Opinion
20692-21
04-11-2022
JOHAN ALAR GRATE & LEMONDA BYNOE, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
ADAM B. LANDY SPECIAL TRIAL JUDGE
This case is before the Court on respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed October 13, 2021. As explained below, the Court will grant respondent's motion.
Background
On April 2, 2021, respondent issued a notice of deficiency to petitioners alleging a deficiency in income tax for taxable year 2017 in the amount of $4, 335.00. On June 7, 2021, petitioners filed a timely petition for redetermination with the Court challenging the above-described notice of deficiency. The petition does not make any factual claims of error but only appears to state legal conclusions of a frivolous nature. Specifically, the petition makes no mention of and raises no specific challenge to the proposed adjustments to income determined in the notice of deficiency.
In response to the petition, respondent filed the motion to dismiss arguing that no justiciable error has been alleged in the petition with respect to the notice of deficiency. On December 23, 2021, petitioners filed a response to the motion which they simply attached copies of respondent's motion and attachments which contains the phrase "Revoke, Returned, Rescind, Denied, for Inducement of Fraud", IRS Forms W-9 and W-8BEN, an affidavit, a document titled, "Memorandum of law in support of 1099 OID - Original Issue Discount", and Uniform Commercial Code Financing Statements. Petitioners' failed to file a proper amended petition after being afforded the opportunity to do so. 1
Discussion
Rule 40 provides that a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. The Court may grant such a motion when it appears beyond doubt that the party's adversary can prove no set of facts in support of a claim that would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Unless otherwise indicated, Rule references are to the Tax Court Rules of Practice and Procedure, and section references are to the Internal Revenue Code as amended and in effect in the year in issue.
Rule 34(b)(4) requires that a petition filed in this Court contain clear and concise assignments of each and every error that petitioners allege to have been committed by respondent in the determination of a deficiency and the additions to tax or penalties in dispute. See Gordon v. Commissioner, 73 T.C. 736, 739 (1980). Rule 34(b)(5) further requires that the petition contain clear and concise lettered statements of the facts on which the taxpayer bases the assignments of error. See Jarvis v. Commissioner, 78 T.C. 646, 658 (1982). A petition that does not conform to the requirements set forth in Rule 34 may be dismissed. Rules 34(a)(1), 40. Any issue not raised in the assignments of error is deemed to be conceded. Rule 34(b)(4); Jarvis v. Commissioner, 78 T.C. at 658 n.19; Gordon v. Commissioner, 73 T.C. at 739.
The petition herein does not satisfy the requirements of Rule 34(b)(4) and (5). There is neither assignment of error nor allegation of fact in support of any justiciable claim. Rather, the petition appears to be an expression of protest and contains nothing but frivolous and groundless recitations. We will not address these recitations. See Crain v. Commissioner, 737 F.2d 1417 (5th Cir. 1984) ("We perceive no need to refute these arguments with somber reasoning and copious citation of precedent; to do so might suggest that these arguments have some colorable merit".).
The premises considered, it is
ORDERED that respondent's motion is granted, and this case is dismissed for failure to state a claim upon which relief can be granted. It is further
ORDERED AND DECIDED that there is a deficiency in petitioners' income tax of $4, 335.00 for taxable year 2017. 2