Opinion
14347-23
07-02-2024
ASSISTIVE CHIOCES, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURSIDICTION
Kathleen Kerrigan Chief Judge
On September 7, 2023, petitioner filed the Petition purporting to dispute tax year 2019. Petitioner did not attach a copy of a notice of deficiency or a notice of determination for tax year 2019 to the Petition. Instead, petitioner attached a Notice CP220J and a Letter 227-N.
On October 19, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the grounds that no notice of deficiency or notice of determination concerning collection action was issued to petitioner for tax year 2019.
On October 20, 2023, petitioner filed an Opposition to the Motion in which petitioner agrees that no notice of deficiency was issued to petitioner for tax year 2019. Instead, petitioner contends that respondent was required to issue a notice of deficiency to petitioner prior to assessing the "Employer Shared Responsibility Payment Penalty". Petitioner maintains that, since the "Employer Shared Responsibility Payment Penalty" is found in Chapter 43 of the Internal Revenue Code, section 6212(b)(1) requires a statutory notice of deficiency be issued prior to assessment.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C, in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Respondent maintains that none of the attachments attached to the Petition are notices of deficiency that demonstrate that respondent has determined a "deficiency" within the meaning of section 6211. Respondent also argues that the attachments are not a notice of determination under sections 6320 or 6330 to petition this Court for judicial review, and that without such a notice this Court does not have jurisdiction. On November 17, 2023, in reply to petitioner's Opposition, respondent maintains there is no requirement to issue a notice of deficiency for a payment pursuant to section 4980H(d)(1). We agree with respondent.
This Court is a court of limited jurisdiction, and it may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). This Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, generally depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330. § 6320(c), (d)(1); Rule 330(b); see Offiler v. Commissioner, 114 T.C. 492, 498 (2000). The record does not indicate any collection action under sections 6320 or 6330 has been pursued by respondent, and no notice of determination has been issued to petitioner.
In a case seeking redetermination of a deficiency, our jurisdiction depends in part upon the issuance of a valid notice of deficiency. See §§ 6212, 6213(a); Hallmark Rsch. Collective, 159 T.C. 126, 140 (2022) ("It is elemental that the Tax Court does not have jurisdiction where the Commissioner has not determined a deficiency and a statutory notice of deficiency has not been sent to the taxpayer-petitioner."). The notice of deficiency is known as "the taxpayer's ticket to the Tax Court" because, without it, there can be no prepayment judicial review by the Court of the deficiency determined by the Commissioner. Mulvania v. Commissioner, 81 T.C. 65, 67 (1983); see also Laing v. United States, 423 U.S. 161, 165 n.4 (1976) ("A deficiency notice is of import primarily because it is a jurisdictional prerequisite to a taxpayer's suit in the Tax Court for redetermination of his tax liability."); Hallmark Rsch. Collective, 159 T.C. at 140 ("No court has ever denied * * * that the Tax Court's jurisdiction over a deficiency case depends on the issuance of the [notice of deficiency].").
A "notice of deficiency must (1) fairly advise the taxpayer that the Commissioner has, in fact, determined a deficiency and (2) specify the year and the amount." Dees v. Commissioner, 148 T.C. 1, 4 (2017) (citing Foster v. Commissioner, 80 T.C. 34, 229-230 (1983), aff'd in part, vacated in part, 756 F.2d 1430 (9th Cir. 1985)). A deficiency means the amount by which a tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44 exceeds the amount shown as tax by the taxpayer on his return." See Smith v. Commissioner, 133 T.C. 424, 429 (2009).
Notice CP220J and Letter 227-N are notices of assessable penalties under section 4980H which provides that "[a]ny assessable payment provided by this section shall be paid upon notice and demand by the Secretary and shall be assessed and collected in the same manner as an assessable penalty under subchapter B of chapter 68." § 4980H(d)(1). Assessable penalties which do not depend upon a deficiency are not included in the statutory definition of a deficiency. See Smith, 133 T.C. at 429. "[T]his Court has never exercised jurisdiction over an assessable penalty that was not related to a deficiency...." Id. Absent a related deficiency, assessable penalties are not subject to the deficiency procedures of section 6213(a). See Id. at 428-29. The 4980H penalty in this case was not included or in any way a part of a statutory notice of deficiency.
Based on the motion papers filed, petitioner has not shown that respondent issued a notice of deficiency or a notice of determination for the year in issue that would permit it to invoke the Court's jurisdiction. Where this Court's jurisdiction is duly challenged, as here, 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); 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." See David Dung Le, M.D., Inc., 114 T.C. at 270; Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Petitioner invoked our jurisdiction and bearing the burden of establishing jurisdiction, it has failed to do so.
Upon due consideration and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed October 19, 2023, is granted and this case is dismissed on the stated ground.