Opinion
11833-23S
01-08-2024
CARL K. KLOTZSCHE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
In a notice of deficiency dated April 26, 2023, respondent determined deficiencies in petitioner's federal income tax of $3,556 and $3,286, respectively, for taxable years 2020 and 2021. On July 26, 2023, petitioner electronically filed the Petition in this case, seeking redetermination of the deficiencies for both taxable years.
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed September 21, 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 by the Internal Revenue Code. On October 20, 2023, petitioner filed a Response in which he objected to respondent's Motion. 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, as here, 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); Foster v. Commissioner, 445 F.2d 799, 800 (10th Cir. 1971); 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.
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 April 26, 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 April 26, 2023, to the address in Colorado Springs, Colorado, listed in the notice. That address is the same address that petitioner listed in the Petition, and petitioner has not disputed that the notice was mailed to his last known address. We thus take it as established for purposes of the Motion to Dismiss that the notice was 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 PS Form 3877 attached as Exhibit A 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.
Given that the notice of deficiency was mailed to petitioner's last known address on April 26, 2023, the last date to file a petition with this Court as to that notice was July 25, 2023, as stated therein. Petitioner electronically filed the Petition in this case on July 26, 2023. 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 his Response petitioner argues that the Court should apply the doctrine of equitable tolling in this case, citing the decision of the Supreme Court in Boechler, P.C. v. Commissioner, 596 U.S. 199 (2022), and that of the U.S. Court of Appeals for the Third Circuit in Culp v. Commissioner, 75 F.4th 196, 205 (3d Cir. 2023). He also cites difficulties uploading his Petition onto DAWSON and respondent's delay in filing the Motion to Dismiss as reasons to deny the Motion.
To the extent petitioner argues in his Response that respondent's Motion should be denied on the ground that it was not filed within 45 days from the date of service of the Petition, we are unpersuaded. It is well settled that this Court can proceed in a case only if it has jurisdiction and that either party, or the Court sua sponte, can question jurisdiction at any time. See Brown v. Commissioner, 78 T.C. 215, 218 (1982) (rejecting the same argument).
We first address petitioner's equitable tolling argument. Petitioner's reliance on Boechler is misplaced. Boechler was a collection due process case involving our jurisdiction under section 6330(d)(1). Conversely, this is a deficiency case, and our jurisdiction in such cases is governed by section 6213(a). See 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)). Although the Third Circuit reached a different conclusion in Culp, 75 F.4th at 205 (holding that the deficiency deadline under section 6213(a) is nonjurisdictional), this case is presumably appealable to the U.S. Court of Appeals for the Tenth Circuit, see § 7482(b)(1). The Tenth Circuit has held that the deficiency deadline is jurisdictional. See Foster v. Commissioner, 445 F.2d at 800. Also, in Sanders, 161 T.C., slip op. at 7- 8, this Court thoroughly examined the Culp decision and held that we will continue treating the deficiency deadline as jurisdictional in cases appealable outside the Third Circuit. Accordingly, petitioner is not entitled to equitable tolling in the instant case.
We next address petitioner's contention that he was unable to file his Petition timely because of difficulties uploading the pleading onto DAWSON. This contention arguably raises section 7451(b)(1), which provides that when a "filing location is inaccessible or otherwise unavailable to the general public on the date a petition is due, the relevant time period for filing such petition shall be tolled for the number of days within the period of inaccessibility plus an additional 14 days." DAWSON is a "filing location" under this provision. Sanders, 160 T.C., slip op. at 9; see § 7451(b)(2)(B).
To determine whether the tolling period under section 7451(b)(1) applies to an electronically filed petition, the Court distinguishes "between the availability of the Court's system and user-specific issues." Sanders, 160 T.C., slip op. at 10. A DAWSON outage that affects the public's ability to file petitions renders DAWSON "inaccessible or otherwise unavailable to the general public," thereby triggering the tolling period. See id. at 11. Conversely, problems that an individual filer experiences while DAWSON is operational do not trigger the section 7451(b)(1) tolling period. See id.
In his Response petitioner acknowledges that he could access DAWSON on July 25, 2023, but alleges that he could not upload his Petition onto the system despite several attempts. However, the Court's own records show DAWSON was operational at all relevant times. The Court's website allows users to view DAWSON's system status. See United States Tax Court, https://status.ustaxcourt.gov/. The system recorded no downtime on July 25, 2023. See id. Considering that fact, along with petitioner's acknowledgment that he could access DAWSON on July 25, 2023, it is clear that petitioner's purported uploading problems were "unique to him and not the result of the system's being inaccessible or otherwise unavailable to the general public." See Sanders, 160 T.C., slip op. at 12. Accordingly, the tolling provision of section 7451(b)(1) does not apply to this case.
While we are 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 section 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."). Although petitioner cannot pursue his case in this Court, he may continue to pursue administrative resolution of the 2020 and 2021 tax liabilities with the Internal Revenue Service (IRS). Another remedy potentially available to petitioner, if feasible, is to pay the determined amounts and thereafter file claims for refund with the IRS. If those claims are 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. section 6213(a).