Opinion
31850-21
06-15-2023
ALEJANDRO DIAZ ZALDIVAR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Travis A. Greaves Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 27, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the petition was filed 95 days after the notice of deficiency was sent to petitioner.
Background
Respondent determined an income tax deficiency of $8,815 and an accuracy-related penalty under section 6662(a) of $1,858 for petitioner's 2018 tax year. On June 28, 2021, respondent mailed to petitioner a notice of deficiency. In response to the notice, petitioner filed a petition to commence this case. The Court received the petition on October 1, 2021, in an envelope bearing a postmark of September 30, 2021.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C. (I.R.C. or Code), in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On December 27, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that petitioner failed to timely file the petition. Thereafter, petitioner filed an Objection to the Motion to Dismiss for Lack of Jurisdiction. Petitioner claimed that he did not receive the income at issue and that he was unable to get supporting documentation due to lack of cooperation from the alleged payors. He did not include any exhibits demonstrating that the petition was timely filed.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). Where this Court's jurisdiction is duly challenged, as here, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270; Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Petitioner invoked our jurisdiction and therefore bears the burden of establishing jurisdiction.
In a case seeking redetermination of a deficiency, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See Rule 13(a) and (c); Mulvania v. Commissioner, 81 T.C. 65, 67 (1983); Naftel, 85 T.C. at 530; David Dung Le, M.D., Inc., 114 T.C. at 270. Section 6213(a) provides: "Within 90 days . . . after the notice of deficiency authorized in section 6212 is mailed . . ., the taxpayer may file a petition with the Tax Court for a redetermination of the deficiency." We have held that the 90-day period prescribed by section 6213(a) sets forth a jurisdictional requirement. See Hallmark Research Collective v. Commissioner, 159 T.C. No. 6, at *42 (2022).
The notice of deficiency upon which this case is based was mailed to petitioner on June 28, 2021; accordingly, the last day to file a petition with the Tax Court was September 27, 2021. The envelope containing the petition sent to the Court bears a postmark indicating delivery to the postal service on September 30, 2021, and the petition was not received by the Court until October 1, 2021. Petitioner failed to provide any evidence of timely delivery to the postal service. It therefore appears the petition was not timely filed, in which case this Court is without jurisdiction.
Petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270. While we appreciate that petitioner does not believe he owes the amount stated in the notice and that he had difficulty collecting supporting documentation, we have no authority to extend the period for timely filing a petition. See Axe v. Commissioner, 58 T.C. 256, 259 (1972) ("We have no authority to extend the period provided by law for filing a petition with the Tax Court whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period."). Accordingly, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed on December 27, 2021, is granted, and this case is dismissed for lack of jurisdiction.