Opinion
11906-19
08-17-2021
Derald Wilford Geddes, Petitioner v. Commissioner of Internal Revenue, Respondent
ORDER
Diana L. Leyden Special Trial Judge.
Respondent filed on March 20, 2020, a Motion To Dismiss for Failure To State A Claim Upon Which Relief Can Be Granted (motion). Petitioner filed an Objection, as supplemented, on November 23, 2020 (objection). The motion was assigned to the undersigned for disposition by Order dated July 28, 2021.
Background
The petition in this case was filed on July 2, 2019. Petitioner sought review of (1) purported notices of deficiency allegedly issued to him for taxable years 1989 through 2018, and (2) purported notices of determination concerning collection action allegedly issued to him with respect to taxable years 1989 through 2018. On October 30, 2019, respondent filed a Motion To Dismiss For Lack Of Jurisdiction And To Strike As To Taxable Years 1989 Through 2010 And 2014 Through 2018 (motion to dismiss). In that motion to dismiss respondent stated that after a diligent search he was not able to find any notice of deficiency or notice of determination with respect to the stated years, but that he had located a notice of deficiency as to 2011, 2012, and 2013. Petitioner filed an objection to respondent's motion to dismiss on November 25, 2019. However, petitioner agreed with respondent's assertions as to the lack of notices of deficiency or notices of determination for the stated years and on December 9, 2019, the Court issued an Order dismissing so much of this case relating to taxable years 1989 through 2010, and taxable years 2014 through 2018.
On January 7. 2020, respondent filed a Motion To Dismiss For Lack Of Jurisdiction And To Strike As To Taxable Years 2011, 2012, 2013 insofar as petitioner alleged that the Internal Revenue Service had issued notices of determination as to those years. Petitioner filed an objection to that motion on January 29, 2020. On February 5, 2020, the Court issued an Order dismissing so much of this case relating to the notice of determination concerning collection action for taxable years 2011 through 2013. This remaining issues in this case relate to the June 6, 2019, notice of deficiency issued to petitioner for taxable years 2011, 2012, and 2013.
Respondent's Assertion of Failure to State a Claim
Among other things, in the notice of deficiency for taxable years 2011 through 2013 respondent determined that petitioner was liable for fraud penalties under section 6663 for 2011 and 2012, and a fraudulent failure to file penalty under section 6651(f) for 2013.
Because the burden of proof with respect to the underlying civil fraud penalties is on respondent, petitioner's pleading threshold is low. See sec. 7454; Rule 142(b). The allegations contained in the petition, objection to the motion, and supplement to the objection to the motion challenge the imposition of the underlying penalties in dispute in this case. Accordingly, the allegations in the petition, objection to the motion, and supplement to the objection to the motion are sufficient to defeat respondent's Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted, filed March 20, 2020.
Unless otherwise indicated, all section references are to the Internal Revenue Code, as amended, in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Upon due consideration and for cause, it is
ORDERED that respondent's Motion To Dismiss for Failure To State A Claim Upon Which Relief Can Be Granted, filed March 20, 2020, is denied.