United States Tax Court

162 T.C. No. 1

DOUGLAS DODSON AND REBECCA DODSON,

Petitioners

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

—————

Docket No. 3657-22. Filed January 3, 2024.

—————

R mailed a notice of deficiency (first notice) to Ps

specifying a deadline for filing a petition to redetermine the 

determined deficiency. The specified deadline was over one 

year from the date on which R mailed the first notice. One 

day later, R mailed a second notice of deficiency (second 

notice) to Ps that purported to correct the deadline for filing 

a petition. Ps filed their Petition for review of the first 

notice before the petition filing deadline specified in the 

first notice but after the petition filing deadline specified in 

the second notice and after the 90-day period for filing a 

petition provided by the first sentence of I.R.C. § 6213(a).

Held: Ps timely filed their Petition pursuant to the 

last sentence of I.R.C. § 6213(a), and we have jurisdiction 

over this case.

—————

David R. Jojola and Derek W. Kaczmarek, for petitioners.

Vivian Bodey, Lewis A. Booth, Estevan D. Fernandez, and Sharmeen 

Ladhani, for respondent.

Served 01/03/24
2

OPINION

MARVEL, Judge: This case is before us for disposition of 

respondent’s Motion to Dismiss for Lack of Jurisdiction (Motion to 

Dismiss), filed June 29, 2023. Respondent contends that we lack 

jurisdiction under section 6213(a)1 because petitioners filed their 

Petition more than 90 days after respondent mailed petitioners a notice 

of deficiency (first notice) on October 7, 2021, and a corrected notice of 

deficiency (second notice) on October 8, 2021. Petitioners argue that we 

nonetheless have jurisdiction pursuant to the last sentence of section 

6213(a), which provides: “Any petition filed with the Tax Court on or 

before the last date specified for filing such petition by the Secretary in 

the notice of deficiency shall be treated as timely filed.” Resolution of 

the parties’ contentions requires us to decide, as a matter of first 

impression, whether the last sentence of section 6213(a) requires us to

treat a taxpayer’s petition as timely filed when it is filed (1) before the 

petition filing date specified in the notice of deficiency that forms the 

basis for the taxpayer’s petition but (2) after the date specified for filing 

in a later-issued corrected notice of deficiency and (3) after the 90-day 

period for filing a petition provided by the first sentence of section

6213(a). For the reasons stated herein, we decide this issue in favor of 

petitioners and treat their Petition as timely filed under the last 

sentence of section 6213(a).

Background

On October 7, 2021, respondent mailed the first notice to 

petitioners for their 2017 taxable year. Tracking information for two 

copies of the first notice reflects the delivery of both copies in 

Alamogordo, New Mexico, on October 12, 2021, by the U.S. Postal 

Service (USPS). The first notice bears a stamped date specifying

December 5, 2022, as the last day to file a petition. Petitioners filed 

their Petition on March 3, 2022. The Petition attached a copy of the first 

notice and no other notice of deficiency. Petitioners resided in New 

Mexico when they filed their Petition. Unless otherwise agreed by the 

parties in writing, venue for an appeal is the U.S. Court of Appeals for 

the Tenth Circuit. See § 7482(b)(1)(A), (2).

Respondent has also produced the second notice, which he mailed 

to petitioners on October 8, 2021, and which purports to be a corrected

1 Unless otherwise indicated, statutory references are to the Internal Revenue 

Code, Title 26 U.S.C., in effect at all relevant times.
3

version of the first notice. The second notice bears a stamped date 

specifying January 6, 2022, as the last day to file a petition. The second 

notice is accompanied by a cover sheet stating: “PREVIOUS NOTICE 

SENT WITH INCORRECT DATE. CORRECTED NOTICE WITH 

CORRECT DATES.” The second notice does not differ from the first 

notice in any other material respect.2 Petitioners state that they did not 

receive the second notice. Petitioners have produced tracking

information for two copies of the second notice reflecting the departure 

of the notice copies from USPS’s El Paso, Texas, distribution center on 

October 13, 2021, without any indication that USPS ever delivered them 

to petitioners. Petitioners filed their Petition in this case on March 3, 

2022, which is 147 days after respondent mailed the first notice and 146 

days after respondent mailed the second notice.

