Opinion
7795-21
04-25-2022
ESCAPE TECHNOLOGY, INC., Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Joseph W. Nega, Judge.
This deficiency case is currently calendared for an in-person trial for the session of the Court scheduled to commence May 2, 2022, in San Diego, California. On March 29, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction (respondent's motion), on the ground that the petition does not bear petitioner's original signature or the signature of counsel admitted to practice before the Tax Court.
On November 26, 2020, a notice of deficiency was issued to petitioner for the tax periods ending June 30, 2015, and June 30, 2016. On March 1, 2021, a petition was timely filed commencing the above-docketed case, bearing a postmark date of February 18, 2021. Respondent represents that the signature on the petition belongs to petitioner's power of attorney Udi Carrazco. Respondent represents that, when respondent's counsel contacted Mr. Carrazco, he admitted that he did not have lawful authorization to sign the petition on petitioner's behalf and is no longer in contact with petitioner. Respondent represents that Mr. Carrazco does not object to the granting of respondent's motion.
Mr. Carrazco also noted his belief that petitioner Escape Technology, Inc has been sold in the period since the filing of the petition.
Respondent represents that he was informed by his Independent Office of Appeals that petitioner signed a Notice of Deficiency Waiver Form 4289-B conceding respondent's proposed adjustments to its tax returns for the years at issue, which are the subject of the notice of deficiency in this case. Respondent also represents that he was informed that petitioner's transcripts show that tax and penalties were assessed, in the amounts shown in the notice of deficiency, and that petitioner's transcripts show payment in full by petitioner for the years at issue.
This Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent expressly provided by statute. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). This Court's jurisdiction to redetermine a deficiency in income tax depends on the issuance of a valid statutory notice of deficiency and a timely filed petition. See Levitt v. Commissioner, 97 T.C. 437, 441 (1991). The burden of proving that the Court has jurisdiction is on the taxpayer, and unless the petition is filed by the taxpayer or by someone lawfully authorized to act on the taxpayer's behalf, we lack jurisdiction. See Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). Rule 23(a)(1) requires that a petition bear "the original signature of the party's counsel, or of the party personally if the party is self-represented." Rule 60(a)(1) requires that a case "be brought by and in the name of the person against who the Commissioner determined the deficiency." However, "[a] case timely brought shall not be dismissed on the ground that it is not properly brought on behalf of a party until a reasonable time has been allowed after objection for ratification by such party of the bringing of the case." Rule 60(a)(1). If the party then ratifies the petition, "such ratification shall have the same effect as if the case had been timely brought by such party." Id. Ratification requires a showing that the non-signing party authorized the signing party to act on their behalf and with their approval in filing a petition with this Court. See Levitt, 97 T.C. at 441.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Respondent has demonstrated facts that establish that the petition does not bear an original signature by petitioners or by their lawfully authorized representative. See, e.g., Martin v. Commissioner, T.C. Memo. 2000-187, 2000 WL 825673, at *4-*5, aff'd, 38 Fed.Appx. 980 (4th Cir. 2002). Respondent has further established that ratification would be futile, because Mr. Carrazco admitted that he was not authorized to act on behalf of petitioner in filing the petition. See Carstenson v. Commissioner, 57 T.C. 542, 545-546 (1972); Hoj v. Commissioner, 26 T.C. 1074, 1076 (1956). Accordingly, we will grant respondent's motion and dismiss this case for lack of jurisdiction.
Upon due consideration and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 29, 2022, is granted, and this case is dismissed for lack of jurisdiction.