Opinion
4941-22L
07-24-2023
DONALD THOMAS CLAY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Adam B. Landy Special Trial Judge
On January 10, 2022, the Commissioner issued to Mr. Clay a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code (notice of determination), sustaining a proposed levy action for taxable years 2014 through 2016. On February 15, 2022, the Court filed a Petition received from Mr. Clay for review of the notice of determination. In the Petition, Mr. Clay simply states "I would like the chance to file for these dates. If that is possible, please let me know." Mr. Clay resided in Maryland at the time the Petition was filed.
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.
On April 27, 2022, the Commissioner filed a Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted. In the motion to dismiss, the Commissioner argues that Mr. Clay failed to clearly and concisely state any facts or errors made by the IRS during the collection due process (CDP) proceeding. By Order served April 29, 2022, the Court directed Mr. Clay to file an Objection, if any, to the Commissioner's motion to dismiss on or before May 23, 2022. That Order also invited Mr. Clay to file a proper Amended Petition setting forth clear and concise assignments of each and every error that he alleges was committed by the IRS in this collection action, and clear and concise lettered statements of the facts on which he bases the assignments of error. Mr. Clay failed to file an Objection or an Amended Petition. By Order served July 21, 2023, the Commissioner's motion to dismiss was assigned to the undersigned for disposition.
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 moving party's adversary can prove no set of facts in support of a claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Rule 331(b)(4) requires that a Petition filed contain clear and concise assignments of each and every error that the taxpayer alleges to have been committed by the IRS in the CDP hearing. See Gordon v. Commissioner, 73 T.C. 736, 739 (1980). Rule 331(b)(5) further requires that the Petition contain clear and concise lettered statements of the facts on which the taxpayer bases the assignments of error. Any error not raised in the assignments of error is deemed to be conceded. Rule 331(b)(4). In Pierson v. Commissioner, 115 T.C. 576 (2000), the Court acknowledged and enforced the pleading requirements prescribed in Rule 331(b) and dismissed a petition in a collection case on the ground that the taxpayer had failed to state a claim for relief.
The Petition herein does not satisfy the requirements of Rule 331(b)(4) and (5). Mr. Clay has failed to present a valid challenge to the appropriateness of the IRS's collection action or offer any alternative means of collection. In the absence of a valid issue for review, we agree with the Commissioner that Mr. Clay has failed to state a claim upon which relief may be granted. As stated above, the Court afforded Mr. Clay the opportunity to file a proper Amended Petition and to assign error and allege specific facts concerning his dispute for taxable years 2014 through 2016. Mr. Clay failed to take advantage of this opportunity to file an Amended Petition. Accordingly, we shall grant the Commissioner's motion to dismiss.
Upon due consideration of the Commissioner's motion to dismiss and for cause, it is
ORDERED that the Commissioner's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed April 27, 2022, is granted, and this case is dismissed on the stated ground. It is further
ORDERED AND DECIDED that the Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code, dated January 10, 2022, upon which this case is based, is sustained.