Discussion

We are a court of limited jurisdiction, and we may exercise 

jurisdiction only to the extent expressly provided by statute. See Naftel 

v. Commissioner, 85 T.C. 527, 529 (1985). We have jurisdiction to 

determine whether we have jurisdiction over a particular case. See 

Stewart v. Commissioner, 127 T.C. 109, 112 (2006) (citing Brannon’s of 

Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1002 (1978)). Regardless 

of the parties’ views as to our jurisdiction, we must determine for 

ourselves whether we have jurisdiction. See Charlotte’s Off. Boutique, 

Inc. v. Commissioner, 121 T.C. 89, 102 (2003), supplemented by T.C. 

Memo. 2004-43, aff’d, 425 F.3d 1203 (9th Cir. 2005).

Our jurisdiction in a case for the redetermination of a deficiency 

depends on the issuance of a valid notice of deficiency to the taxpayer

and the timely filing of a petition by the taxpayer. See Monge v. 

Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 

T.C. 142, 147 (1988); see also Sanders v. Commissioner, No. 15143-22, 

161 T.C. (Nov. 2, 2023); Hallmark Rsch. Collective v. Commissioner, 159 

T.C. 126 (2022). Generally, the petition must be filed within 90 days 

after the notice is mailed (not counting Saturday, Sunday, or a legal 

holiday in the District of Columbia as the last day).3 See Sanders v. 

2 Certain pages appear in a different order in the second notice in comparison 

to the first notice.

3 Section 6213(a) provides a 150-day filing period for a notice of deficiency 

addressed to a person outside the United States, but that provision is not at issue here 

because both the first and second notices were addressed to petitioners at their New 

Mexico residence.
4

Commissioner, No. 25868-22, 160 T.C., slip op. at 5 (June 20, 2023). This 

filing deadline is jurisdictional, and equitable tolling does not apply. See

Hallmark Rsch. Collective, 159 T.C. at 166–67.

The last sentence of section 6213(a), which was enacted in the 

Internal Revenue Service Restructuring and Reform Act of 1998 (RRA), 

Pub. L. No. 105-206, § 3463(b), 112 Stat. 685, 767, provides: “Any 

petition filed with the Tax Court on or before the last date specified for 

filing such petition by the Secretary in the notice of deficiency shall be 

treated as timely filed.” RRA § 3463(a), 112 Stat. at 767, is an uncodified 

provision of law stating that the “Secretary of the Treasury or the 

Secretary’s delegate shall include on each notice of deficiency under 

section 6212 of the Internal Revenue Code of 1986 the date determined 

by such Secretary (or delegate) as the last day on which the taxpayer 

may file a petition with the Tax Court.” See Smith v. Commissioner, 114 

T.C. 489, 491 (2000), aff’d, 275 F.3d 912 (10th Cir. 2001). Both provisions

apply to notices mailed after December 31, 1998. RRA § 3463(c), 112

Stat. at 767.

Section 6212(d) permits the Secretary, with the consent of the 

taxpayer, to rescind any notice of deficiency mailed to the taxpayer. 

Among other consequences, a rescinded notice “shall not be treated as a 

notice of deficiency for purposes of . . . section 6213(a)” and “the taxpayer 

shall have no right to file a petition with the Tax Court based on such 

notice.” § 6212(d). Rev. Proc. 98-54, § 5.07, 1998-2 C.B. 529, 530, states

that a “properly executed Form 8626 (or a document as provided in 

section 5.06 of this revenue procedure) is the only way that a notice of 

deficiency may be rescinded.”4

The Petition in this case attached the first notice. The first notice 

unambiguously determines a deficiency against petitioners and is 

therefore valid. See Dees v. Commissioner, 148 T.C. 1, 6 (2017) (“[I]f the 

notice is sufficient to inform a reasonable taxpayer that the 

Commissioner has determined a deficiency, our inquiry [as to the 

notice’s validity] ends there; the notice is valid.”). Petitioners filed their 

Petition before December 5, 2022, the last day specified in the first 

notice for filing a petition in this Court. This is sufficient to comply with 

the last sentence of section 6213(a), which in the words of the Tenth 

4 Rev. Proc. 98-54, § 5.06, 1998-2 C.B. at 530, states that “[a]lthough use of 

Form 8626 is preferred,” if certain enumerated criteria are met, “a document that 

reflects agreement by the taxpayer and the [Internal Revenue] Service to rescind the 

notice of deficiency, pursuant to [section] 6212(d), may be used in lieu of Form 8626.”
5

Circuit means that “if a notice indicates a petition date that is more than 

90 days after the date of mailing, that date controls.” Smith v. 

Commissioner, 275 F.3d at 916.

The record discloses no consent by petitioners to a rescission of 

the first notice in any manner, let alone in a form complying with Rev. 

