Lenz v. Comm'r of Internal Revenue

• Decision Date: 01 February 2023
• Docket Number: 33904-21
• Parties: DEIRDRE LENZ, Petitioner v. COMMISSIONER OF INTERNAL REVENUE Respondent
• Court: U.S. Tax Court

DEIRDRE LENZ, Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE Respondent

No. 33904-21

United States Tax Court

February 1, 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 January 6, 2022. 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 May 6, 2022, the Court directed petitioner to file an objection, if any, to the Motion. On June 13, 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.

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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, in 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 the Motion to Dismiss, respondent asserts that the Notice of Deficiency in this case was sent by certified mail on July 26, 2021, to petitioner's last known address. A PS Form 3877 attached to the Motion to Dismiss establishes^[4] that respondent sent the Notice of Deficiency to petitioner by certified mail on July 26, 2021, to the address in Glendale, California, 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 her last known address. We thus take it as established for purposes of the Motion to Dismiss that the Notice was so mailed.

In view of the fact that the Notice of Deficiency was mailed to petitioner's last known address on July 26, 2021, the last date to file a petition with this Court as to

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that Notice was October 25, 2021, as stated therein.^[5] The Petition in this case was received and filed by the Court on October 27, 2021. Nevertheless, the Petition was delivered to the Court by FedEx in an envelope bearing a "FedEx 2 Day A.M." label dated October 25, 2021, raising the question whether the "timely mailed, timely filed" rule of section 7502 might apply in this case to deem the Petition timely filed.

In his Motion to Dismiss, respondent asserts that FedEx 2 Day A.M.-that is, the specific delivery service used by petitioner to send the Petition to the Court-is not a designated private delivery...