                        T.C. Memo. 2011-217



                      UNITED STATES TAX COURT



               MURRAY S. FRIEDLAND, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8816-11W.              Filed September 7, 2011.



     Murray S. Friedland, pro se.

     Navid Mehrjou, for respondent.



                        MEMORANDUM OPINION


     PANUTHOS, Chief Special Trial Judge:     This case is before

the Court on respondent’s motion to dismiss for lack of

jurisdiction.   The issues before the Court are:   (1) Whether

petitioner timely filed a petition disputing the Whistleblower

Office’s determination to deny him an award and (2) if petitioner
                               - 2 -

timely filed a petition, whether his claim meets the monetary

threshold requirement of section 7623(b).1

                            Background

     Petitioner resided in New York at the time he filed the

petition.

     On or about January 24, 2011, petitioner filed a Form 211,

Application for Award for Original Information, with respondent’s

Whistleblower Office.   The Whistleblower Office denied

petitioner’s whistleblower claim in a letter dated March 3, 2011,

(the March 3 determination).   Petitioner acknowledged receipt of

the March 3 determination on March 11, 2011, when he called the

IRS to dispute denial of his claim.    The Whistleblower Office

subsequently mailed two additional letters to petitioner, dated

March 23 and April 11, 2011, both of which affirmed the March 3

determination.   The March 23, 2011, letter responded to a letter

from petitioner dated March 14, 2011, asking the IRS to

reconsider the March 3 determination denying his whistleblower

claim.   The April 11, 2011, letter responded to a telephone call

from petitioner.2   The petition arrived at the Court and was



     1
      Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect at all relevant times, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
     2
      The record does not reflect whether the Apr. 11, 2011,
letter was in response to petitioner’s Mar. 11, 2011, phone call
or another phone call petitioner made to the IRS.
                                 - 3 -

filed April 13, 2011.     The petition was sent in a FedEx Express

envelope bearing a FedEx Standard Overnight label with a ship

date of April 12, 2011.

                              Discussion

     To invoke the Court’s jurisdiction, an individual must

appeal the amount or denial of an award to this Court within 30

days of such a determination by the Whistleblower Office.    Sec.

7623(b)(4); Friedland v. Commissioner, T.C. Memo. 2011-90.     The

30-day period begins on the date of mailing or personal delivery

of the determination to the whistleblower at his last known

address.   Kasper v. Commissioner, 137 T.C ___, ___ (2011) (slip

op. at 14).   If the March 3 determination was mailed to

petitioner at his last known address on March 3, 2011, the 30-day

period for filing a timely petition with the Court under section

7623(b)(4) expired on April 4, 2011.3

     Respondent relies upon the March 3, 2011, date to commence

the period for petitioner to file a timely petition.    Respondent

has not offered any evidence of the date and fact of mailing.

See Kasper v. Commissioner, supra at ___ (slip op. at 14) (citing

Magazine v. Commissioner, 89 T.C. 321, 326 (1987) (with reference

to a notice of deficiency, the Commissioner must “prove by direct



     3
      The 30th day was Apr. 2, 2011, a Saturday. The final date
to petition the Tax Court in this case which was not a Saturday,
Sunday, or legal holiday was Monday, Apr. 4, 2011. See sec.
7503; Rule 25(a).
                                - 4 -

evidence the date and fact of mailing the notice to a

taxpayer”)).   However, there is some evidence of delivery of the

notice to petitioner.

     In the context of a notice of deficiency, where a taxpayer

receives actual notice without prejudicial delay and with

sufficient time to file a petition, the Court has found that the

notice is effective.    Mulvania v. Commissioner, 81 T.C. 65, 69

(1983); see also Filosa v. Commissioner, T.C. Memo. 1993-615.

Petitioner acknowledges receipt of the March 3 determination as

of March 11, 2011, when he called the IRS to dispute the

determination.   Thus we conclude that the March 3 determination

was received no later than March 11, 8 days after the purported

mailing.   Petitioner thus received actual notice and had ample

opportunity to timely file a petition.   Even if the Court were to

consider the time to file a petition to run from the date of

actual receipt (no later than March 11), the petition in this

case mailed April 12 (31 days after receipt) would still be
                               - 5 -

untimely since it is outside the 30-day period.4       See sec.

7623(b)(4).

