Opinion
2979-22S
08-12-2022
MICHAEL ANDREW DAVIS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Adam B. Landy Special Trial Judge
This case is before the Court on respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed March 18, 2022, pursuant to Rule 40. As explained below, the Court will grant respondent's motion.
Unless otherwise indicated, Rule references are to the Tax Court Rules of Practice and Procedure, and section references are to the Internal Revenue Code as amended and in effect in the year in issue.
Background
On November 29, 2021, respondent issued a notice of deficiency to Mr. Davis alleging a deficiency in income tax for taxable year 2019 in the amount of $5,374.00 and the accuracy-related penalty of $1,074.80. On February 24, 2022, Mr. Davis filed a timely Form 2, Petition, but he did not attach a copy of the notice of deficiency. Mr. Davis also did not provide any information on his petition in response to Item 5, "[e]xplain why you disagree with the IRS determination in this case (please list each point separately)" and Item 6, "[s]tate the facts upon which you rely (please list each point separately)".
On March 18, 2022, respondent filed the above-referenced motion. On May 2, 2022, the Court issued an Order directing Mr. Davis to file an objection, if any, to respondent's motion by May 25, 2022. The May 2, 2022, Order also provided Mr. Davis an opportunity to file a proper amended petition. The Court warned Mr. Davis that failure to comply with this Order may result in the granting of respondent's motion and dismissal of this case or other appropriate action by the Court. The Court reminded Mr. Davis of the pending motion, by electronic mail, on July 12, 2022 and by telephone conference with the parties on July 25, 2022. Mr. Davis was provided the name and contact information for a Low-Income Taxpayer Clinic in Houston, 1
Texas, and the Court extended the time for Mr. Davis to comply until August 10, 2022. Mr. Davis has not filed an objection or an amended petition.
Discussion
Rule 34(b)(4) requires that a petition filed in this Court contain clear and concise assignments of each and every error that petitioners allege to have been committed by respondent in the determination of a deficiency and the additions to tax or 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 the taxpayer bases the assignments of error. See Jarvis v. Commissioner, 78 T.C. 646, 658 (1982). A petition that does not conform to the requirements set forth in Rule 34 may be dismissed. Rules 34(a)(1), 40. 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.
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).
The petition herein does not satisfy the requirements of Rule 34(b)(4) and (5). There is neither assignment of error nor allegation of fact in support of any justiciable claim. Because Mr. Davis has not submitted a properly completed Form 2 petition, he has not satisfied the requirements of Rule 34. The Court afforded Mr. Davis with the opportunity to file a proper amended petition and to assign error and allege specific facts concerning his tax liability for the year at issue. Mr. Davis failed to take advantage of this opportunity to file an amended petition. Accordingly, the Court finds that the petition filed in this case fails to meet the requirements of Rule 34 and that it fails to raise any justiciable issue.
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, filed March 18, 2022, is granted, and this case is dismissed on the stated ground. It is further
ORDERED AND DECIDED that, for taxable year 2019, there is a deficiency in petitioner's income tax of $5,374.00 and that petitioner is liable for the accuracy-related penalty, pursuant to I.R.C. section 6662(a), in the amount of $1,074.80. 2