Opinion
20069-22
02-08-2023
GAEY W. ALEXANDER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Mary Ann Cohen, Judge
The Petition in this case was filed September 1, 2022, in response to a Notice of Deficiency with respect to petitioner's tax years 2016 and 2017. The Petition did not address the items of unreported income or other adjustments in the Notice of Deficiency, instead asserting frivolous arguments that certain Internal Revenue Code sections apply only to sales of alcohol, tobacco, and firearms. The Petition also alleged that the Notice of Deficiency was not properly signed.
On November 8, 2022, respondent filed a Motion To Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, requesting a penalty under Internal Revenue Code Section 6673. By Order served November 9, 2022, petitioner was directed to respond to respondent's motion and provided an opportunity to file an amended petition containing items described in the Order.
Petitioner did not file a proper amended petition of the type described in the November 9, 2022, Order. Instead, on December 5, 2022, he filed a First Amended Petition, a response to respondent's Motion, and a Motion to Dismiss For Failure to Establish Jurisdiction, all of which repeated the same frivolous arguments in the original Petition. On December 9, 2022, the pending motions were assigned to the undersigned judge.
Petitioner invoked the jurisdiction of this Court when he filed a timely petition in response to the notice of deficiency. Rule 13(a) and (c), Tax Court Rules of Practice and Procedure. The signature of an IRS official is not required on a notice of deficiency. See Urban v. Commissioner, 964 F.2d 888, 889-890 (9th Cir. 1992); Harriss v. Commissioner, T.C. Memo. 2021-31; Batsch v. Commissioner, T.C. Memo. 2016-140, aff'd sub nom Hyde v. Commissioner, 695 Fed.Appx. 166 (8th Cir. 2017).
Petitioner's arguments that Internal Revenue Code sections apply only to alcohol, tobacco, and firearms are frivolous on their face. Petitioner ignores the express language of those sections to assert that inclusion of certain taxes excludes others. Such interpretative arguments have been long and consistently rejected in strong terms, even in sustaining criminal convictions. See, e.g., "inane" and "preposterous" in United States v. Latham, 754 F.2d 747, 750 (7th Cir. 1985).
Petitioner's Motion to Dismiss was denied on December 27, 2022. On December 29, 2022, the Court warned petitioner that his arguments were frivolous and advised him of the potential for a penalty under Section 6673 of the Internal Revenue Code. The Court's Order also warned him that if respondent's Motion is granted, a decision for the full amount of the deficiencies and penalties, exceeding $500,000. would be entered against him and could not be challenged in subsequent collection proceedings. Petitioner was given another opportunity to file a proper petition or to show cause why a decision in the full amounts determined in the statutory notice and a penalty should not be imposed against him. He was also advised to consult with competent counsel before proceeding in this case.
Petitioner failed to file a proper petition. Instead, on January 19, 2023, he filed a Second Amended Petition arguing jurisdiction, a second Motion to Dismiss for Lack of Jurisdiction, and a Motion to Dismiss for Double Jeopardy. Petitioner's filings referred to one of his prior cases in this Court, Docket No. 25708-17, which was dismissed for lack of jurisdiction because petitioner had failed to produce any notice of deficiency or notice that would give the Court jurisdiction. The double jeopardy clause of the Constitution protects individuals only against the imposition of multiple criminal punishments for the same offense. Hudson v. United States, 522 U.S. 93,99 (1997). The imposition of a liability for a federal income tax deficiency or related civil penalties is remedial and is not a criminal punishment. Helvering v. Mitchell, 303 U.S. 3391 (1938). See Ames v. Commissioner, 112 T.C. 304, 317 (1999). Petitioner persists in making groundless arguments, and we conclude that he commenced and maintains this proceeding primarily for delay.
Upon due consideration and for cause, it is hereby
ORDERED that petitioner's Motion to Dismiss for Lack of Jurisdiction and Motion to Dismiss for Double Jeopardy filed January 19, 2023, are denied. It is further
ORDERED respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted filed November 8, 2022, is granted. It is further
ORDERED AND DECIDED that the Court's Order to Show Cause served December 29, 2022, is made absolute, and the following amounts are due from petitioner:
Additions to Tax/Penalties
Year
Deficiency
6651(a)(1)
6662(a)
2016
$166,573.00
$41,226.25
$33,314.60
2017
183,094.00
43,693.50
36,618.80
It is further
ORDERED AND DECIDED that pursuant to I.R.C. § 6673(a), petitioner shall pay a penalty to the United States in the amount of $10,000.