Opinion
743-22
03-28-2022
ARKADIY GRINSHPUN & ALEXANDRA GRINSHPUN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley, Chief Judge
The petition commencing the above-docketed matter was filed on January 24, 2022, alleging dispute of a purported notice of determination concerning collection action with respect to the taxable year 2020. A Motion To Restrain Assessment or Collection or To Order Refund of Amount Collected followed on February 15, 2022.
Thereafter, on March 9, 2022, respondent filed Motion To Dismiss for Lack of Jurisdiction, on the ground that no notice of determination pursuant to section 6320 and/or 6330 of the Internal Revenue Code (I.R.C.) had been sent to petitioners with respect to the taxable year 2020, nor had respondent made any other determination with respect to such tax year that would confer jurisdiction on this Court, as of the date the petition herein was filed. A response to the motion to restrain, reaffirming the lack of jurisdiction and consequent lack of authority to restrain, was also filed on March 25, 2022.
Meanwhile, on March 17, 2022, petitioners had filed a response in objection to respondent's motion to dismiss. However, on March 23, 2022, petitioners filed a further motion under the procedurally improper designation "Motion To Withdraw". Therein, inter alia, petitioners sought to "voluntarily withdraw and dismiss" the petition herein, advising: "Since the time of filing and service of the Petition, Respondent has adjusted the account of Petitioners, as requested by Petitioners, thereby rendering the issues raised in the Petition moot."
Thus, although the procedure for voluntary dismissal established in Wagner v. Commissioner, 118 T.C. 330 (2002), wherein the Court held that a lien and/or levy case may be dismissed upon motion by the petitioner, is only available for proper collection cases over which the Court has jurisdiction, it would appear that petitioners now concur that the case should be dismissed.
This Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the issuance by the Commissioner of a valid notice of deficiency to the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Frieling v. Commissioner, 81 T.C. 42, 46 (1983). The notice of deficiency has been described as "the taxpayer's ticket to the Tax Court" because without it, there can be no prepayment judicial review by this Court of the deficiency determined by the Commissioner. Mulvania v. Commissioner, 81 T.C. 65, 67 (1983). The jurisdiction of the Court in a deficiency case also depends in part on the timely filing of a petition by the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Brown v. Commissioner, 78 T.C. 215, 220 (1982). In this regard, section 6213(a), I.R.C., provides that the petition must be filed with the Court within 90 days, or 150 days if the notice is addressed to a person outside the United States, after the notice of deficiency is mailed (not counting Saturday, Sunday, or a legal holiday in the District of Columbia as the last day). The Court has no authority to extend this 90-day (or 150-day) period. Joannou v. Commissioner, 33 T.C. 868, 869 (1960). However, a petition shall be treated as timely filed if it is filed on or before the last date specified in such notice for the filing of a Tax Court petition (but after issuance), a provision which becomes relevant where that date is later than the date computed with reference to the mailing date. Sec. 6213(a), I.R.C. Likewise, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
Similarly, this Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, I.R.C., depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330, I.R.C. Secs. 6320(c) and 6330(d)(1), I.R.C.; Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer have requested a hearing before the IRS Office of Appeals within the 30-day period specified in section 6320(a) or 6330(a), I.R.C., and calculated with reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, Final Notice of Intent To Levy and Notice of Your Right to a Hearing (or the equivalent Notice CP90, Intent to seize your assets and notice of your right to a hearing, depending on the version of the form used), or analogous post-levy notice of hearing rights under section 6330(f), I.R.C. (e.g., a Notice of Levy on Your State Tax Refund and Notice of Your Right to a Hearing).
A late or untimely request for a hearing nonetheless made within a one-year period calculated with reference to one of the types of final notice of lien or levy just described will result only in a so-called equivalent hearing and corresponding decision letter, which decision letter is not a notice of determination sufficient to invoke this Court's jurisdiction under section 6320 or 6330, I.R.C. Kennedy v. Commissioner, 116 T.C. 255, 262-263 (2001). A request for a hearing made after said one-year period will be denied, and neither a hearing under section 6320 or 6330, I.R.C., nor an equivalent hearing will be afforded. Secs. 301.6320-1(i)(2), Q&A-I7, I11; 301.6330-1(i)(2), Q&A-I7, I11, Proced. & Admin. Regs.
