Opinion
468-24
08-09-2024
AUSTIN DAVIN DEPOL, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed June 17, 2024. Therein, respondent moves that this case, which seeks to commence an action to restrain disclosure under Internal Revenue Code (I.R.C.) section 6110(f)(3)(A), be dismissed for lack of jurisdiction on the ground that petitioner failed to exhaust all administrative remedies available within the Internal Revenue Service (IRS), and further, that respondent has not made any other determination with respect to petitioner's 2021 or 2022 tax years that would confer jurisdiction on this Court. Petitioner objects to the granting of the Motion. For the reasons that follow, we must grant the Motion.
On or about November 1, 2023, the IRS issued petitioner a Form 14430, SS-8 Determination Analysis, regarding petitioner's employment classification. On November 8, 2023, the IRS issued petitioner a letter notifying him that the Form 14430 would be made available for public inspection (notice of intention to disclose). The notice of intention to disclose proposed deletions, pursuant to Internal Revenue Code (I.R.C.) section 6110, that would be made to the Form 14430. In addition, the notice of intention to disclose advised petitioner that the last date to request IRS review of the proposed deletions was November 28, 2023, and that if he disagreed with the results of the IRS review, the last date to file a petition in this Court was January 7, 2024.
On January 8, 2024, the Court received and filed the Petition to commence this case. Therein petitioner indicated that he was disputing a notice of deficiency issued on November 8, 2023, for tax years 2021 and 2022. On the same date, petitioner filed a First Amended Petition, in which petitioner indicated that he was disputing a notice of deficiency issued on November 1, 2023, for tax years 2021 and 2022. Petitioner did not attach a notice of deficiency to either filing and subsequently clarified that he had intended to reference a notice of intention to disclose dated November 8, 2023. Finally, on April 18, 2024, petitioner filed a Second Amended Petition, to which was attached a copy of the notice of intention to disclose.
Like all federal courts, the Tax Court is a court of limited jurisdiction, and we may exercise jurisdiction only to the extent expressly provided by statute. See I.R.C. § 7442; Anonymous v. Commissioner, 134 T.C. 13, 19 (2010). Where, as here, this Court's jurisdiction is duly challenged, our jurisdiction must be affirmatively shown by 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, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
I.R.C. section 6110(f)(3)(A) establishes jurisdiction in this Court to determine whether, and to what extent, a disputed portion of a written determination or background file document may be open to public inspection. See Anonymous, 134 T.C. at 17. However, this Court does not have jurisdiction in an action to restrain disclosure unless the person seeking to invoke our jurisdiction has exhausted all administrative remedies available within the IRS. See I.R.C. § 6110(f)(2)(B), (3)(A)(iii); Rule 220(c)(2) (C), Tax Court Rules of Practice and Procedure. As noted above, in his Motion to Dismiss respondent argues that petitioner failed to exhaust his administrative remedies because he did not submit a proper administrative protest to the IRS before filing the Petition to commence this case. We agree.
Under the applicable Treasury regulations, to administratively protest the disclosure of certain information in a determination letter a person must, within 20 days after the notice of intention to disclose is mailed, "submit a written statement identifying those deletions not made by the Internal Revenue Service which such person believes should have been made." Treas. Reg. § 601.201(e)(16); see also Treas. Reg. § 301.6110-5(b)(1). Failure to submit such an administrative protest is a failure to exhaust administrative remedies, thereby precluding the filing of a petition with this Court under I.R.C. section 6110(f)(3)(A). See Treas. Reg. § 301.6110-5(b)(1), (b)(3).
On November 22, 2023, petitioner sent a letter to the IRS SS-8 Program office. Although petitioner's letter was sent within the time for requesting review of the proposed deletions, review of the letter shows that it is more in the nature of a challenge to the underlying determination of worker classification. The letter identifies certain statements in the determination that petitioner challenges as inaccurate. However, the letter does not comply with the instructions on the notice of intention to disclose, which instructed petitioner to explain which ground for deletion, from a list provided on the notice, applied for each statement he identified: instead, petitioner appears to argue that the Form 14430 in its entirety should not be made public.
In his objection to respondent's motion, petitioner states, "Neither [the IRS SS-8 Program employee to whom he sent his letter] or anyone else provided any written correspondence after the 20 days whether or not they accepted Petitioner's submission of November 22nd, 2023 and/or whether or not it was deficient." He does not appear to argue that he intended to request, in his letter, the deletion of particular information.
Petitioner has failed to establish that, after receiving the notice of intention to disclose dated November 8, 2023, he submitted to the IRS a proper written statement identifying additional proposed deletions, as required under the Treasury regulations discussed above. Consequently, petitioner has failed to establish that he exhausted his administrative remedies as required by I.R.C. section 6110(f)(3)(A)(iii) to invoke our jurisdiction in an action to restrain disclosure, and we must grant respondent's Motion. Nor has petitioner argued or shown that respondent made any other determination with respect to his 2021 or 2022 tax years that would confer jurisdiction on this Court.
It is accordingly
ORDERED that respondent's above-referenced Motion is granted, and this case is dismissed for lack of jurisdiction.