Opinion
10138-23L
08-16-2024
MARIE ADDOO, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
This case is before the Court on respondent's Motion to Dismiss for Lack of Jurisdiction (Motion), filed August 10, 2023, as to the tax years 2015, 2016, 2017, 2018, 2019, 2021, and 2022. Respondent asserts that petitioner was not issued any notices for those specified years, not did respondent make any determinations that would otherwise confer jurisdiction on the Court with respect to those years. Respondent acknowledges, however, that petitioner was sent a notice of determination for tax year 2020, and that this notice of determination formed the basis for the Petition. On October 16, 2023, petitioner filed an objection to the Motion. On March 22, 2024, respondent filed a First Supplement to Motion to Dismiss for Lack of Jurisdiction. On April 22, 2024, petitioner filed a further objection to the Motion, as supplemented.
In the Petition, petitioner indicated that she was disputing a notice of determination concerning collection action, as well as the failure of the IRS to make a final determination within 180 days after a claim for interest abatement. She alleges requesting in 2022 "a Levy release by asking for a CDP hearing and claim for Abatement + Refund." Elsewhere in the Petition, petitioner appears to dispute various IRS actions for tax years 2015, 2016, 2017, 2018, 2019, 2021, and 2022. However, petitioner did not attach any IRS notices to the Petition.
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See Internal Revenue Code (I.R.C.) § 7442. Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
In a case seeking review of a determination concerning a collection action under I.R.C. section 6320 or 6330, our jurisdiction depends, in part, upon the issuance of a valid notice of determination by the Internal Revenue Service (IRS) Independent Office of Appeals under I.R.C. section 6320 or 6330. I.R.C. §§ 6320(c), 6330(d)(1); Rule 330(b); Offiler v. Commissioner, 114 T.C. 492 (2000). Petitioner has not demonstrated that she was issued a notice of determination concerning collection action for any year other than 2020. We will accordingly dismiss this case insofar as it concerns a notice of determination concerning collection action for tax years other than 2020.
In a case based upon failure of the IRS to abate interest, our jurisdiction depends in part upon the issuance of a determination by the IRS under I.R.C. section 6404(h) or the failure by the IRS to issue such a determination within 180 days of the filing of a claim for interest abatement. See I.R.C. § 6404(h)(1)(A); Rule 280(b)(1). Respondent acknowledges that petitioner submitted a Form 843, Claim for Refund and Request for Abatement, a copy of which was provided by respondent. Attached to the Form 843 was a letter dated July 29, 2024. Petitioner's requests therein are less than clear; however, it appears that she made no reference to interest abatement, but instead requested a refund for tax years 2015, 2016, 2017, and 2018. Respondent's assertion that the Form 843 was not a valid claim for interest abatement thus seems well founded. As petitioner has not demonstrated that she was issued a determination by the IRS under I.R.C. section 6404(h), or that the IRS failed to issue such a determination within 180 days of the filing of a claim for interest abatement, it appears that the Court lacks jurisdiction as to petitioner's claim for interest abatement. We will accordingly grant respondent's Motion insofar as it concerns a claim for interest abatement.
In a deficiency case, this Court's jurisdiction depends on the issuance of a valid notice of deficiency and the timely filing of a petition within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). Hoffenberg v. Commissioner, 905 F.2d 665 (2d Cir. 1990) (per curiam), aff'g T.C. Memo. 1989-676; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 130 n.4 (2022); Monge v. Commissioner, 93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988); see Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 7-8 (Nov. 2, 2023) (holding that the Court will continue treating the deficiency deadline as jurisdictional in cases appealable to jurisdictions outside the U.S. Court of Appeals for the Third Circuit).
Respondent acknowledges that petitioner was issued a notice of deficiency for tax year 2015 on July 10, 2017. The 90th day from this date was Sunday, October 8, 2017; as October 9, 2017, was a federal holiday, the last day for filing a petition with respect to this notice was October 10, 2017. See I.R.C. § 6213(a). As the Petition was filed long after this date, on June 20, 2023, the Court lacks jurisdiction as to the notice of deficiency issued to petitioner for 2015. In addition, as petitioner has not demonstrated that she was issued a notice of deficiency for any other year, we will dismiss this case insofar as it concerns a notice of deficiency.
In summary, petitioner has not demonstrated that she was issued any notices for tax years 2015, 2016, 2017, 2018, 2019, 2021, or 2022, nor that respondent made any determinations as to those years, that would confer jurisdiction on the Court. Nor has petitioner shown that she filed a valid request for interest abatement, upon which respondent took no action, for the tax years challenged in her Petition. Petitioner has therefore failed to meet her burden of establishing the facts giving rise to our jurisdiction as to tax years 2015, 2016, 2017, 2018, 2019, 2021, and 2022. See David Dung Le, M.D., Inc., 114 T.C. at 270. We are therefore obliged to grant respondent's motion and dismiss so much of this case as concerns those years.
In her Response to respondent's Motion, petitioner seeks additional relief that the Court is unable to grant. Petitioner asks for a continuance pursuant to Rule 133. This case is not scheduled on a trial calendar, so this request is premature. Petitioner demands a "trial by jury," and requests that the Court compel the inspection of IRS and Department of State records for petitioner and issue a subpoena for her IRS file. However, the Tax Court does not hold jury trials, and petitioner's request does not indicate that she has attempted informal discovery communication with respondent's counsel in satisfaction of the Court's procedures. See Rule 70(a)(1); Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Petitioner requests relief under I.R.C. section 7345(e)(2); however, she has provided no evidence that the Commissioner has certified to the Secretary of State that she has seriously delinquent tax debt.
Finally, petitioner requests "legal assistance" as a pro se litigant. Although petitioner is entitled to have the assistance of counsel, see Rule 24, she is not entitled to court-appointed counsel. It is true that under the Sixth Amendment to the United States Constitution, an indigent defendant in a criminal case may be entitled to appointed counsel where, "if he loses, he may be deprived of his physical liberty." See Lassiter v. Dep't of Soc. Servs. of Durham Cty., N.C. , 452 U.S. 18, 26-27 (1981). However, petitioner's physical liberty is not in jeopardy here and, therefore, the Sixth Amendment right to counsel has no applicability in this tax case. See Cupp v. Commissioner, 65 T.C. 68, 85-86 (1975), aff'd without published opinion, 559 F.2d 1207 (3d Cir. 1977).
Upon due consideration, and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed August 10, 2023, is recharacterized as petitioner's Motion to Dismiss for Lack of Jurisdiction as to Tax Years 2015, 2016, 2017, 2018, 2019, 2021, and 2022, and to Strike. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction as to Tax Years 2015, 2016, 2017, 2018, 2019, 2021, and 2022, and to Strike, filed August 10, 2023, as supplemented on March 22, 2024, is granted in that so much of this case as concerns tax years 2015, 2016, 2017, 2018, 2019, 2021, and 2022 is dismissed for lack of jurisdiction and deemed stricken. It is further
ORDERED that the Clerk of the Court shall serve on petitioner a clinic letter for New York City, New York.
Petitioner is advised that so much of this case relating to the notice of determination issued for her 2020 tax year remains pending before the Court.