Where a hearing has been timely requested in response to one of the types of notices set forth supra, the IRS Office of Appeals is directed to issue a notice of determination entitling the taxpayer to invoke the jurisdiction of this Court. In that context, section 6330(d)(1), I.R.C., specifically provides that the petition must be filed with the Tax Court within 30 days of the determination. The Court has no authority to extend this 30-day period. Weber v. Commissioner, 122 T.C. 258, 263 (2004); McCune v. Commissioner, 115 T.C. 114, 117-118 (2000). However, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed.
Other types of IRS notice which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, include a Notice of Final Determination Concerning Your Request for Relief From Joint and Several Liability, a Notice of Final Determination Not To Abate Interest, a Notice of Determination of Worker Classification, Notice of Certification of Your Seriously Delinquent Federal Tax Debt to the State Department, or a Notice of Final Determination Concerning Whistleblower Action. No pertinent claims involving section 6015, 6404(h), 7436, 7345, or 7623, I.R.C., respectively, have been implicated here. Similarly absent is any suggestion that the perquisites have been met to support one of the statutorily described declaratory judgment actions that may be undertaken by the Court.
As regards petitioners' Motion To Restrain Assessment or Collection or To Order Refund of Amount Collected, in the context of a deficiency proceeding, section 6213(a), I.R.C., provides that respondent generally is precluded from assessing or collecting a deficiency until a notice of deficiency authorized under section 6212(a), I.R.C., is mailed to the taxpayer with respect to the deficiency and until the expiration of the 90-day (or 150-day) period for filing a timely petition for redetermination with this Court. Upon the filing of a petition for redetermination, respondent is further precluded from assessing or collecting the deficiency until the decision of the Court becomes final. See, e.g, Powerstein v. Commissioner, 99 T.C. 466, 471 (1992); Powell v. Commissioner, 96 T.C. 707, 710-711 (1991). This Court's authority to restrain assessment or collection in such deficiency cases is then found in the penultimate sentence of section 6213(a), I.R.C., which reads: "The Tax Court shall have no jurisdiction to enjoin any action or proceeding or order any refund under this subsection unless a timely petition for a redetermination of the deficiency has been filed and then only in respect of the deficiency that is the subject of such petition." Thus, absent jurisdiction over an underlying statutory notice of deficiency issued pursuant to section 6212(a), I.R.C., there is no basis upon which to grant a motion to restrain in a purported deficiency case.
Likewise, in the context of a collection proceeding, section 6330(e), I.R.C., provides that levy actions and the running of the period of limitations related to collections (and to other enumerated actions not pertinent here) shall be suspended for the period during which a hearing before the IRS Office of Appeals under section 6330, I.R.C., and appeals therein, are pending. However, "The Tax Court shall have no jurisdiction * * * to enjoin any action or proceeding unless a timely appeal has been filed * * * and then only in respect of the unpaid tax or proposed levy to which the determination being appealed relates." Sec. 6330(e)(1), I.R.C. Moreover, while section 6330(e), I.R.C., bars respondent from levying on a person's property during the prohibited period, there is nothing in section 6330(e), I.R.C., that prohibits respondent from filing a Federal tax lien during that period. See Berry v. Commissioner, 122 T.C. 184, 190-191 (2004).
Hence, in absence of any proper proceeding under section 6212 or 6330, I.R.C., over which this Court has jurisdiction, the Court likewise is without jurisdiction to enjoin any collection action.
The premises considered, it is
ORDERED that petitioners' Motion To Restrain Assessment or Collection or To Order Refund of Amount Collected is denied. It is further
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction. It is further
ORDERED that petitioners' Motion To Withdraw is denied.