Opinion
24147-16L
06-10-2022
JOSE M. GARCIA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Patrick J. Urda Judge
On May 5, 2022, this Court issued an Order permitting petitioner, Jose M. Garcia, to amend his original petition to add a claim that he raised in the IRS Office of Appeals after we had remanded this case for a supplemental collection due process (CDP) hearing. [Doc. 58 at 3-4.] Mr. Garcia thereafter filed a motion for leave to file an amended petition (and improperly filed a first amended petition) that included the claim that we expressly allowed, as well as another claim asserting that certain of the underlying assessments at issue were untimely. [Docs. 62, 63.] We will deny Mr. Garcia's motion and again direct him to file an amended petition that comports with our May 5 Order.
As we have previously explained, Rule 41(a), Tax Court Rules of Practice and Procedure, instructs that leave to amend a pleading should be "given freely" when justice so requires, based on the facts and circumstances viewed in light of sound reason and fairness. See Law v. Commissioner, 84 T.C. 985, 990 (1985). "In exercising its discretion, the Court may deny [a] petitioner's motion for leave to amend if permitting an amended petition would be futile." Block v. Commissioner, 120 T.C. 62, 64 (2003).
Mr. Garcia seeks to amend his petition to include a claim that certain of the assessments at issue were invalid because they occurred after the expiration of the governing statute of limitations. [Doc. 63 at 3.] Mr. Garcia, however, failed to advance this argument in the Office of Appeals during his supplemental CDP hearing, despite having nearly two years to do so. [See Docs. 1, 5, 23.] As Mr. Garcia did not raise this issue in the Office of Appeals, he may not challenge it in this Court. See Kaebel v. Commissioner, T.C. Memo. 2017-37, at *11-12; Treas. Reg. § 301.6330-1(f)(2), Q&A F-3 ("In seeking Tax Court review of a Notice of Determination, the taxpayer can only ask the court to consider an issue, including a challenge to the underlying tax liability, that was properly raised in the taxpayer's CDP hearing.").
Mr. Garcia's proposed amendment would be futile insofar as it seeks to raise the precluded challenge to the statute of limitations. It is therefore
ORDERED that Mr. Garcia's motion for leave to file first amended petition, filed May 23, 2022, is denied. It is further
ORDERED that Mr. Garcia's first amended petition, filed May 23, 2022, is hereby stricken from the Court's record. It is further
ORDERED that Mr. Garcia shall file a first amended petition consistent with this Order and our Order served on May 5, 2022, no later than June 23, 2022.