Opinion
18450-22L
11-29-2022
JEFFREY B. NIX, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge
On October 14, 2022, respondent filed in the above-docketed case a Motion to Dismiss for Lack of Jurisdiction, on the ground that no notice of deficiency, as authorized by section 6212 and required by section 6213(a) of the Internal Revenue Code (I.R.C.) to form the basis for a petition to this Court, had been sent to petitioner with respect to taxable years 2013, 2014, and 2015, nor had respondent made any other determination with respect to petitioner's tax years 2013, 2014, and 2015, including any determination pursuant to section 6320 and/or 6330, I.R.C., that would confer jurisdiction on the Court, as of the date the petition herein was filed. Subsequently, on October 27, 2022, petitioner filed a notice of no objection to respondent's motion.
Also pending in this matter is a Motion to Restrain Assessment or Collection or to Order Refund of Amount Collected, filed October 14, 2022, by petitioner. Respondent rejoined on November 16, 2022, with an objection to petitioner's motion. Petitioner then filed a further response to respondent's objection.
In the context of a deficiency proceeding, section 6213(a), I.R.C., provides that respondent generally is precluded from assessing or collecting a deficiency until a notice of deficiency authorized under section 6212(a), I.R.C., is mailed to the taxpayer with respect to the deficiency and until the expiration of the 90-day (or 150-day) period for filing a timely petition for redetermination with this Court. Upon the filing of a petition for redetermination, respondent is further precluded from assessing or collecting the deficiency until the decision of the Court becomes final. See, e.g, Powerstein v. Commissioner, 99 T.C. 466, 471 (1992); Powell v. Commissioner, 96 T.C. 707, 710-711 (1991). This Court's authority to restrain assessment or collection in such deficiency cases is then found in the penultimate sentence of section 6213(a), I.R.C., which reads: "The Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for a redetermination of the deficiency has been filed and then only in respect of the deficiency that is the subject of such petition." Thus, absent jurisdiction over an underlying statutory notice of deficiency issued pursuant to section 6212(a), I.R.C., there is no basis upon which to grant a motion to restrain in a purported deficiency case.
Similarly, in the context of a collection proceeding, section 6330(e), I.R.C., provides that levy actions and the running of the period of limitations related to collections (and to other enumerated actions not pertinent here) shall be suspended for the period during which a hearing before the IRS Office of Appeals under section 6330, I.R.C., and appeals therein, are pending. However, "The Tax Court shall have no jurisdiction * * * to enjoin any action or proceeding unless a timely appeal has been filed * * * and then only in respect of the unpaid tax or proposed levy to which the determination being appealed relates." Sec. 6330(e)(1), I.R.C. Moreover, while section 6330(e), I.R.C., bars respondent from levying on a person's property during the prohibited period, there is nothing in section 6330(e), I.R.C., that prohibits respondent from filing a Federal tax lien during that period. See Berry v. Commissioner, 122 T.C. 184, 190-191 (2004).
Hence, in absence of any proper proceeding under section 6212 or 6330, I.R.C., over which this Court has jurisdiction, the Court likewise is without jurisdiction to enjoin any collection action.
The premises considered, it is
ORDERED that petitioner's Motion To Restrain Assessment or Collection or To Order Refund of Amount Collected is denied. 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 with respect to each year placed in issue in the petition upon the ground stated in respondent's motion.