Opinion
25686-21
04-19-2023
DONALD G. ZEHR, 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 November 24, 2021, on the grounds that the petition was not filed within the time prescribed in the Internal Revenue Code. On January 10, 2023, petitioner filed an Objection to Motion To Dismiss for Lack of Jurisdiction.
The record reflects that a notice of deficiency for petitioner's 2018 tax year was sent by certified mail to petitioner at his last known address on February 22, 2021. The first page of the notice of deficiency on which this case is based advised petitioner that the last date to timely file a Tax Court petition was May 24, 2021. Petitioner filed the petition to commence this case on July 15, 2021, which is 143 days after the notice of deficiency was mailed. The petition was received by the Court in an envelope bearing a postmark dated July 8, 2021, which is 136 days after the notice of deficiency was mailed.
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, or 150 days if the notice is addressed to a person outside the United States, 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). The notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). Absent clear and concise notification to the IRS of a different address, a taxpayer's last known address is the address appearing on the taxpayer's most recently filed and properly processed tax return. Sec. 301.6212-2(a), Proced. & Admin. Regs.; King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff 'g 88 T.C. 1042 (1987).
In his objection to respondent's motion to dismiss, petitioner does not directly address respondent's jurisdictional allegations. Rather, petitioner asks that respondent's motion be denied as he does not remember seeing in the notice of deficiency the last date to file a Tax Court petition and petitioner wants the merits of his case to be heard. As noted above, however, the notice of deficiency advised petitioner of the deadline for filing a Tax Court petition. Furthermore, if this Court does not have jurisdiction, we cannot reach the merits of a case.
Because the record establishes that the petition was filed more than 90 days after the notice of deficiency was mailed to petitioner, we are 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 statutory 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 is free to continue to pursue an 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.