Opinion
25325-21
02-18-2022
Jack D. Roberts & Amber Roberts Petitioners v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley, Chief Judge
On July 12, 2021, petitioners filed the petition to commence this case, seeking review of a notice of deficiency issued to them for their 2018 tax year. On November 29, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not filed within the time prescribed by the Internal Revenue Code. On December 23, 2021, petitioners filed an Objection to Motion To Dismiss for Lack of Jurisdiction.
The Tax 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; 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 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). When a notice of deficiency is mailed prior to the date shown on that notice, the taxpayer may use the date of the notice in determining the last date to file a petition. Loyd v. Commissioner, T.C. Memo. 1984-172. 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). 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).
The record in this case reflects that a notice of deficiency for tax year 2018 was sent to petitioners' last known addresses by certified mail on April 5, 2021. Based on that mailing date, the last date to timely file a petition with the Court was July 6, 2021. The Court received and filed the petition on July 12, 2021. The petition was received in an envelope bearing a postmark date of July 7, 2021. Both the filing and mailing dates are after the last date petitioner could timely file a petition with respect to the notice of deficiency issued to him.
In petitioners' objection to the motion to dismiss, they assert that their CPA's office mailed the petition on July 6, 2021, and we note that the envelope in which the petition was received bears a postmeter postage date of July 6, 2021. However, although extrinsic evidence is allowed to prove the date of mailing where an envelope containing a Tax Court petition lacks a postmark or the postmark is illegible, such evidence is irrelevant where the envelope bears a legible United States Postal Service postmark dated after the 90th day prescribed for filing a timely petition. I.R.C. sec. 7502(a); see Shipley v. Commissioner, 572 F.2d 212 (9th Cir. 1977); Drake v. Commissioner, 554 F.2d 736 (5th Cir. 1977); Kahle v. Commissioner, 88 T.C. 1063 (1987); Wiese v. Commissioner, 70 T.C. 712 (1978). Thus, in this case, the USPS postmark dated July 7, 2021, controls.
As the record establishes that the petition in this case was not timely filed, the Court is obliged to dismiss this case for lack of jurisdiction. We have no authority to extend the period for timely filing the 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). However, although petitioners may not prosecute this case in the Tax Court, petitioners may continue to pursue administrative resolution of the 2018 tax liability directly with the IRS. Another remedy available to petitioners, if feasible, is to pay the determined amounts, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioner may file 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, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.