Opinion
4051-21
03-07-2022
Donald Heaberlin & Kay Heaberlin Petitioners v. Commissioner of Internal Revenue Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley Chief Judge
On February 8, 2021, petitioners filed the Petition to commence this case. Petitioners assert in the Petition that the notice of deficiency is duplicative, insofar as on October 15, 2020, they mailed to the IRS a check in the amount of $237, and that the check cleared on November 25, 2020 (i.e., before the issuance of the notice of deficiency).
On June 4, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that no valid notice of deficiency, as authorized by section 6212 and required by section 6213(a) of the Internal Revenue Code to form the basis for a petition to this Court, has been issued to petitioners with respect to the 2017 taxable year. In the motion to dismiss respondent confirms that, as asserted in the Petition, petitioners paid the tax liability for the 2017 taxable year before the issuance of the notice of deficiency in this case, and asserts that, no deficiency existed at the time the notice was issued.
On June 7, 2021, the Court ordered petitioners to file an objection, if any, to respondent's motion to dismiss on or before July 2, 2021. To this date, petitioners have not filed an objection to respondent's motion to dismiss.
The record shows that petitioners paid the tax liability for the 2017 taxable year before the issuance of the notice of deficiency, and that no such deficiency existed at the time the notice was issued. Consequently, the notice of deficiency is invalid, and this case must be dismissed for lack of jurisdiction. See Bendheim v. Commissioner, 214 F.2d 26 (2d Cir. 1954); McConkey v. Commissioner, 199 F.2d 892 (4th Cir. 1952); Estate of Crawford v. Commissioner, 46 T.C. 262 (1966); Anderson v. Commissioner, 11 T.C. 841 (1948).
After due consideration of the foregoing, it is
ORDERED that respondent's June 4, 2021, Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction on the ground that the notice of deficiency is invalid.