Opinion
5578-21
06-13-2022
HEAT AND FROST INSULATORS AND ALLIED WORKERS LOCAL NO. 4 WELFARE FUND, KEITH W. BURKE, TRUSTEE, Petitioner(s) v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan Chief Judge.
The petition underlying the above-docketed proceeding was filed on April 30, 2021, and 2016 was referenced as the taxable period in contention. No notices of deficiency or determination issued by the Internal Revenue Service (IRS) were attached to the petition. Rather, attached was a copy of a single IRS communication, i.e., a Notice CP171 dated April 5, 2021, sent to petitioner with respect to employment taxes for the quarter ended December 31, 2016.
Subsequently, on August 6, 2021, respondent filed a Motion To Dismiss for Lack of Jurisdiction, on the ground that no notice of deficiency, as authorized by section 6212 and required by section 6213(a) of the Internal Revenue Code (I.R.C.) to form the basis for a petition to this Court, notice of determination concerning collection action pursuant to section 6320 and/or 6330, I.R.C., or notice of determination of worker classification pursuant to section 7436, I.R.C., had been sent to petitioner with respect to the taxable quarter ended December 31, 2016, nor had respondent made any other determination with respect to petitioner's such tax period that would confer jurisdiction on the Court, as of the date the petition herein was filed.
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).
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 in 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).
Jurisdiction under section 7436, I.R.C., is similarly predicated in part on existence of a determination by the IRS under that section regarding services performed for the person instigating the proceeding. More specifically, generally, four requirements must be satisfied before the Court has jurisdiction under section 7436(a), I.R.C. See American Airlines, Inc. v. Commissioner, 144 T.C. 24, 32 (2015); see also SECC Corp. v. Commissioner, 142 T.C. 225 (2014). There must be: (1) An examination in connection with the audit "of any person"; (2) a determination by the Secretary that "one or more individuals performing services for such person are employees of such person for purposes of subtitle C, or such person is not entitled to the treatment under subsection (a) of section 530 of the Revenue Act of 1978 with respect to such an individual"; (3) an "actual controversy" involving the determination as part of an examination; and (4) the filing of an appropriate pleading in the Tax Court. See sec. 7436(a), I.R.C.; see also American Airlines, Inc. v. Commissioner, 144 T.C. at 32.
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 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), 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.
Petitioner was served with copy of respondent's motion and on August 12, 2021, filed an opposition, with attachments. Therein, petitioner did not directly deny the jurisdictional allegations set forth in respondent's motion, i.e., petitioner did not claim or show that the IRS had sent a relevant notice of deficiency or determination or any other jurisdictional notice for 2016. Instead, petitioner seemed to take the overarching position that the IRS's actions (or lack thereof) should allow this case to proceed. The principal focus was on petitioner's long-running efforts to resolve its tax matters administratively with the IRS and its frustrations with the agency. Petitioner explained how the situation had apparently developed through an incidence analogous to mistaken identity, where petitioner's tax identification number had either been used by another entity or entered into the IRS systems in error. The opposition highlighted the extensive delay and silence from the IRS in the face of petitioner's responses and submissions, and it closed with a plea that the Court direct the IRS to revoke or rescind the improper notices.
Thus, the record at this juncture suggests that petitioner may have sought the assistance of the Court after having become frustrated with administrative actions by the IRS and any attempts to work with the agency but that the petition here was not based upon or instigated by a specific IRS notice expressly providing petitioner with the right to contest a particular IRS determination in this Court. Suffice it to say that no IRS communication supplied or referenced by petitioner to date constitutes, or can substitute for, a notice of deficiency issued pursuant to 6212, I.R.C., a notice of determination issued pursuant to sections 6320 and/or 6330, I.R.C., or any other of the narrow class of specified determinations by the IRS that can open the door to the Tax Court for purposes of this case. To the contrary, petitioner's apparently expansive view of the Court's authority fails to comport with the limited nature of the jurisdiction set forth in the statutory parameters set forth above.
In conclusion then, while the Court is sympathetic to petitioner's situation and understands the challenges of the circumstances faced and the good faith efforts made, the Court on the present record lacks jurisdiction in this case to review any action (or inaction) by respondent in regard to petitioner's taxes. Congress has granted the Tax Court no authority to afford any remedy in the circumstances evidenced by this proceeding, regardless of the merits of petitioner's complaints.
The premises considered, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.