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Campos v. Comm'r of Internal Revenue

United States Tax Court
Nov 28, 2022
No. 34680-21 (U.S.T.C. Nov. 28, 2022)

Opinion

34680-21

11-28-2022

CAROLINA CAMPOS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent


ORDER OF DISMISSAL AND DECISION

Adam B. Landy Special Trial Judge

The petition commencing this case was filed on November 1, 2021. The petition consisted of only a copy of the notice of deficiency dated September 16, 2021, and issued to petitioner with respect to the 2020 taxable year. Although petitioner signed and dated the notice of deficiency waiver page and the consent to assessment and collection on Form 4549, petitioner did not make any statements, claims, or allegations of error. On February 4, 2022, respondent filed a Motion To Dismiss for Failure To State a Claim Upon Which Relief Can Be Granted. Petitioner failed to file an amended petition or an objection or response to respondent's motion although being afforded the opportunity to do so.

Rule 34(b)(4) requires that a petition contain clear and concise assignments of each and every error that the taxpayer alleges to have been committed by respondent in the determination of the deficiency and penalties in dispute. See Gordon v. Commissioner, 73 T.C. 736, 739 (1980). Rule 34(b)(5) further requires that the petition contain clear and concise lettered statements of the facts on which petitioner bases the assignments of error. See Jarvis v. Commissioner, 78 T.C. 646, 658 (1982).

Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.

Rule 40 provides that a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. The Court may grant such a motion when it appears beyond doubt that the party's adversary can prove no set of facts in support of a claim that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).

Any issue not raised in the assignments of error is deemed to be conceded. Rule 34(b)(4); Jarvis v. Commissioner, 78 T.C. at 658 n.19; Gordon v. Commissioner, 73 T.C. at 739. Further, the failure of a party to plead or otherwise proceed as provided in the Court's Rules may be grounds for the Court to hold such party in default, either on the motion of another party or on the initiative of the Court. Rule 123(a). Similarly, the failure of a petition to conform to the requirements set forth in Rule 34 may be grounds for dismissal. Rules 34(a)(1), 123(b).

The petition herein does not satisfy the Court's rules. There is neither assignment of error nor allegation of fact by petitioner in support of any justiciable claim. The signing of the notice of deficiency waiver page and the consent to assessment and collection is inferred to suggest petitioner's agreement with the proposed adjustments made by respondent.

Dismissal of this matter likewise comports with principles governing burden of proof, insofar as such burden on the deficiency lies with petitioner under the general premise of Rule 142(a) and has not shifted pursuant to section 7491(a). Concerning the penalties, although section 7491(c) would typically place the burden of production on respondent, petitioner's failure to assign error to the determination of the penalties and to raise any justiciable claims in that connection serves to vitiate and relieve respondent of the obligation set forth in section 7491(c). See Funk v. Commissioner, 123 T.C. 213, 217-218 (2004); Swain v. Commissioner, 118 T.C. 358, 363-365 (2002). Moreover, the ultimate burden in any event of establishing reasonable cause to the penalties remains with petitioner. See Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).

Upon due consideration of respondent's motion and for cause, it is

ORDERED that respondent's Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted is granted, and this case is dismissed on the stated ground. It is further

ORDERED AND DECIDED that, for taxable year 2020, petitioner is liable for a deficiency in income tax in the amount of $6,284.00, an accuracy-related penalty pursuant to I.R.C. § 6662(a) in the amount of $60.00, and a penalty pursuant to I.R.C. § 6676(a) in the amount of $1,196.80.


Summaries of

Campos v. Comm'r of Internal Revenue

United States Tax Court
Nov 28, 2022
No. 34680-21 (U.S.T.C. Nov. 28, 2022)
Case details for

Campos v. Comm'r of Internal Revenue

Case Details

Full title:CAROLINA CAMPOS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Court:United States Tax Court

Date published: Nov 28, 2022

Citations

No. 34680-21 (U.S.T.C. Nov. 28, 2022)