Opinion
14058-21
03-23-2023
BERRY AND CULP, PC, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Eunkyong Choi Special Trial Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed September 9, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the following grounds: (1) to the extent petitioner seeks to challenge any collection activity by respondent for the 2016 taxable year, no notice of determination concerning collection action has been issued to petitioner for such year that would permit it to invoke the jurisdiction of this Court; (2) to the extent petitioner may seek to dispute respondent's denial of a penalty abatement request made by Berry and Culp, P.C, relating to an addition to tax assessed against that entity for the 2016 taxable year, no notice has been issued to petitioner that would permit it to invoke the jurisdiction of this Court; and (3) no other determination has been made for petitioner's 2016 taxable year that would permit it to invoke the jurisdiction of this Court. Petitioner filed a response to respondent's motion on October 12, 2021. For the reasons set forth below, we must grant respondent's motion and dismiss this case for lack of jurisdiction.
This Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. See Breman v. Commissioner, 66 T.C. 61, 66 (1976). In addition, jurisdiction must be proven affirmatively, and a taxpayer invoking our jurisdiction bears the burden of proving that we have jurisdiction over the taxpayer's case. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). In a case seeking review of certain IRS collection activity, the Court's jurisdiction depends on the issuance of a valid notice of determination (after petitioner has properly requested and received a collection due process hearing) under section 6320 or 6330 and the filing by the taxpayer of a petition concerning that IRS determination. Smith v. Commissioner, 124 T.C. 36, 38 (2005) (citing Sarell v. Commissioner, 117 T.C. 122, 125 (2001)); Secs. 6320(c) and 6330(d)(1); Rule 330(b). Further, section 6699(d), provides explicitly that deficiency procedures do not apply with respect to the assessment or collection of the penalty set forth in section 6699(a).
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all rule references are to the Tax Court Rules of Practice and Procedure.
Section 6699(a) authorizes the assessment of penalties for an S corporation's failure to timely file a return or failure to include in the return information required under section 6037. Respondent assessed penalties against petitioner for taxable year 2016 for failure to timely file a return and declined to abate the penalties upon petitioner's request.
Respondent's diligent search of records kept in the ordinary course of business revealed no evidence that responded mailed a Notice of Determination Concerning Collection Action(s) under Section 6320 and/or 6330 to petitioners for taxable year 2016, and no such notice was attached to the petition. Further, pursuant to section 6699(d), no notices were issued to petitioner that would grant this Court jurisdiction as to penalty abatement for taxable year 2016. Finally, respondent's search further showed that respondent made no other determination regarding petitioner for taxable year 2016 that would confer jurisdiction on this Court.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for lack of Jurisdiction as to taxable year 2016 is granted. It is further
ORDERED that this case is dismissed for lack of jurisdiction as to any notice of determination concerning collection action for taxable year 2016, and references in the petition to any such notice are deemed stricken.