Opinion
5213-22P
10-19-2023
HERBERT FREEDMAN, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSSAL FOR LACK OF JURISDICTION
Juan F. Vasquez, Judge.
On February 25, 2022, the Court received the Petition in the above-docketed case. In the Petition, petitioner indicated that he seeks review of a notice of deficiency and Notice of Certification of Your Seriously Delinquent Federal Tax Debt to the Department of State (notice of certification) with respect to taxable years 2010, 2011, 2014, 2015, 2016, 2017, and 2018. On April 28, 2022, respondent filed an Answer and attached a copy of a notice of certification issued to petitioner with respect to taxable years 2010, 2011, 2014, 2015, and 2016.
On August 17, 2022, respondent filed a Motion to Dismiss on Ground of Mootness. In that Motion, respondent asserted that he had reversed petitioner's certification under section 7345 for the taxable years listed in the notice of certification. According to respondent, so much of this case as pertains to the notice of certification for taxable years 2010, 2011, 2014, 2015, and 2016 is moot. See Ruesch v. Commissioner, 154 T.C. 289 (2020), aff'd in part, vacated in part, and remanded, 25 F.4th 67 (2d Cir. 2022).
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times.
Section 7345(a) provides that, if the Commissioner certifies that an individual has a "seriously delinquent tax debt," that certification shall be transmitted "to the Secretary of State for action with respect to denial, revocation, or limitation of [the individual's] passport."
On August 17, 2022, respondent also filed a Motion to Dismiss for Lack of Jurisdiction as to petitioner's claims concerning notices of deficiency or purported notices of deficiency for taxable years 2010, 2011, 2014, 2015, 2016, 2017, and 2018. With respect to 2010, 2011, 2015 and 2018, respondent contends that no notices of deficiency were issued to petitioner as of the Petition-filing date. As for 2014 and 2016, respondent acknowledges the issuance of notices of deficiency for those years but contends that the Petition was untimely. The record establishes that the Petition was not timely filed as to those years. See Hoffenberg v. Commissioner, 905 F.2d 665 (2d Cir. 1990) (per curiam), aff'g T.C. Memo. 1989-676; Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126, 138-39 (2022).
Respondent also acknowledges the issuance of a notice of deficiency for 2017. With respect to that taxable year, respondent seeks dismissal for lack of jurisdiction on the ground that the 2017 notice of deficiency was invalid.
Although the Court directed petitioner to file a response, if any, to each of respondent's Motions to Dismiss, petitioner failed to do so. Moreover, this case was called from the calendar for the New York, New York, trial session of the Court on October 31, 2022. Although counsel for respondent appeared and was heard, there was no appearance by or on behalf of petitioner. By Order to Show Cause issued November 15, 2022, the Court directed petitioner to show cause, in writing, why respondent's Motion to Dismiss on Ground of Mootness and Motion to Dismiss for Lack of Jurisdiction should not be granted. As of today, the Court has not received a response to our Order to Show Cause from petitioner. Accordingly, the Court will dismiss this case for the reasons stated in respondent's Motions.
Upon due consideration, it is
ORDERED that the Court's Order to Show Cause issued November 15, 2022, is hereby made absolute. It is further
ORDERED that respondent's Motion to Dismiss on Ground of Mootness, filed August 17, 2022, is granted, and so much of this case as concerns petitioner's claim under section 7345 for taxable years 2010, 2011, 2014, 2015, and 2016 is dismissed as moot. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed August 17, 2022, is granted, and so much of this case as pertains to petitioner's claims under section 6213 for taxable years 2010, 2011, 2014, 2015, 2016, 2017, and 2018 is dismissed for lack of jurisdiction on the grounds stated in respondent's just-referenced Motion. It is further
ORDERED that, there being no further claims, petitioner's case is dismissed.