Opinion
17249-23
02-01-2024
NAYSHA Y. OQUENDO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge.
In a notice of deficiency dated May 30, 2023, respondent determined a deficiency in petitioner's federal income tax and penalties for tax year 2022. On November 1, 2023, petitioner electronically filed the Petition in this case, seeking to challenge that notice of deficiency.
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed December 18, 2023. In his Motion, respondent requests that this case be dismissed for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed in the Internal Revenue Code (I.R.C.). On December 19, 2023, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction. For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
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, as here, this Court's jurisdiction is duly challenged, 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); Romann v. Commissioner, 111 T.C. 273, 280 (1998); 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." David Dung Le, M.D., Inc., 114 T.C. at 270.
Unless otherwise indicated, statutory references are to the Internal Revenue 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.
In a case seeking redetermination of a deficiency, our jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition. See §§ 6212 and 6213; Patmon & Young Pro. Corp. v. Commissioner, 55 F.3d 216 (6th Cir. 1995), aff'g T.C. Memo. 1993-143; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022) (collecting cases); see also Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the Third Circuit). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer's last known address by certified or registered mail. See § 6212(a) and (b); Yusko v. Commissioner, 89 T.C. 806, 807 (1987). In order to be timely, a petition generally must be filed within 90 days of the date on which the Commissioner mails a valid notice of deficiency. See § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. 896, 898 (1980). We have no authority to extend this 90-day period. See Foster v. Commissioner, 445 F.2d at 800; Hallmark Rsch. Collective, 159 T.C. at 166-67.
If the notice of deficiency is addressed to a person outside the United States, a petition must be filed within 150 days of the mailing of the notice. See § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). The notice of deficiency in this case is addressed to petitioner at an address within the United States, and there is no indication in the record that petitioner was outside the United States at or about the time when the notice was mailed.
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. Treas. Reg. § 301.6212-2(a); King v. Commissioner, 857 F.2d 676, 680 (9th Cir. 1988), aff'g 88 T.C. 1042 (1987). The taxpayer bears the burden of proving that the notice of deficiency was not sent to the taxpayer's last known address. Yusko v. Commissioner, 89 T.C. 806, 808 (1987). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989).
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. §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. §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). An electronically filed petition is filed with this Court at the time it is received. Nutt v. Commissioner, No. 15959-22, 160 T.C., slip op. at 3-4 (May 2, 2023) (holding that the timely mailing rule of section 7502(a) does not apply to electronically filed petitions). Under Rule 22(d), an electronically filed petition "will be considered timely filed if it is electronically filed at or before 11:59 p.m., eastern time, on the last day of the applicable period for filing." See Sanders v. Commissioner, No. 25868-22, 160 T.C., slip op. at 5 (Jun. 20, 2023).
In the Motion to Dismiss, respondent asserts that the notice of deficiency in this case was sent by certified mail on May 30, 2023, to petitioner's last known address. A PS Form 3877 attached to the Motion to Dismiss establishes that respondent sent the notice of deficiency to petitioner by certified mail on May 30, 2023. Petitioner has not disputed that the notice was mailed to petitioner's last known address. We thus take it as established for purposes of the Motion to Dismiss that the notice was properly mailed.
A properly completed PS Form 3877 (or certified mailing list) is direct evidence of both the fact and date of mailing and, in the absence of contrary evidence, is sufficient to establish proper mailing of the notice of deficiency. See Clough v. Commissioner, 119 T.C. 183, 187-91 (2002); Stein v. Commissioner, T.C. Memo. 1990-378; see also Keado v. United States, 853 F.2d 1209, 1213 (5th Cir. 1988); United States v. Zolla, 724 F.2d 808, 810 (9th Cir. 1984); Coleman v. Commissioner, 94 T.C. 82, 91 (1990). The PS Form 3877 attached to respondent's Motion to Dismiss appears to be properly completed and bears sufficient indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
Based on the date the notice of deficiency was mailed to petitioner's last known address-May 30, 2023-the last date to file a petition with this Court was August 28, 2023, as stated in the notice. Petitioner electronically filed the Petition in this case on November 1, 2023. Consequently, the Petition was not filed within the period prescribed in the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
In petitioner's objection to respondent's Motion to Dismiss petitioner argues that, although the Petition was not timely filed, the Court should apply the doctrine of equitable tolling and rule that we have jurisdiction in this case. Petitioner's argument relies on the decision of the U.S. Court of Appeals for the Third Circuit in Culp v. Commissioner, 75 F.4th 196, 205 (3d Cir. 2023).
Petitioner's reliance on Culp, however, is misplaced. Culp is a Third Circuit case, while this case is presumably appealable to the U.S. Court of Appeals for the Sixth Circuit. See § 7482(b)(1). The Sixth Circuit has held that the timely filing deadline in deficiency cases is jurisdictional. See Patmon & Young Pro. Corp. v. Commissioner, 55 F.3d 216 (6th Cir. 1995), aff'g T.C. Memo. 1993-143. Furthermore, as noted above, in Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023), this Court thoroughly examined the Culp decision and held that we will continue treating the timely filing deadline as jurisdictional in deficiency cases appealable outside the Third Circuit. Accordingly, petitioner is not entitled to equitable tolling in this case.
While we may be sympathetic to petitioner's circumstances, Congress has limited our jurisdiction in the deficiency context to those cases in which a petition is timely filed, and we have no authority to extend by equitable tolling the 90-day period set forth in § 6213(a). See Foster v. Commissioner, 445 F.2d at 800; Sanders, 161 T.C., slip op. at 7-8; Hallmark Rsch. Collective, 159 T.C. at 166-67; see also 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.").
However, although petitioner cannot pursue this Tax Court case, petitioner may continue to pursue administrative resolution of the 2022 tax liability directly with the Internal Revenue Service (IRS). In addition, another remedy potentially available to petitioner, if feasible, is to pay the determined amounts and thereafter file a claim for refund with the IRS. If that claim is denied (or not acted upon after six months), petitioner may file a suit for refund in the appropriate U.S. 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 and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction because the Petition was not filed within the period prescribed by I.R.C. § 6213(a).