Banovic v. Comm'r of Internal Revenue

• Decision Date: 30 January 2023
• Docket Number: 27904-21S
• Parties: RONALD A. BANOVIC, Petitioner v. COMMISSIONER OF INTERNAL REVENUE Respondent
• Court: U.S. Tax Court

RONALD A. BANOVIC, Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE Respondent

No. 27904-21S

United States Tax Court

January 30, 2023

ORDER OF DISMISSAL FOR LACK OF JURISDICTION

Kathleen Kerrigan, Chief Judge.

Pending before the Court in this deficiency case^[1] is respondent's Motion to Dismiss for Lack of Jurisdiction, filed November 5, 2021. Therein, 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. By Order served December 17, 2021, the Court directed petitioner to file an objection, if any, to the Motion. On January 10, 2022, petitioner filed such an Objection. 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 I.R.C. § 7442;^[2] Hallmark Research Collective v. Commissioner, No. 21284-21, 159 T.C., slip op. at 11 (Nov. 29, 2022). 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.

1

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 and 6213; Rule 13(a) and (c); Hallmark Research Collective, slip op. at 6; 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); Hallmark Research Collective, slip op. at 42; Brown v. Commissioner, 78 T.C. 215, 220 (1982).^[3] 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, 1093-1095 (9th Cir. 2020). However, under certain circumstances, a timely mailed petition may be treated as though it were timely filed. See I.R.C. § 7502; Treas. Reg. § 301.7502-1.

In his Motion to Dismiss, respondent asserts that he has attached, as Exhibit B, a certified mail list showing that the Notice of Deficiency in this case was sent by certified mail on March 10, 2021, to petitioner's last known address. A review of the foregoing document establishes^[4] that respondent sent the Notice of Deficiency to petitioner by certified mail on March 10, 2021, to the address in Palos Heights, Illinois, listed therein. That address is the same address that petitioner listed in the Petition, and petitioner has not disputed that the Notice was sent to his last known address. We therefore take it as...