[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 06-12046 SEPTEMBER 21, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
U.S. TAX COURT No. 23304-05
OLIVER DAVID SALERY,
Petitioner-Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
United States Tax Court
_________________________
(September 21, 2006)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Oliver David Salery appeals pro se from the United States Tax
Court’s dismissal of his pro se petition challenging the determination of the
Commissioner of the Internal Revenue Service (“IRS”) that he was liable for
income tax deficiencies and penalties for the 2001 tax year.1 Salery argues that the
Tax Court erred by failing to rule on the merits of his petition, committed fraud,
and was biased or prejudiced against him. The IRS responds that the Tax Court
properly dismissed Salery’s petition for lack of subject matter jurisdiction because
it was untimely as to the notice of deficiency for the 2001 tax year, and there was
no other basis for jurisdiction.
We review questions of subject matter jurisdiction de novo. Palmer v.
Braun, 376 F.3d 1254, 1257 (11th Cir. 2004). A taxpayer must file a petition
challenging an income tax deficiency within 90 days after the notice of deficiency
is mailed to the taxpayer’s last known United States address. 26 U.S.C. §§
6212, 6213(a). According to this statute, the “timely filing of such a petition is a
jurisdictional prerequisite for a suit in the tax court.” Pugsley v. Comm’r of
Internal Revenue, 749 F.2d 691, 692 (11th Cir. 1985). Thus, where the petition is
untimely, the case should be dismissed. Id. at 692-94; Myles v. Comm’r, I.R.S.,
719 F.2d 373, 373-74 (11th Cir. 1983). Upon dismissal of a late petition for lack
of subject matter jurisdiction, the taxpayer’s only remedy is to pay the deficiency
1
Salary mentions, for the first time on appeal, tax years 2000 and 2002. We find that he
waived any arguments regarding the 2000 and 2002 tax years by not raising them in the first
instance in the Tax Court.
2
and bring a refund suit in the United States District Court. See Sicari v. C.I.R., 136
F.3d 925 (2d Cir. 1988).
The record reflects that the notice of deficiency for the 2001 tax year was
mailed to Salery’s last known Florida address in November 2003, but he did not
file his petition challenging that deficiency until December 2005, more than two
years later.2 Therefore, the district court correctly dismissed Salery’s petition for
lack of subject matter jurisdiction.
AFFIRMED.
2
The address listed on the notice of deficiency, sent by certified mail, is the same address
indicated on Salery’s pleadings in this case.
3