Opinion
12266-22S
03-06-2023
BRIAN MCCORMICK & MERRISA MCCORMICK, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On June 25, 2022, respondent filed a Motion to Dismiss for Lack of Jurisdiction as to Merrisa McCormick seeking to dismiss so much of this case relating to her on the ground that no notice of deficiency for taxable year 2018 was issued to Mrs. McCormick, nor was any other notice of determination issued to Mrs. McCormick for taxable year 2018 that would confer jurisdiction on this Court as to Mrs. McCormick. 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 Merrisa McCormick for taxable year 2018 that would confer jurisdiction upon this Court as to Mrs. McCormick. On July 28, 2022, petitioners filed their Reply objecting to respondent's motion to dismiss as to Mrs. McCormick.
On June 1, 2022, the petition in this case was filed. Petitioners seek redetermination of a purported notice of deficiency dated March 21, 2022, allegedly issued to petitioners for their taxable year 2018. No notice of deficiency for taxable year 2018 issued to both petitioners or to Mrs. McCormick was attached to the petition. Rather, petitioners attached the notice of deficiency dated March 21, 2022, that was issued solely to Brian McCormick for his taxable year 2018.
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 Reply petitioners essentially do not dispute the jurisdictional allegations set forth in respondent's motion to dismiss as to Mrs. McCormick. Rather, petitioners, among other things, essentially assert that the Court should redetermine Mr. McCormick's asserted tax liability for 2018 on a joint return basis with Mrs. McCormick. Mr. McCormick in this case claims that he is entitled to have his income tax for his taxable year 2018 determined on a joint return basis with Mrs. McCormick. See, for e.g., Dugan v. Commissioner, T.C. Memo. 1996-155. However, even assuming arguendo that Mr. McCormick'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 Mrs. McCormick for her taxable year 2018. A notice of deficiency was issued only to Mr. Johnson for her taxable year 2017. Accordingly, this Court lacks jurisdiction in this case to redetermine a deficiency as to petitioner Merrisa McCormick for her taxable year 2018. 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 Merrisa McCormick is dismissed for lack of jurisdiction. It is further
ORDERED that the caption of this case is amended to read: "Brian McCormick, Petitioner v. Commissioner of Internal Revenue, Respondent".