Opinion
6465-21
10-20-2021
Andrew Ethan MacTaggart Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley, Chief Judge
By Order issued July 22, 2021, the Court dismissed for lack of jurisdiction so much of this case relating to (1) notice(s) of deficiency for petitioner's 2000 through 2016, 2018, and 2019 tax years, and (2) notice(s) of determination for petitioner's 2000 through 2019 tax years. Following entry of that Order, only so much of this case relating to a notice of deficiency for petitioner's 2017 tax year remained pending before the Court. On July 26, 2021, petitioner filed a motion to dismiss for lack of jurisdiction with respect to the notice of deficiency for his 2017 tax year. On August 31, 2021, respondent filed a Notice of Objection to Motion to Dismiss for Lack of Jurisdiction. Thereafter, on September 9, 2021, respondent filed a First Supplement to Notice of Objection to Motion to Dismiss for Lack of Jurisdiction. On September 15, 2021, petitioner filed a Response to Notice of Objection to Motion to Dismiss for Lack of Jurisdiction.
In petitioner's motion and response to respondent's motion, as supplemented, petitioner first argues that his motion to dismiss should be granted because he never received the notice of deficiency for his 2017 tax year. Petitioner further argues that the notice of deficiency issued to him by the IRS for his 2017 tax year is not "statutory" because it does not contain verification that it was signed under penalty of perjury, as required by Internal Revenue Code 6065.
In his objection, as supplemented, respondent states that: (1) a notice of deficiency for petitioner's 2017 tax year was sent by certified mail to petitioner at his last known address on December 22, 2020, (2) the 2017 notice of deficiency was delivered to petitioner on December 28, 2020, and (3) the petition filed to commence this case was timely filed with respect to the notice of deficiency issued for petitioner's 2017 tax year. As substantiation of mailing and receipt, respondent attached (a) a copy of the notice of deficiency for petitioner's 2017 tax year, bearing a certified mail tracking number, (b) a certified mail list demonstrating mailing of the 2017 notice of deficiency to petitioner's last known address on December 22, 2020, and (c) a printout from the United States Postal Service's website of the tracking history for the item of certified mail, with the same tracking number that appears on the notice of deficiency for petitioner's 2017 tax year, showing that the notice of deficiency was delivered to petitioner on December 28, 2020.
Turning to petitioner's arguments, we first note that, while respondent has presented documentary substantiation that refutes petitioner's assertion concerning receipt of the notice, the notice of deficiency is sufficient if mailed to the taxpayer's last known address. I.R.C. sec. 6212(b). The statute does not require that respondent prove delivery or actual receipt of the notice of deficiency. See Monge v. Commissioner, 93 T.C. 22, 33 (1989). Furthermore, petitioner's argument that I.R.C. section 6065 requires the notice of deficiency to be signed under penalty of perjury displays a fundamental misunderstanding of that Code section and is wholly without merit. Finally, as relevant here, in a deficiency case where the Court has jurisdiction, I.R.C. section 7459(d) generally requires the Court to enter a decision as to the amount of the deficiency, if any. Settles v. Commissioner, 138 T.C. 372, 374 (2012). Because this case is based on a notice of deficiency, the Court is required to enter a decision and, accordingly, the petition in this case may not be dismissed by petitioner.
In view of the foregoing, it is
ORDERED that petitioner's Response to Notice of Objection to Motion to Dismiss for Lack of Jurisdiction is recharacterized as a Response to Notice of Objection to Motion to Dismiss for Lack of Jurisdiction, As Supplemented. It is further
ORDERED that petitioner's Motion to Dismiss for Lack of Jurisdiction is denied.