Proc. 98-54. Absent a rescission with petitioners’ consent, the first 

notice continued to “be treated as a notice of deficiency for purposes 

of . . . section 6213(a),” see § 6212(d), including for purposes of the last 

sentence of section 6213(a). Accordingly, respondent’s issuance of the 

second notice without petitioners’ consent did not have the effect of 

rescinding the first notice, either in whole or in part. See Hanashiro v. 

Commissioner, T.C. Memo. 1999-78, slip op. at 10 (“The rescission of a 

notice of deficiency requires mutual consent by the Commissioner and 

the taxpayer, and such mutual consent must be objectively apparent.”); 

Slattery v. Commissioner, T.C. Memo. 1995-274, 69 T.C.M. (CCH) 2953, 

2956 (“Clearly, the statute requires mutual consent by the Secretary and 

the taxpayer to effect a rescission of a notice of deficiency. We know of 

no authority deeming a notice of deficiency rescinded in absence of a 

formal rescission.” (Footnote omitted.)). As soon as respondent mailed 

the first notice to petitioners on October 7, 2021, respondent could no 

longer unilaterally rescind the first notice.

The restriction on nonconsensual rescissions found in section

6212(d), unlike the restriction on further deficiency letters found in 

section 6212(c), is not limited to situations where the Secretary

determines an additional deficiency of income tax (or certain other 

taxes) for the same taxable year.5 Our straightforward conclusion,

derived from the plain text of sections 6213(a) and 6212(d), is that we 

are required to treat the Petition as timely filed. Accordingly, we will 

do so. This is not a case where a taxpayer petitions us for 

redetermination of a deficiency in a notice that purports to correct a 

prior notice of deficiency, a circumstance for which we express no view 

on the application of the last sentence of section 6213(a).

5 Section 6212(c) does not have any bearing on the outcome in this case because 

the second notice, in relation to the first notice, did not purport to determine any 

additional deficiency of income tax for the same taxable year. See Richardson v. 

Commissioner, 76 T.C. 512, 530 (1981) (“Section 6212(c) restricts [the Commissioner’s]

right to determine an additional deficiency when a timely petition has been filed with 

the Tax Court.” (Emphasis added.)), aff’d, 693 F.2d 1189 (5th Cir. 1982). Instead, as 

its cover sheet makes clear, the second notice purported only to modify the date 

specified for filing a petition in this Court.
6

Respondent makes a number of arguments to resist this 

straightforward conclusion, but none of them is availing. Respondent 

relies on our holdings in Smith and in Rochelle v. Commissioner, 116 

T.C. 356 (2001), aff’d per curiam, 293 F.3d 740 (5th Cir. 2002). This 

reliance is misplaced.

In Smith, 114 T.C. at 490, we considered the validity of a notice 

of deficiency that did not specify a date in the section of the notice titled 

“Last Day to File a Petition With the United States Tax Court.” Neither 

did the notice specify a date in the section of the notice titled “Letter 

Date.” Id. Within the 90-day period for filing a petition, the Internal 

Revenue Service (IRS) sent a letter to the taxpayers’ counsel providing 

the missing dates and the taxpayers timely filed their petition. Id. We 

held that “where [the IRS] failed to put the petition date on the notice, 

and [the taxpayers] nevertheless received the notice and filed a petition 

in a timely manner, such notice was valid.” Id. at 492. While the notice 

of deficiency did not satisfy the requirement of RRA § 3463(a) that it 

specify the last day on which the taxpayer may file a petition, we 

reasoned that the failure did not prejudice the taxpayers because the 

IRS “mailed, and [the taxpayers] received, the notice prior to the 

expiration of the period of limitations. Moreover, [the taxpayers] filed a 

petition in a timely manner.” Smith, 114 T.C. at 490. We specifically 

noted that Congress did not specify what consequences should follow 

from the IRS’s failure to provide the last day for filing a petition in the 

notice of deficiency. Id.

The Tenth Circuit affirmed our decision in Smith, concluding that 

the notice of deficiency was valid because the taxpayers were not 

prejudiced. Smith v. Commissioner, 275 F.3d at 915–16. It observed 

that the taxpayers received their notice of deficiency well in advance of 

the deadline for filing a petition; filed their petition in a timely manner; 

did not claim that the notice’s failure to include the information 

impaired their ability to file a petition; and received assistance from the 

IRS in determining the last day for filing a petition. Id. In addition the

Tenth Circuit stated:

The Senate Finance Committee’s report on the [RRA]

states that the purpose of [RRA] section 3463 is to ensure 

that taxpayers do not miss their filing deadlines because of 

simple miscalculation: “The Committee believes that 

taxpayers should receive assistance in determining the 

time period within which they must file a petition in the 

Tax Court and that taxpayers should be able to rely on the 
7

computation of that period by the IRS.” S. Rep. 105–174, 

at 90 (1998), quoted in Rochelle v. Comm’r, 116 T.C. 356, 

360, 2001 WL 548942 (2001). The statute further advances 

this purpose by providing that, if a notice indicates a 

petition date that is more than 90 days after the date of 

mailing, that date controls. Pub.L. 105–206, § 3463(b), 112 

Stat. 685, 767.

