Opinion
25223-21
01-11-2024
JOHN A. CARMINUCCI & JOHANNA CARMINUCCI, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Juan F. Vasquez Judge
I. Background
On October 4, 2021, petitioners electronically filed the Petition in the above-docketed matter. In the Petition, petitioners allege that the Internal Revenue Service (IRS) wrongfully levied their bank account for taxable years 2005, 2006, and 2007. Petitioners also indicate that they are seeking review of notices of deficiency and purported notices of determination concerning collection action and notices of certification of your seriously delinquent federal tax debt to the Department of State for those taxable years. However, no such notices are attached to the Petition. Instead petitioners attached a September 15, 2021, Letter 2681 from the IRS Independent Office of Appeals (Appeals) referencing the continued disallowance of a claim for refund for the 2005 taxable year after consideration of a protest from petitioners.
On September 21, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction. Therein respondent requests that this case be dismissed for lack of jurisdiction on the following grounds: (1) with respect to notices of deficiency issued to petitioner John A. Carminucci, the Petition was not filed within the time prescribed by section 6213(a) or section 7502; (2) no notice of deficiency was issued to petitioner Johanna Carminucci; (3) no notice of determination concerning collection action has been sent to petitioners with respect to taxable years 2005, 2006, or 2007; and (4) respondent has not made any other determination with respect to those taxable years that would confer jurisdiction on this Court.
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.
Petitioner filed an Opposition on October 11, 2022, and respondent filed a Reply on October 26, 2022. Thereafter, this case was called from the calendar for the New York, New York, trial session of the Court on October 31, 2022. There were no appearances by or on behalf of petitioners. Counsel for respondent appeared and was heard. By Order to Show Cause issued November 15, 2022, the Court directed petitioners to show cause why respondent's Motion to Dismiss should not be granted. Petitioners filed a Response to our Order to Show Cause on November 30, 2022.
For the reasons that follow, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
II. 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, 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.
A. Jurisdiction under sections 6320/6330 and 7345
We first address our jurisdiction with respect to purported notices of determination concerning collection action and notices of certification of your seriously delinquent federal tax debt to the Department of State referenced in the Petition for 2005, 2006, and 2007.
This Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330 depends, in part, upon the issuance of a valid notice of determination by Appeals under section 6320 or 6330. See §§ 6320(c) & 6330(d)(1); Rule 330(b); Offiler v. Commissioner, 114 T.C. 492 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer has requested a hearing before Appeals in reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 or Final Notice of Intent To Levy and Notice of Your Right to a Hearing (or the equivalent Notice CP90, Intent to seize your assets and notice of your right to a hearing, depending on the version of the form used). See § 6320 & 6330.
Jurisdiction under section 7345(e), involving revocation or denial of a passport rests on the issuing to the taxpayer of a notice of certification of a seriously delinquent Federal tax debt to the State Department and the filing of a petition by the taxpayer.
Respondent contends that no notice of determination concerning collection action or notice of certification of your seriously delinquent federal tax debt to the Department of State has been issued to petitioners for 2005, 2006, or 2007. Petitioners, who bear the burden of proving that we have jurisdiction over this case, have not shown that respondent issued any such notices. Nor is there any evidence that petitioners requested a hearing with Appeals in response to a notice of federal tax lien filing or a final notice of intent to levy. We therefore lack jurisdiction under section 6320 or 6330 and section 7345(e).
B. Jurisdiction under section 6213(a)
As stated above, petitioners appear to be seeking refunds of amounts they allege were wrongfully levied by the IRS. Unless a case is properly based on a notice of deficiency and the Court must determine the correct amount of tax for the tax year to which the notice relates, this Court does not have jurisdiction to make a determination concerning whether there has been an overpayment of tax. See § 6512(b); see also Weber v. Commissioner, 138 T.C. 348, 367 (2012) ("[T]he Tax Court's overpayment jurisdiction in deficiency cases is explicitly limited to determining an overpayment of the same liability already at issue."). Thus, we must address our jurisdiction to redetermine the deficiencies determined against Mr. Carminucci and the purported deficiencies determined against Mrs. Carminucci for 2005, 2006, and 2007.
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 §§ 6212 and 6213; Rule 13(a) and (c); Hoffenberg v. Commissioner, 905 F.2d 665 (2d Cir. 1990) (per curiam), aff'g T.C. Memo. 1989-676.; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022) (collecting cases). 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 Hoffenberg v. Commissioner, 905 F.2d at 666; 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 notices of deficiency in this case are addressed to Mr. Carminucci at an address within the United States, and there is no indication in the record that he was outside the United States at or about the time when the notice was mailed.
In the Motion to Dismiss, respondent asserts that no notice of deficiency was mailed to Mrs. Carminucci for 2005, 2006, or 2007. With respect to Mr. Carminucci, respondent acknowledges the issuance of notices of deficiency but contends that the Petition was not timely filed.
