T.C. Memo. 2002-262
UNITED STATES TAX COURT
LARRY LEE SCHAKE, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 3043-02L. Filed October 10, 2002.
Larry Lee Schake, pro se.
Lisa K. Hartnett and Richard Charles Grosenick, for
respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This matter is before the Court
on respondent’s Motion To Dismiss For Lack Of Jurisdiction on the
ground that the petition was not filed within the 30-day period
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prescribed in section 6330(d)(1)(A).1 As explained below, we
shall grant respondent’s motion to dismiss.
Background
On or about April 17, 2000, Larry Lee Schake (petitioner)
filed with respondent a Form 1040EZ, Income Tax Return for Single
and Joint Filers With No Dependents, for the taxable year 1999
(petitioner’s 1999 return). Petitioner listed his address on his
1999 return as P.O. Box 43, Amherst, Nebraska 68812 (the Amherst
address). Petitioner’s 1999 return is the most recently filed
return as relevant herein.
On September 11, 2000, respondent mailed to petitioner a
Notice Of Federal Tax Lien Filing And Your Right To A Hearing
Under IRC 6320 with regard to his income tax liability for 1993.
Respondent mailed the notice to petitioner at the Amherst
address.
On October 2, 2000, petitioner mailed to respondent a
request for an administrative hearing on which he twice listed
the Amherst address as his return address.2 On July 6, 2001,
petitioner attended an administrative hearing at respondent’s
Appeals Office in Omaha, Nebraska.
On December 11, 2001, respondent sent to petitioner by
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended.
2
Likewise, the envelope in which petitioner mailed his
request for a hearing reflected the Amherst address.
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certified mail a Notice Of Determination Concerning Collection
Action(s) Under Section 6320 and/or 6330. Respondent mailed the
notice to petitioner at the Amherst address. The notice of
determination informed petitioner that if he wanted to dispute
respondent’s determination in court, then he must file a petition
with the Tax Court “within 30 days from the date of this letter.”
On February 7, 2002, the Court received and filed a Petition
for Lien or Levy Action Under Code Sections 6320(c) or 6330(d).
The petition arrived at the Court in a properly addressed
envelope bearing a U.S. Postal Service postmark date of January
11, 2002. The petition, as well as the envelope in which the
petition was mailed, lists petitioner’s address as the Amherst
address.
As indicated, respondent moved to dismiss the petition for
lack of jurisdiction on the ground the petition was not timely
filed. Petitioner filed an objection to respondent’s motion to
dismiss. Although the objection does not list petitioner’s
address, the envelope in which the objection was mailed to the
Court lists the Amherst address.
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Petitioner’s objection states in pertinent part as follows:
Enclosed postal receipt shows that the U.S. Postal
service had difficulty in contacting Mr. Schake.[3]
Therefore notice was not sent to my current address.
It was sent to my mother’s address, and I didn’t
receive the notice until Jan 8th 2002.
I called the court and they said I had time to file for
a hearing. At this time I was living in the country
sixteen miles for the nearest postal service. When it
was time to mail in the petition there was a severe
winter storm and the roads were closed Jan. 9th and
10th. I contacted the court and they allowed me a
grace period due to the impossible road conditions.
Respondent filed a response to petitioner’s objection
asserting that the notice of determination was mailed to
petitioner’s last known address.
This matter was called for hearing at the Court’s motions
session held in Washington, D.C. Counsel for respondent appeared
at the hearing and offered argument in support of the motion to
dismiss. There was no appearance by or on behalf of petitioner.
Discussion
The Tax Court is a court of limited jurisdiction, and we may
exercise our jurisdiction only to the extent authorized by
Congress. Naftel v. Commissioner, 85 T.C. 527, 529 (1985).
The Court’s jurisdiction under sections 6320 and 6330 depends on
the issuance of a notice of determination and the filing of a
timely petition for review. See Sarrell v. Commissioner, 117
3
No postal receipt or other exhibit was enclosed with, or
attached to, petitioner’s objection as received by the Court.
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T.C. 122, 125 (2001); Offiler v. Commissioner, 114 T.C. 492, 498
(2000).
When respondent issues a notice of determination to a person
following an administrative hearing regarding a lien or levy
action, sections 6320(c) (by way of cross-reference) and
6330(d)(1) provide that the person will have 30 days following
the issuance of such notice to file a petition for review with
the Tax Court or the Federal District Court, as appropriate.4
Offiler v. Commissioner, supra at 498; see McCune v.
Commissioner, 115 T.C. 114 (2000) (dismissing a petition for lack
of jurisdiction where the taxpayer failed to file his initial
petition for review with the Federal District Court within the
30-day period).
4
Sec. 6330(d)(1) provides:
SEC. 6330(d). Proceeding After Hearing.--
(1) Judicial review of determination.-–The person
may, within 30 days of a determination under this
section, appeal such determination--
(A) to the Tax Court (and the Tax Court shall
have jurisdiction with respect to such matter); or
(B) if the Tax Court does not have
jurisdiction of the underlying tax liability, to a
district court of the United States.
If a court determines that the appeal was to an
incorrect court, a person shall have 30 days after the
court determination to file such appeal with the
correct court.
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Petitioner challenges the validity of the notice of
determination on the ground that it was not mailed to his
“correct address”. The record shows otherwise. Specifically,
the notice of determination was mailed to the same address that
petitioner listed as his return address both on his request for
an administrative hearing and in the petition that he filed with
the Court. Petitioner has not identified any other address to
which the notice of determination should have been mailed.
Accordingly, we conclude that the notice of determination was
mailed to petitioner at his last known address. See secs.
6320(a)(2)(C), 6330(a)(2)(C); see also Abeles v. Commissioner, 91
T.C. 1019, 1035 (1988); sec. 301.6212-2, Proced. & Admin. Regs.
Under the circumstances, the issue remaining for decision is
whether the petition was timely filed. The record shows that
respondent mailed the notice of determination to petitioner on
December 11, 2001. Consequently, the 30-day period for filing a
timely petition with the Court expired on Thursday, January 10,
2002, a date that was not a legal holiday in the District of
Columbia. The petition in this case was received and filed by
the Court on February 7, 2002, and arrived at the Court in an
envelope bearing a U.S. Postal Service postmark date of January
11, 2002. Because the petition was mailed to the Court one day
after the expiration of the 30-day filing period, it follows that
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we must dismiss this case for lack of jurisdiction. See McCune
v. Commissioner, supra.
As a final matter, petitioner asserts that he was unable to
file a timely petition with the Court due to inclement weather in
Nebraska and that he was informed by Court personnel that he
would be given a grace period to file his petition. It is well
settled that the Court has no authority to extend the statutory
period for filing a timely 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); see Ogden v. Commissioner, T.C. Memo. 2002-
15 (holding that the statutory periods in section 6330 are
jurisdictional and cannot be extended); cf. Kennedy v.
Commissioner, 116 T.C. 255, 262 (2001) (noting that the
Commissioner may not waive the time restrictions imposed by
section 6330). Further, petitioner has made no showing
whatsoever, nor does the record suggest, that the filing deadline
for his petition was postponed by reason of a presidentially-
declared disaster related to inclement weather. See sec. 7508A
and sec. 301.7508A-1, Proced. & Admin. Regs., regarding the
Commissioner’s authority to postpone certain deadlines by reason
of presidentially declared disasters or terroristic or military
actions.
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To reflect the foregoing,
An order of dismissal for
lack of jurisdiction will be
entered.