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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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.

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
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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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3 No postal receipt or other exhibit was enclosed with, or

attached to, petitioner’s objection as received by the Court.

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
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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.

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). 
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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 presidentiallydeclared 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.