T.C. Memo. 2006-26
UNITED STATES TAX COURT
ROBERT MUSSELMAN AND ADRIANNE MAGD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 7170-05. Filed February 15, 2006.
Robert Musselman and Adrianne Magd, pro sese.
Loren B. Mark, for respondent.
MEMORANDUM OPINION
LARO, Judge: This case is before the Court on respondent’s
motion to dismiss for lack of jurisdiction on the ground that
petitioners failed to file their petition within the time
prescribed in section 6213(a) or 7502.1 On April 18, 2005,
1
Section references are to the applicable versions of the
(continued...)
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petitioners filed with this Court a petition for redetermination
of the deficiency reflected in a notice of deficiency that was
sent to them by certified mail on January 3, 2005.2 Respondent
mailed the notice of deficiency to petitioners’ last known
address of 13788 Woodhill Ln., Chino Hills, California 91709.
Petitioners bear the burden of proving that this Court has
jurisdiction to decide this case. See Cassell v. Commissioner,
72 T.C. 313, 317-318 (1979). It is well established that our
jurisdiction requires a valid notice of deficiency and a timely
filed petition, and we must dismiss a case in which either one or
the other is not present. Sec. 6213(a); Cross v. Commissioner,
98 T.C. 613, 615 (1992). Section 6213(a) provides that where a
notice of deficiency is addressed to a person within the United
States, the taxpayer may file with this Court a petition to
redetermine the deficiency within 90 days of the mailing of that
notice of deficiency. Section 7502(a) provides that in general,
timely mailing is treated as timely filing if a petition is
delivered to the Court by U.S. mail after the period prescribed
for its filing and the U.S. postmark date stamped on the envelope
is within the appropriate period.
1
(...continued)
Internal Revenue Code.
2
When this petition was filed, petitioners lived in Chino
Hills, California. Their petition stated that “TAXPAYER HAS
ADDITIONAL DEDUCTIONS TO CLAIM.”
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Under sections 6213(a) and 7503, the 90-day period within
which petitioners could challenge respondent’s determination in
this Court expired on April 4, 2005. The envelope in which the
petition was mailed to this Court bears no postmark date, but
petitioners did not even sign the petition until April 7, 2005,
which was 3 days after the deadline. Further, petitioners failed
to respond to respondent’s motion and do not argue that they
mailed the petition on or before the deadline. Because
petitioners failed to file their petition within the statutory
90-day period, we must grant respondent’s motion to dismiss for
lack of jurisdiction. Our decision, however, does not deprive
petitioners of their right to contest respondent’s determination
by paying the tax, filing a claim for refund, and then, if the
claim is denied, bringing a suit for refund in a U.S. District
Court or the Court of Federal Claims. Our decision instead
forecloses petitioners from contesting respondent’s determination
in this suit. See Budlong v. Commissioner, 58 T.C. 850, 854 n.2
(1972).
Accordingly,
An order of dismissal will be
entered.