Karson Kaebel v. CIR ( 2019 )

Case: 18-60683 Document: 00514976590 Page: 1 Date Filed: 05/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-60683 FILED
Summary Calendar May 30, 2019
Lyle W. Cayce
Clerk
KARSON C. KAEBEL,
Petitioner - Appellant
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent - Appellee
Appeal from a Decision of the
United States Tax Court
TC No. 916-18
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
Karson Kaebel appeals an order of the Tax Court dismissing for lack of
jurisdiction his petition for review regarding his unpaid tax liabilities. Kaebel
argues that the Internal Revenue Service (“IRS”) is attempting to levy against
him without issuing the required notice. See 26 U.S.C. § 6330.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-60683 Document: 00514976590 Page: 2 Date Filed: 05/30/2019
No. 18-60683
The jurisdiction of the Tax Court is a question of law that we review de
novo. Terrell v. Comm’r, 625 F.3d 254, 259 (5th Cir. 2010) (citing Ferguson v.
Comm’r, 568 F.3d 498, 502 (5th Cir. 2009)). The Tax Court has jurisdiction
over a petition only if the taxpayer files the petition within 90 days after the
notice of deficiency is mailed. 26 U.S.C. § 6213(a); Ward v. Comm’r, 907 F.2d
517, 521 (5th Cir. 1990). “[W]hether the IRS properly sent notice to the
taxpayer[] . . . thereby starting the ninety-day response period, is a question of
fact that we review for clear error.” Terrell, 625 F.3d at 259 (citing Ward, 907
F.2d at 521). The Tax Code does not require actual receipt of the notice of
deficiency, rather the notice “shall be sufficient” if mailed to the taxpayer’s last
known address. 26 U.S.C. § 6212(b)(1); Jones v. United States, 889 F.2d 1448,
1450 (5th Cir. 1989).
Kaebel’s petition to the Tax Court claimed that he never received a notice
of deficiency for the years 2005–2010. The IRS moved to dismiss for lack of
jurisdiction, providing copies of the notices of deficiency and United States
Postal Forms 3877 showing that the notices were sent by certified mail to
Kaebel’s last known address. The record reflects that all six of the contested
notices were mailed from December 13, 2010 to June 3, 2013. Accordingly, the
90-day deadline to file a petition expired, at the latest, on September 3, 2013.
Kaebel did not file his petition until January 17, 2018. We find no clear error
in the Tax Court’s determination that the notices of deficiency were properly
mailed and that Kaebel’s petition was filed long after the deadline expired. See,
e.g., Haddix v. Comm’r, 665 F. App’x 378, 381-82 (5th Cir. 2016) (“[Taxpayers],
as the ones invoking the Tax Court’s jurisdiction, [have] the burden of proving
the Tax Court’s jurisdictional prerequisites by a preponderance of the
evidence[.]”). AFFIRMED.
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