Opinion
18634-21S
10-11-2022
DMITRY RATNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Travis A. Greaves, Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed November 4, 2021. Therein, respondent requests that this case be dismissed for lack of jurisdiction on the ground that no notice of deficiency has been issued to petitioner, nor has respondent made any other determination that would permit petitioner to invoke the jurisdiction of this Court.
On December 2, 2021, petitioner filed an Opposition to Motion to Dismiss for Lack of Jurisdiction.
On December 17, 2021, the Court served an Order directing respondent to file a reply to petitioner's Opposition to Motion to Dismiss for Lack of Jurisdiction. Respondent filed his reply on January 6, 2022.
For the reasons set forth below, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Background
On August 13, 2021, petitioner filed the Petition to commence this case (Petition). Line 1 of the Petition indicates that petitioner challenges a notice of deficiency, and line 5 indicates that he disputes two notices he received from respondent, both of which are attached to the Petition. The first is Notice CP11 dated May 10, 2021, explaining that the Internal Revenue Service (IRS) "found a miscalculation on [petitioner's] 2020 Form 1040," U.S. Individual Income Tax Return, which affects petitioner's Recovery Rebate Credit. See I.R.C. §§ 6428, 6428A. The notice explains that petitioner should pay the amount due of $1,800 by May 31, 2021, to avoid additional penalty and interest charges if he agrees with the changes the IRS made. The second is Notice CP504, Final Balance Due Reminder-Notice of Intent to Seize (Levy) Your Property or Rights to Property, dated August 9, 2021, explaining that the IRS had not received petitioner's overdue tax for his 2020 taxable year and threatening to levy his property or file a notice of federal tax lien (NFTL), see I.R.C. § 6323, if he did not immediately pay the $1,812.47 amount due. The notice explained how petitioner could request an appeal under the Collection Appeals Program before collection action took place if he disagreed with the IRS's intent to levy or file an NFTL.
Discussion
The Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See I.R.C. § 7442; Guralnik v. Commissioner, 146 T.C. 230, 235 (2016). Where this Court's jurisdiction is duly challenged, as here, our jurisdiction must be affirmatively shown by the party seeking to invoke that jurisdiction. See David Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 270 (2000), aff'd, 22 Fed.Appx. 837 (9th Cir. 2001); Romann v. Commissioner, 111 T.C. 273, 280 (1998); Fehrs v. Commissioner, 65 T.C. 346, 348 (1975). To meet this burden, the party "must establish affirmatively all facts giving rise to our jurisdiction." David Dung Le, M.D., Inc., 114 T.C. at 270.
In a case seeking redetermination of a deficiency, our jurisdiction depends upon the issuance of a valid notice of deficiency and the timely filing of a petition. See I.R.C. §§ 6212, 6213, and 6214; Rule 13(a) and (c); Monge v. Commissioner, 93 T.C. 22, 27 (1989). Indeed, because the issuance of a notice of deficiency is required to invoke this Court's deficiency jurisdiction, the notice is often called the taxpayer's "ticket to the Tax Court." Mulvania v. Commissioner, 81 T.C. 65, 67 (1983).
In his Motion to Dismiss, respondent asserts that he has conducted a diligent search of his records in an attempt to determine whether a notice of deficiency has been issued to petitioner, and that, based on that search, he has determined that no such notice has been issued. Moreover, respondent further asserts that, based on the foregoing search, no other determination has been made by respondent that would permit petitioner to invoke the jurisdiction of this Court.
Although Rule 34(b)(8) of the Tax Court Rules of Practice and Procedure requires the petition in a deficiency case to include the notice of deficiency, neither the Petition nor petitioner's Opposition includes any such notice. And neither of the notices attached to the Petition confer jurisdiction on this Court. Notice CP11 informs the taxpayer of amounts due as a result of mathematical or clerical errors on the return. Despite the notice's instruction to pay the amount due "[i]f you agree with the changes we made," such a notice "shall not be considered as a notice of deficiency . . . and the taxpayer shall have no right to file a petition with the Tax Court based on such notice." I.R.C. § 6213(b)(1); see also Kupersmit v. Commissioner, T.C. Memo. 2014-247, at *8. Notice CP504 identifies itself as an I.R.C. § 6331(d) notice, which is not a notice of determination that would confer jurisdiction on this Court. Cf. I.R.C. § 6330(d)(1) (granting the Tax Court jurisdiction to review an I.R.C. § 6330 determination).
Petitioner has failed to "establish affirmatively all facts giving rise to our jurisdiction." See David Dung Le, M.D., Inc., 114 T.C. at 270. Accordingly, we must grant respondent's Motion and dismiss this case for lack of jurisdiction.
Upon due consideration of the foregoing, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted, and this case is dismissed for lack of jurisdiction.