack of jurisdiction does not preclude the parties from administratively resolving the deficiency issues if they are able to do so. Also, if financially feasible, petitioner may pay the tax, file a claim for refund with the Internal Revenue Service, and if the claim is denied, sue for a refund in the Federal district court or U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.