Opinion
34821-21L
08-29-2024
GEORGE B. FRYE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden Special Trial Judge
On February 14, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to 2008, 2009, 2012, 2014, 2015, 2017, 2018 (motion). On March 17, 2022, petitioner filed an objection to respondent's motion. On March 28, respondent filed a first supplement to the motion, to which petitioner filed a response on April 22, 2022. On April 10, 2024, this case was assigned to the undersigned for the purpose of disposing of respondent's motion, as supplemented.
By Order served April 15, 2024, the Court directed respondent to file a second supplement to the motion and directed petitioner to file a response to the second supplement, addressing the application of the Court opinion in Organic Cannabis Found., LLC v. Commissioner, 161 T.C. No. 4 (Sep. 27, 2023), to the facts of the case and whether equitable tolling application with respect to tax year 2017. A. On July 12, 2024, respondent filed a second supplement to the motion and on July 15, 2024, filed a First Amendment to Answer. Petitioner filed an objection to the second supplement to the motion on August 20, 2024.
Respondent has alleged in his First Amendment to Answer and second supplement to the motion that petitioner's request for a collection due process (CDP) hearing for tax year 2017 was untimely and that respondent was unaware of any relevant facts in this case that would warrant the application of equitable tolling. Petitioner has not alleged and the record does not support a finding that equitable tolling applies with respect to the CDP request for tax year 2017.
Although petitioner in his objection filed August 20, 2024, alleged that the underlying notice of intent to levy for tax year 2017 were "unnecessary and improper" because petitioner had filed an offer in compromise before the issuance of the notice of intent to levy for 2017, this allegation is not supported by the record. According to respondent's allegations in the motion, which petitioner does not appear to dispute, the relevant notice of intent to levy was issued to petitioner on August 5, 2019. Petitioner's own submissions show that the offer in compromise is dated September 18, 2019, and the IRS received it on October 30, 2019, well after the issuance of the notice of intent to levy and the 30 day period for petitioner to file a request for a CDP hearing with respect to that notice.
With respect to the other years that respondent moved to dismiss, there are not any notices of determination issued to petitioner for those years and accordingly, the Court will grant respondent's motion to dismiss from this case tax years 2008, 2009, 2012, 2014, 2015, 2017, 2018. The only issue that remains in dispute is with respect to the notice of determination issued to petitioner for tax year 2016.
Upon due consideration and for cause, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction as to 2008, 2009, 2012, 2014, 2015, 2017, 2018, filed February 14, 2022, as supplemented, is granted, in that the case as to tax years 2008, 2009, 2012, 2014, 2015, 2017, 2018, is dismissed for lack of jurisdiction.