     In his response, petitioner asserts the March 23, 2011,

letter is the “determination” and the petition was thus filed

timely.   Contrary to petitioner’s argument, however, the March 3

letter constituted the determination because it was a final

administrative decision regarding his whistleblower claim.        See

Cooper v. Commissioner, 135 T.C. 70 (2010); see also Kasper v.

Commissioner, supra at ___ (slip op. at 8); Friedland v.

Commissioner, supra.   In Friedland, we dealt with a substantially

identical situation involving multiple Whistleblower Office

letters issued to a whistleblower.     We concluded:

          Here, * * * [the whistleblower] received four
     letters from the Whistleblower Office. The first
     letter denied * * * [the whistleblower’s]
     whistleblower claim. The subsequent three letters
     merely reaffirmed the initial determination in the
     first letter. Moreover, the Whistleblower Office
     stated in a letter to petitioner that he would have
     to appeal the determination through the court
     system, not the Whistleblower Office. Accordingly,
     we find that * * * [the first Whistleblower
     Office] letter to * * * [the whistleblower]


     4
      In the notice of deficiency context, when the date of
mailing of a notice cannot be proven, some Courts of Appeals have
held that the time to file a petition in response to the notice
would begin to run from the date of receipt. Powell v.
Commissioner, 958 F.2d 53, 57 (4th Cir. 1992); McPartlin v.
Commissioner, 653 F.2d 1185, 1192 (7th Cir. 1981); Crum v.
Commissioner, 635 F.2d 895, 901 (D.C. Cir. 1980). Other Courts
of Appeals have held that if the notice was received with ample
time to file a petition, the notice was effective from the date
of mailing. Pugsley v. Commissioner, 749 F.2d 691, 692-693 (11th
Cir. 1985).
                               - 6 -

     constituted a determination within the meaning of
     section 7623(b)(4). * * *

Friedland v. Commissioner, supra.   Similarly, the March 3 letter,

the first letter in the instant case, constituted a determination

under section 7623(b)(4), and the petition in this case was not

filed timely.   See sec. 7623(b)(4); see also Kasper v.

Commissioner, supra at ___ (slip op. at 8); Friedland v.

Commissioner, supra.5

     In his response, petitioner alleges for the first time that

the Whistleblower Office erroneously advised him in writing to

appeal the denial of his claim to the Court of Federal Claims.

A review of the record shows no such written advice.6




     5
      Petitioner was also the whistleblower in Friedland v.
Commissioner, T.C. Memo. 2011-90. Pursuant to the Court’s
holding, as set forth at T.C. Memo. 2011-90, the Court entered an
order of dismissal for lack of jurisdiction in that case at
docket No. 13926-10W on Apr. 27, 2011. An examination of the
Court’s record at docket No. 13926-10W shows petitioner’s
whistleblower claim at docket No. 13926-10W is separate and
distinct from the whistleblower claim in the instant case.
     6
      It appears petitioner was advised in writing to appeal a
different whistleblower claim to the Court of Federal Claims in
docket No. 13926-10W, which is not at issue in this case.
Petitioner argues in this case that the earlier erroneous advice
regarding another whistleblower claim constitutes a “penalty”
imposed upon him which the IRS must abate pursuant to sec.
6404(f). The IRS has not assessed a penalty against petitioner.
We have no jurisdiction to abate a penalty which has not been
assessed, nor do we have jurisdiction over a failure by the IRS
to abate a penalty which has not been assessed. See sec.
6404(h). Sec. 6404(f) affords petitioner no assistance in this
case.
                                 - 7 -

     As noted in Friedland and other cases cited therein, this

Court’s jurisdiction is strictly statutory, and estoppel cannot

create jurisdiction where none exists.       We cannot expand our

jurisdiction, even where the Commissioner provided bad advice.

Friedland v. Commissioner, T.C. Memo. 2011-90 (citing Schoenfeld

v. Commissioner, T.C. Memo. 1993-303).

     On the basis of the foregoing, the Court concludes that the

petition was not timely filed.    Therefore, we need not reach the

issue of whether petitioner’s claim met the monetary threshold

requirement of section 7623(b).

     To reflect the foregoing, the Court will grant respondent’s

motion to dismiss for lack of jurisdiction.


                                              An appropriate order of

                                         dismissal will be entered.
