Opinion
7541-21S
08-18-2021
Kathleen D. Johnson & Wesley H. Johnson Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge.
On May 27, 2021, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to Petitioner Wesley H. Johnson and To Change Caption seeking to dismiss so much of this case relating to Wesley H. Johnson on the ground that no notice of deficiency for taxable year 2017 was issued to petitioner Wesley H. Johnson, nor was any other notice of determination issued to Mr. Johnson for taxable year 2017 that would confer jurisdiction on this Court as to Mr. Johnson. In support of his motion, based on a diligent search of respondent's records, respondent states he has determined that no notice of deficiency or other notice of determination was issued to petitioner Wesley H. Johnson for taxable year 2017 that would confer jurisdiction upon this Court as to Mr. Johnson. On July 17, 2021, petitioners filed their Objection to respondent's motion to dismiss as to Mr. Johnson.
On March 1, 2021, the petition in this case was filed. Petitioners seek redetermination of a purported notice of deficiency dated November 30, 2020, allegedly issued to petitioners for their taxable year 2017. No notice of deficiency for taxable year 2017 issued to both petitioners or to Mr. Johnson was attached to the petition. Rather, petitioners attached the notice of deficiency dated November 30, 2020, that was issued solely to Kathleen D. Johnson for her taxable year 2017.
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 deficiency case, the jurisdiction of the Court depends on (1) the issuance by the Commissioner of a notice of deficiency, and (2) the filing of a petition 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). Rule 13(a) and (c), Tax Court Rules of Practice and Procedure; Mulvania v. Commissioner, 81 T.C. 65, 67 (1983; Brown v. Commissioner, 78 T.C. 215, 220 (1982). 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. at 67.
In their Objection petitioners essentially do not dispute the jurisdictional allegations set forth in respondent's motion to dismiss as to Mr. Johnson. Rather, petitioners, among other things, essentially assert that the Court should redetermine Mr. Johnson's asserted tax liability for 2017 on a joint return basis with Mrs. Johnson. Mr. Johnson in this case claims that he is entitled to have his income tax for his taxable year 2017 determined on a joint return basis with her. See, for e.g., Dugan v. Commissioner, T.C. Memo. 1996-155. However, even assuming arguendo that Mr. Johnson's claim to joint return status is ultimately upheld by the Court in this case, I.R.C. section 6212(b)(2) does not prohibit respondent from sending a separate notice of deficiency to only one spouse in a joint return situation. See Dolan v. Commissioner, 44 T.C. 420 (1965); Smith v. Commissioner, T.C. Memo. 1989-160.
The record in this case establishes that no notice of deficiency was issued to Mr. Johnson for his taxable year 2017. A notice of deficiency was issued only to Mrs. Johnson for her taxable year 2017. Accordingly, this Court lacks jurisdiction in this case to redetermine a deficiency as to petitioner Wesley H. Johnson for his taxable year 2017. Rule 13(a), Tax Court Rules of Practice and Procedure; Mulvania v. Commissioner, 81 T.C. at 67; Brown v. Commissioner, 78 T.C. at 220.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted in that so much of this case relating to petitioner Wesley H. Johnson is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read: "Kathleen D. Johnson, Petitioner v. Commissioner of Internal Revenue, Respondent".