Opinion
637-22
05-09-2023
ANNE HAAS & DANIEL VAN KORN, DECEASED, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Eunkyong Choi Special Trial Judge
Respondent's Motion to Dismiss for Failure to State a Claim upon Which Relief Can Be Granted, filed February 16, 2022, is pending in this case. By Order served July 22, 2022, the Court directed petitioners to file an objection to respondent's motion or file an amended petition by August 15, 2022. Petitioners did not file an objection and did not file an amended petition. Accordingly, by Order served April 26, 2023, respondent's motion was assigned to the undersigned for disposition.
Rule 40 of the Tax Court Rules of Practice and Procedure 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 to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Rule 34(b)(4) requires that a petition filed contain clear and concise assignments of each and every error that the taxpayer alleges to have been committed by respondent in the determination of the deficiency and penalty 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).
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. Further, the failure of a party to plead or otherwise proceed as provided in the Court's Rules may be grounds for the Court to hold such a party in default, either on the motion of another party or on the initiative of the Court. Rule 123(a).
Similarly, the failure of a petition to conform to the requirements set forth in Rule 34 may be grounds for dismissal. See Rules 34(a)(1), 123(b).
The Petition herein does not satisfy the requirements of Rule 34(b)(4) and (5). There is neither an assignment of error nor an allegation of fact supporting any justifiable claim. The Petition is merely a copy of the deficiency notice respondent issued to petitioners on October 25, 2021, and instructions for petitioning the Court.
Accordingly, the Court finds that the Petition, in this case, fails to meet the requirements of Rule 34 and that it fails to raise any justiciable issue.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed February 16, 2022, is granted, and this case is dismissed on the stated ground.