T.C. Memo. 2002-193
UNITED STATES TAX COURT
TIMOTHY SCOTT AND ANYA FRANCES ANTHONY, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12818-01. Filed August 6, 2002.
Timothy Scott Anthony, pro se.
David Lau, for respondent.
MEMORANDUM OPINION
COLVIN, Judge: This matter is before the Court on
respondent’s motion to dismiss for lack of jurisdiction on the
ground that the petition was untimely.
Petitioners mailed their petition on October 3, 2001, which
was 98 days after respondent mailed the notice of deficiency.
The sole issue for decision is whether the time for petitioners
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to file a petition in the Tax Court was extended from September
25, 2001, to October 3, 2001, by relief provisions promulgated by
respondent for taxpayers affected by the September 11, 2001,
terrorist attack. We hold that it was not.
Section references are to the Internal Revenue Code as
amended. References to petitioner are to Timothy Scott Anthony.
Background
Petitioners resided in Kailua, Hawaii, when they filed their
petition. The records necessary to prepare petitioners’ petition
were in Hawaii during all relevant times. On June 27, 2001,
respondent sent a notice of deficiency for 1999 to petitioners at
their last known address. The 90th day after the notice of
deficiency was issued, and thus the last date for petitioners to
timely file a petition in the Tax Court without regard to relief
provisions, was September 25, 2001. See sec. 6213(a).
Between September 11, 2001, and when they mailed their
petition on October 3, 2001, petitioners did volunteer work in
Hawaii for an organization known as Stand Up For America,1 which
was organized in Hawaii to memorialize the victims of the
September 11, 2001, terrorist attack. Petitioner’s wife
coordinated other volunteers, arranged for a website, obtained
flowers, and kept a bank account for Stand Up For America.
1
The record is silent regarding the specific activities of
Stand Up For America.
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On October 3, 2001, petitioners mailed a letter to the Court
which the Court received and filed as a petition on October 9,
2001.
Discussion
A taxpayer generally has 90 days from the mailing of a
notice of deficiency to petition this Court for a redetermination
of the deficiency. Sec. 6213(a). Respondent mailed the notice
of deficiency to petitioners on July 27, 2001. The 90th day
after the notice of deficiency was issued was September 25, 2001.
Petitioners mailed the petition on October 3, 2001.
Petitioners contend that we should treat their petition as
timely because respondent’s notices and regulations extended the
time for taxpayers affected by the September 11, 2001, terrorist
attack to file a petition in the Tax Court. We disagree that
those notices and regulations apply to petitioners. Petitioners
contend that, because of their involvement with Stand Up For
America after the September 11, 2001, terrorist attack, they are
persons affected by a presidentially declared disaster within the
meaning of section 301.7508A-1(d)(vii), Proced. & Admin. Regs.,
and thus the deadline for filing their petition was postponed.
The Secretary has authority to postpone the deadlines for
performance of certain acts, including filing a Tax Court
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petition, by taxpayers affected by a presidentially declared
disaster. Secs. 7508A(a)(1),2 7508(a)(1)(C).3
2
Sec. 7508A provides in pertinent part:
SEC. 7508A. AUTHORITY TO POSTPONE CERTAIN TAX-RELATED
DEADLINES BY REASON OF PRESIDENTIALLY DECLARED
DISASTER.
(a) In General.--In the case of a taxpayer
determined by the Secretary to be affected by a
Presidentially declared disaster (as defined in section
1033(h)(3)), the Secretary may prescribe regulations
under which a period of up to 120 days may be
disregarded in determining, under the internal revenue
laws, in respect of any tax liability * * * of such
taxpayer--
(1) whether any of the acts described in
paragraph (1) of section 7508(a) were performed
within the time prescribed therefor * * *.
Sec. 7508A was amended by the Victims of Terrorism Tax
Relief Act of 2001 (VTTRA), Pub. L. 107-134, sec. 112(a), (b),
115 Stat. 2427, 2433, 2434. Congress gave the Secretary of the
Treasury, the Secretary of Labor, and the Pension Benefit
Guaranty Corp. authority to postpone certain deadlines by reason
of terroristic or military actions and extended the period that
may be disregarded from 120 days to 1 year. The amendment
applies to actions of the Secretary of the Treasury, the
Secretary of Labor, or the Pension Benefit Guaranty Corp. on or
after Jan. 23, 2002, concerning disasters and terroristic or
military actions occurring on or after Sept. 11, 2001. VTTRA
sec. 112(f), 115 Stat. 2435. We are aware of no action by the
Secretary of the Treasury, the Secretary of Labor, or the Pension
Benefit Guaranty Corp. which occurred on or after Jan. 23, 2002,
which describes taxpayers affected by the Sept. 11, 2001,
terrorist attack in a manner which includes petitioners. Even if
the VTTRA amendment to sec. 7508A applies here, it does not
affect the outcome of this case.
3
Sec. 7508(a)(1)(C) provides in pertinent part:
SEC. 7508. TIME FOR PERFORMING CERTAIN ACTS POSTPONED BY
REASON OF SERVICE IN COMBAT ZONE.
