Opinion
7822-22
10-05-2022
HIGINIO MENDOZA, JR., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On May 4, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that no notice of deficiency was issued to petitioner for tax years 2018 through 2022 and no notice of determination concerning collection action was issued to petitioner for tax years 2018 through 2022, nor has respondent made any other determination with respect to tax years 2018 through 2022 that would confer jurisdiction on the Court.
On April 11, 2022, petitioner filed the petition. On April 13, 2022, petitioner filed a first amendment to petition. Petitioner did not attach a copy of a notice of deficiency for tax years 2018 through 2022 or a notice of determination for tax years 2018 through to his petition.
This Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the issuance by the Commissioner of a valid notice of deficiency to the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Frieling v. Commissioner, 81 T.C. 42, 46 (1983). The notice of deficiency has been described as "the taxpayer's ticket to the Tax Court" because, without it, there can be no prepayment judicial review by this Court of the deficiency determined by the Commissioner. Mulvania v. Commissioner, 81 T.C. 65, 67 (1983).
Similarly, this Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330. I.R.C. sec. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492, 498 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer have requested a hearing before the IRS Office of Appeals within the 30-day period specified in section 6320(a) or 6330(a), and calculated with reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 or Final Notice of Intent To Levy and Notice of Your Right to a Hearing.
Other types of IRS notices which may form the basis for a petition to the Tax Court, likewise under statutory prescribed parameters, include a Notice of Final Determination Concerning Your Request for Relief From Joint and Several Liability, a Notice of Final Determination Not To Abate Interest, a Notice of Determination of Worker Classification, a Notice of Certification of Your Seriously Delinquent Federal Tax Debt to the State Department, and a Notice of Final Determination Concerning Whistleblower Action. No pertinent claims involving I.R.C. sections 6015, 6404(h), 7436, 7345, or 7623, respectively, have been implicated here.
On May 5, 2022, petitioner filed an Objection to Motion to Dismiss for Lack of Jurisdiction, in which he does not dispute the jurisdictional allegations set forth in respondent's motion. Instead, petitioner argues the merits of his case.
Petitioner has not provided a copy of a notice of deficiency or notice of determination that would confer jurisdiction on this Court. Because no notice of deficiency or notice of determination sufficient to confer jurisdiction on this Court has been sent to petitioner, this case must be dismissed for lack of jurisdiction.
Section 6673(a)(1) authorizes the Tax Court to require a taxpayer to pay to the United States a penalty not in excess of $25,000 whenever it appears that proceedings have been instituted or maintained by the taxpayer primarily for delay or that the taxpayer's position in such proceeding is frivolous or groundless. See Wnuck v. Commissioner, 136 T.C. 498, 513-514 (2011) (imposing a section 6673 penalty for tax protester arguments). Considering the allegations in this case in the petition, including petitioner's Request for Judicial Notice, Motion to Take Judicial Notice, and petitioner's Objection to Motion to Dismiss for Lack of Jurisdiction, petitioner's position herein is frivolous and groundless. Although the Court will not impose a penalty on petitioner in this case, he is admonished that the Court will strongly consider imposing such a penalty should he return to the Court and advance similar arguments in the future.
Upon due consideration, it is
ORDERED that petitioner's Request for Judicial Notice, filed April 14, 2022, is denied. It is further
ORDERED that petitioner's Motion to Take Judicial Notice, filed April 20, 2022, is denied. It is further
ORDERED that petitioner's Exhibit(s), filed May 18, 2022, and petitioner's Certificate of Service, filed May 18, 2022, are recharacterized as petitioner's Letters. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.