Id.

In Rochelle, 116 T.C. at 358, the taxpayer and the Commissioner 

each moved to dismiss the case for lack of jurisdiction, albeit on different 

grounds. The taxpayer argued that the notice of deficiency, which did 

not specify the last day for filing a petition, was invalid. Id. at 357–58. 

The Commissioner argued that the taxpayer’s petition, which the 

taxpayer mailed 143 days after the mailing of the notice of deficiency,

was untimely filed. Id. at 358. We concluded that the notice was valid. 

Id. at 358–61. We observed the taxpayer was not prejudiced by the 

notice’s failure to specify the last day for filing a petition because “[t]he 

notice clearly stated that the petition had to be filed within 90 days of 

the mailing of the notice,” id. at 360, “the necessity of filing a timely 

petition was emphasized in underscored type,” id., and the taxpayer did 

not “claim that his failure to timely file his petition was a product of a 

miscalculation of the filing period,” id. at 361. We also concluded that, 

despite the last sentence of section 6213(a), the taxpayer did not timely 

file his petition because the last sentence of section 6213(a) “requires the 

petition to be filed on or before the last date specified in the notice of 

deficiency. Because the last date for filing a timely Tax Court petition 

was not specified by the deficiency notice in this case, the petition could 

not be filed on or before any such date.” Rochelle, 116 T.C. at 362

(emphasis added).

Smith and Rochelle have no application here. Smith concerned 

only the validity of a notice of deficiency, not the timeliness of a petition 

filing. The first notice in this case, unlike the notices in Smith and 

Rochelle, expressly stated the last day petitioners could file a petition, a 

distinction we acknowledged in Rochelle. The last sentence of section 

6213(a) expressly provides the treatment of a petition filed pursuant to 

a notice of deficiency that specifies a petition filing date. In contrast, 

neither RRA § 3463(a) nor any other law expressly addresses the 

treatment of a petition filed pursuant to a notice of deficiency lacking a 

petition filing date, the situation we confronted in Smith and Rochelle.
8

Congress could have used narrower means to advance the 

purposes motivating the enactment of the last sentence of section 

6213(a), but it did not. The last sentence of section 6213(a) advances the 

avowed congressional purpose of enabling taxpayers to rely on the IRS’s 

computation of the period for filing a petition, which is more than 

enough legislative history for us to hang our hat on, proverbially 

speaking. It is not our role to question Congress’s choice of means in 

this regard. See Rochelle, 116 T.C. at 368 (Chabot, J., dissenting) (“It is 

not at all unusual for the Congress to act more broadly than the confines 

of the problem described in the legislative history; the Congress has 

done so in many different areas of the tax law.”). Likewise, we see no 

warrant in the statutory text for considering whether petitioners are 

represented by counsel or prejudiced by the first notice, as respondent 

would have us do.

Respondent repeatedly characterizes the petition filing date on 

the first notice as an “obvious mistake,” but this characterization is 

misleading. As recognized by the Tenth Circuit, a taxpayer may timely 

file a deficiency petition by meeting the requirements of the first 

sentence of section 6213(a) or, alternatively, the last sentence of section 

6213(a). See Smith v. Commissioner, 275 F.3d at 916 (“[I]f a notice 

indicates a petition date that is more than 90 days after the date of 

mailing, that date controls.”). Here, the petition filing date on the first 

notice had independent legal effect, and petitioners were permitted to 

rely on it regardless of whether they retained counsel and regardless of 

whether prejudice would result from applying another deadline. 

Respondent’s position in this case attempts to create uncertainty about 

the meaning of the last sentence of section 6213(a) where there is none.

Conclusion

Petitioners timely filed their Petition in accordance with section 

6213(a). Accordingly, we have jurisdiction over this case, and we will 

deny respondent’s Motion to Dismiss.

We have considered all of the parties’ arguments and, to the 

extent they are not discussed herein, find them to be irrelevant, moot, 

or without merit.

To reflect the foregoing,

An appropriate order will be issued.