Opinion
7044-23L
11-20-2023
SHAWN L. DEADWILER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Adam B. Landy Special Trial Judge
This case is before the Court on Mr. Deadwiler's Motion to Restrain Assessment or Collection or to Order Refund of Amount Collected, filed June 23, 2023, and the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed June 29, 2023. Mr. Deadwiler's motion urges this Court to enjoin and restrain the Commissioner from further collection activity during the pendency of his offer in compromise for the tax years at issue. Conversely, the Commissioner's motion maintains that no notice of determination concerning collection action, nor any other determination that would permit Mr. Deadwiler to invoke the jurisdiction of this Court, has been issued to Mr. Deadwiler for the 2009, 2018, and 2021 taxable years. Mr. Deadwiler opposes the granting of the Commissioner's motion.
This case was called for hearing on November 15, 2023, during the Court's November 15, 2023, Washington, District of Columbia, special hearing session. Counsel for Mr. Deadwiler and counsel for the Commissioner appeared and were heard. For the reasons that follow, we must grant the Commissioner's motion and dismiss this case for lack of jurisdiction. We will also deny Mr. Deadwiler's motion to restrain.
Background
The following facts are based on the parties' pleadings, motion papers, and the attached exhibits, unless otherwise stated. These facts are stated solely for the purpose of deciding the Motion before us and not as findings of fact in this case. See Sundstrand Corp. v. Commissioner, 98 T.C. 518, 520 (1992), aff'd, 17 F.3d 965 (7th Cir. 1994). Mr. Deadwiler resided in Maryland when he filed the petition.
On May 5, 2023, Mr. Deadwiler commenced this case by electronically filing a document titled, "Petition for Lien or Levy Action Under Code Section 6330 and Request for Injunction and/or Restraining Order" (Petition). No notice of determination concerning collection action or any other determination sufficient to confer jurisdiction on this Court is attached to the Petition. Rather, attached thereto is a copy of a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 (NFTL) dated April 6, 2023, and relating to Mr. Deadwiler's income tax liabilities for the 2009, 2018, and 2021 taxable years.
Among other things, the Petition requests (1) that the Commissioner "be enjoined and restrained from further collection activity during the pendency of Petitioner's application for Offer In Compromise," (2) that the Commissioner "be ordered to withdraw and/or retract the [NFTL] filed on April 6, 2023," and (3) that the Commissioner "be enjoined and restrained from further harassment of [Mr. Deadwiler] during the pendency of the application for Offer In Compromise."
There is no dispute that Mr. Deadwiler has not requested a collection due process (CDP) hearing at any point with respect to taxable years 2009, 2018, and 2021, and there is no dispute that the Commissioner has issued a notice of determination with respect to the previously listed taxable years.
Discussion
Our Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See § 7442; Sanders v. Commissioner, No. 15143-22, 161 T.C., slip op. at 3 (Nov. 2, 2023). Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by Mr. Deadwiler as 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); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, Mr. Deadwiler "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
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.
In a case seeking to invoke our CDP jurisdiction, as Mr. Deadwiler does here, our jurisdiction depends upon the issuance of a notice of determination (after the taxpayer has properly requested a CDP hearing) and the filing of a petition for review. See §§ 6320(c) and 6330(d)(1); Rule 330(b); Orum v. Commissioner, 123 T.C. 1, 8, 11- 12 (2004), aff'd, 412 F.3d 819 (7th Cir. 2005); Offiler v. Commissioner, 114 T.C. 492, 498 (2000). It follows that when a notice of determination is not issued to the taxpayer, we are obliged to dismiss the case for lack of jurisdiction. SeeOffiler, 114 T.C. at 498; Mighty v. Commissioner, T.C. Memo. 2022-44, at *2 n.2 ("Because the record fails to establish that the IRS issued petitioners a notice of determination with respect to 2013, we lack jurisdiction over that year."). "In deciding whether we have jurisdiction we will not look behind a notice of determination, or lack of notice, to determine whether a hearing was fair or even whether the taxpayer was given an appropriate hearing opportunity." Atl. Pac. Mgmt. Grp., LLC v. Commissioner, 152 T.C. 330, 333 (2019).
As noted above, the Petition in this case seeks to invoke our CDP jurisdiction, but no notice of determination concerning collection action is attached thereto. See Rule 331(b)(8) (requiring that a copy of the notice of determination be attached to any petition for lien or levy action). Moreover, after having had notice of the Commissioner's specific jurisdictional allegations in the Motion to Dismiss and an opportunity to respond, Mr. Deadwiler still has not produced a copy of any such notice. Instead, Mr. Deadwiler argues that the NFTL "operates as a final determination and therefore provides [Mr. Deadwiler] access to this Court for proper redress of [the Commissioner's] improper conduct." Mr. Deadwiler has not cited any authority to support this argument, and we are not aware of any. In the absence of any such authority, the argument is unavailing.
In addition to the NFTL, the record also includes a copy of a Notice of Intent to Levy and Notice of Your Rights to a Hearing (Levy Notice) dated March 23, 2023, and relating to petitioner's income tax liabilities for the 2009, 2018, 2019, and 2021 taxable years. It appears that the absence of any notice of determination concerning collection action in this case is attributable to Mr. Deadwiler's failure to properly request a CDP hearing in response to the issuance of either the Levy Notice or the NFTL. As noted above, such a hearing is a necessary prerequisite to the issuance of the notice of determination required for this Court to have jurisdiction in any CDP case. In sum, as the record reveals no indication that the Commissioner has acted, or failed to act, in any manner that could support the Court's jurisdiction in this case, Mr. Deadwiler has failed to establish affirmatively all facts giving rise to our jurisdiction, and we must dismiss this case for lack of jurisdiction. See David Dung Le, M.D., Inc., 114 T.C. at 270.
Also pending before the Court in this case is Mr. Deadwiler's Motion to Restrain Assessment or Collection or to Order Refund of Amount Collected, filed June 23, 2023. Mr. Deadwiler's motion requires that he files a timely petition for the taxable years at issue. See §§ 6213(a). 6330(e), 7421; Rule 55. Mr. Deadwiler failed to do so. Because the Court lacks jurisdiction over Mr. Deadwiler's taxable years at issue, the Court must deny his motion.
We note that a condition precedent to the issuance of a notice of determination is the requirement that Mr. Deadwiler has requested a hearing before the IRS Appeals Office as stated in section 6320(a) or 6330(a) and calculated with reference to an underlying NFTL or Levy Notice for the taxable years at issue. See generally Andre v. Commissioner, 127 T.C. 68, 69-71 (2006) (for a complete discussion). Mr. Deadwiler failed to request a CDP hearing before the IRS Appeals Office. For the reasons discussed above, we lack jurisdiction to review the propriety of respondent's collection activities in this case.
In consideration of the foregoing and for cause, it is
ORDERED that Mr. Deadwiler's Motion to Restrain Assessment or Collection or to Order Refund of Amount Collected, filed June 23, 2023, is denied. It is further
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed June 29, 2023, is granted, and this case is dismissed on the stated ground.