(continued...)
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The September 11, 2001, terrorist attack is a presidentially
declared disaster for purposes of sections 7508(a) and 7508A.
Notice 2001-61, 2001-40 I.R.B. 305; Notice 2001-63, 2001-40
I.R.B. 308. Petitioners contend that they are “affected
taxpayers”, i.e., taxpayers affected by the September 11, 2001,
terrorist attack, as defined in section 301.7508A-1(d)(1),
Proced. & Admin. Regs., and Notice 2001-61, supra. Section
301.7508A-1(d)(1), Proced. & Admin. Regs., and Notice 2001-61,
supra, define affected taxpayers for purposes of section 7508A.
The regulations under section 7508A describe categories of
taxpayers who are generally affected by presidentially declared
disasters. Notice 2001-61, supra, describes categories of
taxpayers who were specifically affected by the September 11,
2001, terrorist attack.
Under section 301.7508A-1(d)(1), Proced & Admin. Regs.,
affected taxpayers include:
(i) Any individual whose principal residence * * *
is located in a covered disaster area;
(ii) Any business entity or sole proprietor whose
principal place of business is located in a covered
disaster area;
3
(...continued)
(a) Time to be disregarded.--
* * * * * * *
(C) Filing a petition with the Tax Court
for redetermination of a deficiency * * *.
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(iii) Any individual who is a relief worker
affiliated with a recognized government or
philanthropic organization and who is assisting in a
covered disaster area;
(iv) Any individual whose principal residence
* * *, or any business entity or sole proprietor whose
principal place of business is not located in a covered
disaster area, but whose records necessary to meet a
deadline for an act specified in paragraph (c) of this
section are maintained in a covered disaster area;
(v) Any estate or trust that has tax records
necessary to meet a deadline for an act specified in
paragraph (c) of this section and that are maintained
in a covered disaster area;
(vi) The spouse of an affected taxpayer, solely
with regard to a joint return of the husband and wife;
or
(vii) Any other person determined by the IRS to be
affected by a Presidentially declared disaster * * *.
Petitioners are not affected taxpayers under categories (i)-
(vii). Sec. 301.7508A-1(d)(1)(i)-(vi), Proced. & Admin. Regs.
To qualify as affected taxpayers under section 301.7508-
1(d)(1)(vii), Proced. & Admin. Regs., petitioners must be
affected taxpayers as defined in Notice 2001-61, supra, or Notice
2001-63, supra.4 In Notice 2001-61, supra, respondent listed
specific categories of taxpayers who were affected by the
September 11, 2001, terrorist attack. They include: (1)
Taxpayers whose principal residence is in one of the five New
4
Notice 2001-68, 2001-47 I.R.B. 504, granted taxpayers
additional relief, including postponing for 60 days the deadline
to file a Tax Court petition that would otherwise be due between
Dec. 1 and Dec. 31, 2001; however, it did not expand the
definition of “affected taxpayer”.
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York counties of Bronx, Kings, New York (boroughs of Brooklyn and
Manhattan), Queens, and Richmond, or is in Arlington County,
Virginia, where the Pentagon is located; (2) victims of the crash
(including those on a plane and those on the ground) of the four
commercial jet airplanes hijacked on September 11, 2001; (3) all
workers assisting in the relief activities in the covered
disaster areas and in Pennsylvania; (4) taxpayers who work in the
presidentially declared disaster area; and (5) taxpayers who have
difficulty in filing returns or making payments because of
disruptions in the transportation and delivery of documents by
mail or private delivery services resulting from the terrorist
attack. Petitioners’ activities in Hawaii do not qualify them as
relief workers assisting in a covered disaster area (category
(3)). Thus, petitioners do not qualify as affected taxpayers
under any of these categories.
Respondent also provided to another category of taxpayers a
postponement of up to 14 days of certain tax deadlines, including
filing a Tax Court petition. Notice 2001-63, supra, states in
pertinent part:
This notice provides additional tax relief under
sections 6081, 6061, and 7508A for taxpayers who,
regardless of their location, are continuing to
experience difficulties in meeting their filing and tax
payment requirements on account of events related to
the September 11, 2001, terrorist attack. The Internal
Revenue Service has determined that the due date for
all federal tax obligations falling between September
10, 2001, and September 24, 2001, is postponed to
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September 24, 2001. This postponement of time covers
the filing of * * * any * * * federal tax documents.
Notice 2001-63, supra, does not provide relief to
petitioners because it extended the time for filing Federal tax
documents only to September 24, 2001; the 90th day after the
mailing of the deficiency notice to petitioners was September 25,
2001, and petitioners mailed their petition on October 3, 2001.
Thus, Notice 2001-63, supra, does not apply here.
We conclude that petitioners’ petition was not timely
filed.5 Thus, we will grant respondent’s motion to dismiss for
lack of jurisdiction.
Accordingly,
An order will be entered
granting respondent’s motion
to dismiss for lack of
jurisdiction.
5
See El Khouri v. Commissioner, T.C. Memo. 2002-170.