1. Mrs. Carminucci
We first consider our jurisdiction with respect to Mrs. Carminucci. Petitioners, who bear the burden of proving that we have jurisdiction over their case, have not produced notices of deficiency issued to Mrs. Carminucci for 2005, 2006, or 2007. We therefore lack jurisdiction to consider Mrs. Carminucci's correct amount of tax (and whether she is entitled to any overpayment) for those years.
2. Mr. Carminucci
We next consider our jurisdiction with respect to Mr. Carminucci. Respondent asserts that notices of deficiency for 2005, 2006, and 2007 were sent by certified mail, respectively, on May 19, 2008, April 6, 2009, and March 1, 2010, to Mr. Carminucci's last known address. Certified mailing lists and a PS Form 3877 attached to the Motion to Dismiss establish that respondent sent the notices of deficiency to Mr. Carminucci by certified mail on those dates to the address in Brewster, New York, listed in the notices. That address is the same address that petitioners listed in the Petition, and petitioners have not disputed that it was Mr. Carminucci's last known address. We thus take it as established for purposes of the Motion to Dismiss that the notices were so 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 certified mailing lists and PS Form 3877 attached to respondent's Motion to Dismiss appear to be properly completed and bear sufficient indicia of authenticity. Finding no evidence to the contrary, we accept the foregoing documents as presumptive proof of their contents.
As stated above, this Court's jurisdiction depends on the timely filing of a petition, see §§ 6212 and 6213; Rule 13(a) and (c); Hoffenberg v. Commissioner, 905 F.2d at 666; Hallmark Rsch. Collective, 159 T.C. at 130 n.4, and a petition generally must be filed within 90 days of the mailing of the notice of deficiency, see § 6213(a); Estate of Cerrito v. Commissioner, 73 T.C. at 898. Petitioners electronically filed the Petition in this case several years after the mailing dates of the 2005, 2006, and 2007 notices of deficiency. Consequently, the Petition was not filed within the period prescribed by the Internal Revenue Code, and this case must be dismissed for lack of jurisdiction.
In their Opposition to respondent's Motion and Response to our Order to Show Cause, petitioners assert that Mr. Carminucci did not receive the notices of deficiency until after respondent provided them in response to a 2021 Freedom of Information Act request. Petitioners further suggest that the notices are invalid because the record lacks proof of delivery. However, a notice of deficiency generally will be deemed valid 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. at 807. Actual receipt of the notice by the taxpayer is unnecessary; as long as the notice was sent to the taxpayer's last known address it is sufficient even if the taxpayer did not receive the notice. Tadros v. Commissioner, 763 F.2d 89, 91 (2d Cir 1985); Dees v. Commissioner, 148 T.C. 1, 8 (2017). As explained supra note 3, respondent has established that the notices of deficiency were sent by certified mail to Mr. Carminucci's last known address. Thus, the notices of deficiency would be valid even if we assumed arguendo that Mr. Carminucci did not receive them.
Petitioners also contend that the Court should apply the doctrine of equitable tolling to the 90-day deadlines in this case, citing the decision of the Supreme Court in Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022). Petitioners' reliance on Boechler is misplaced. Boechler was a collection due process case involving our jurisdiction under section 6330(d)(1). Conversely, our review of the notices of deficiency issued to Mr. Carminucci for 2005, 2006 and 2007 is governed by section 6213(a). See Hoffenberg v. Commissioner, 905 F.2d at 666 ("A late petition [in a deficiency case] will be dismissed for lack of jurisdiction, and the taxpayer's only remedy then will be to pay the deficiency and bring an action in the district court for a refund."); Hallmark Rsch. Collective, 159 T.C. at 165-66 (concluding that the Supreme Court's reasoning in Boechler does not apply to the 90-day period of section 6213(a)); 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). Accordingly, Mr. Carminucci is not entitled to equitable tolling in this case.
Finally, petitioners generally argue that we have jurisdiction to resolve the purported wrongful levy because it caused harm to them. However, section 7442 does not provide this Court with jurisdiction to review all tax-related matters. As discussed above, this Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent provided by statute. To the extent petitioners may be seeking a refund, this Court is not the proper court in which to file a lawsuit challenging the IRS's denial of a claim for refund. A taxpayer may seek a judicial remedy for wrongful denial of claims for refund -i.e., a refund suit in compliance with sections 6532(a)(1) and 7422(a)-only in the United States Court of Federal Claims, pursuant to 28 U.S.C. § 1491(a)(1), or in Federal district court, pursuant to 28 U.S.C. § 1346(a)(1). Those statutes do not confer refund jurisdiction on the Tax Court.
The foregoing considered, it is
ORDERED that the Court's Order to Show Cause, issued November 15, 2022, is made absolute. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed September 21, 2022, is granted, and this case is dismissed for lack of jurisdiction.