Opinion
21284-21
04-01-2022
HALLMARK RESEARCH COLLECTIVE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
By Order to Show Cause served November 17, 2021, the Court directed the parties in this deficiency case to file, on or before December 15, 2021, a response showing cause in writing why the Court, on its own motion, should not dismiss the case for lack of jurisdiction on the ground that the Petition was not filed within the time prescribed by the Internal Revenue Code. See I.R.C. § 6213(a).
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On December 15, 2021, petitioner filed a Response to the Order to Show Cause, therein conceding that the Petition was not timely filed, but nevertheless requesting, for the reasons set forth in the Memorandum of Law filed therewith, that the Court not dismiss this case for lack of jurisdiction.
On January 5, 2022, respondent filed a Motion for Leave to File Out of Time Response to Order to Show Cause, lodging therewith his Response. By Order served March 22, 2022, the Court granted respondent's Motion for Leave and directed that the Response be filed. Therein, respondent asserts that the Petition was not timely filed, and that there is no cause why the Court should not dismiss this case for lack of jurisdiction.
For the reasons set forth below, we must dismiss this case for lack of jurisdiction. 1
Background
By Notice of Deficiency dated June 3, 2021, respondent made certain deficiency, addition to tax, and penalty determinations in petitioner's Federal income taxes for the 2015 and 2016 taxable years. The Notice states that the last date to file a petition with the Tax Court is September 1, 2021. On September 2, 2021, petitioner electronically filed a Petition for redetermination with this Court as to the Notice.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). Jurisdiction must be shown affirmatively, and the party seeking to invoke our jurisdiction bears the burden of proving in any case that we have jurisdiction to hear it. 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.
In a case seeking redetermination of a deficiency, as here, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§ 6212, 6213, and 6214; Rule 13(a) and (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). A notice of deficiency generally will be deemed valid for this purpose if it is mailed to the taxpayer at his last known address. See I.R.C. § 6212(b); Pietanza v. Commissioner, 92 T.C. 729, 736 (1989), aff'd, 935 F.2d 1282 (3d Cir. 1991); Frieling v. Commissioner, 81 T.C. 42, 52 (1983). 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 I.R.C. § 6213(a); Brown v. Commissioner, 78 T.C. 215, 220 (1982). We have no authority to extend this 90-day period. See Joannou v. Commissioner, 33 T.C. 868, 869 (1960); see also Organic Cannabis Found., LLC v. Commissioner, 962 F.3d 1082, 1092-1095 (9th Cir. 2020).
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 I.R.C. § 6213(a); Smith v. Commissioner, 140 T.C. 48 (2013); Lewy v. Commissioner, 68 T.C. 779 (1977). There is no indication in the record-nor has petitioner asserted, after having been given an opportunity to do so-that petitioner was outside the United States at or about the time that the Notice of Deficiency in this case was mailed.
In his Response, respondent asserts that attached thereto as Exhibit A is a Substitute for Postal Service Form 3877, Certified Mailing List, showing that the Notice of Deficiency was sent by certified mail on June 3, 2021, to petitioner's last 2 known address. A review of the aforementioned document establishes that respondent sent the Notice of Deficiency to petitioner by certified mail on June 3, 2021, to the address in Pasadena, California, listed therein. Petitioner has not disputed that the Notice of Deficiency was sent to its last known address. We therefore take it as established that the Notice was so sent.
A properly completed Postal Service Form 3877 (or its equivalent, i.e., a 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, 187-191 (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 document attached as Exhibit A to respondent's Response appears to be properly completed and bears sufficient indicia of authenticity, such as a U.S. Postal Service postmark date of June 3, 2021. Finding no evidence to the contrary, we accept the foregoing document as presumptive proof of its contents.
In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on June 3, 2021, the last date to file a petition for redetermination with this Court as to that Notice was September 1, 2021, as stated therein. As noted above, the Petition was electronically filed with the Court on September 2, 2021. Consequently, the Petition was not filed within the time prescribed by the Internal Revenue Code.
As noted supra p. 1, petitioner concedes in its Response that the Petition was not timely filed. Nevertheless, petitioner argues on two grounds that this case should not be dismissed for lack of jurisdiction. First, petitioner argues that the Court should delay determining whether we have jurisdiction over this matter until such time as the U.S. Supreme Court has issued an opinion in Boechler, P.C. v. Commissioner. In Boechler, P.C. v. Commissioner, 967 F.3d 760 (8th Cir. 2020), the U.S. Court of Appeals for Eighth Circuit joined the U.S. Court of Appeals for the Ninth Circuit, see Duggan v. Commissioner, 879 F.3d 1029 (9th Cir. 2018), in holding that the 30-day filing deadline imposed by section 6330(d)(1)-which governs the time limit for petitioning this Court for review of a notice of determination concerning collection action-is jurisdictional. Petitioner argues that, because Boechler involves the issue of whether the 30-day filing deadline imposed by section 6330(d)(1) is jurisdictional, and, in petitioner's view, the 90-day (or 150-day) filing deadline imposed by section 6213(a) "is functionally the same" as section 6330(d)(1), the Court should wait until after Boechler is decided before determining whether we have jurisdiction over this matter.
We are unpersuaded by petitioner's argument. As noted, Boechler is a collection due process case and involves our jurisdiction under section 6330(d)(1). Conversely, this is a deficiency case, and our jurisdiction in such cases is governed by 3 section 6213(a). The U.S. Court of Appeals for the Ninth Circuit, where appeal in this case lies absent a stipulation to the contrary, has recently confirmed-after examining the text, context, and relevant historical treatment of section 6213(a)- that the filing deadlines imposed by that provision are jurisdictional. See Organic Cannabis Found., LLC, 962 F.3d at 1092-1095. In its opinion, the Court of Appeals noted that "the circuits have uniformly adopted a jurisdictional reading of § 6213(a) or its predecessor since at least 1928." Id. at 1095. Given the long-standing precedent collected by the Court of Appeals in Organic Cannabis Found., and the fact that Boechler involves a different statutory provision, we must decline petitioner's invitation to delay our determination as to whether the Court lacks jurisdiction over this matter.
See Golsen v. Commissioner, 54 T.C. 742, 756-757 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971).
Petitioner's second argument is that the Court should apply the doctrine of equitable tolling under the circumstances of this case. Petitioner asserts that "his accountant was not available for much of the 90-day period due to COVID and ensuing medical complications", and that, "[f]inally acting out of desperation, [he] filed a Tax Court petition pro se one day after the deadline." Petitioner argues that "[t]hese are precisely the circumstances that warrant an objective hearing to determine if equitable tolling relief should be granted."
Certain tax-related filing deadlines, including the deadline for filing a petition with the Tax Court, were extended due to the COVID-19 pandemic; however, the circumstances of this case fall far outside the relief afforded. The Court's decision in Guralnik v. Commissioner, 146 T.C. 320 (2016), together with IRS Notice 2020-23, 2020-18 I.R.B. 742 (Apr. 27, 2020), extended to July 15, 2020, the deadline for filing petitions with due dates between March 19, 2020, and July 15, 2020. But in this case, the due date for filing a petition with the Court was September 1, 2021. Thus, the foregoing authorities are not applicable to this case, and the Petition was still not timely filed, even after accounting for the extensions granted due to the COVID-19 pandemic.
While the Court is sympathetic to petitioner's circumstances, governing law recognizes no exceptions for good cause or similar grounds that would allow petitioner to proceed in this judicial forum. As noted above, the Court has no authority to extend the period provided by law for filing a petition "whatever the equities of a particular case may be and regardless of the cause for its not being filed within the required period." Axe v. Commissioner, 58 T.C. 256, 259 (1972). Accordingly, as petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction", David Dung Le, M.D., Inc., 114 T.C. at 270, we must dismiss this case for lack of jurisdiction.
Upon due consideration of the foregoing, it is 4
ORDERED that the Court's Order to Show Cause is hereby made absolute. It is further
ORDERED that, on the Court's own motion, this case is dismissed for lack of jurisdiction. 5