Opinion
19363-22
03-07-2023
CHRISTIE SIEVERS & KEVIN SIEVERS, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Adam B. Landy, Special Trial Judge.
On August 22, 2022, the Court filed, as a petition, correspondence received from petitioners. The statements made in the petition indicate that petitioners do not contest the proposed income adjustments for taxable year 2019. Petitioners state they are making payments toward the tax liability and do not otherwise seek redetermination of the deficiency by this Court. On October 13, 2022, respondent filed a Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted. Although petitioners were afforded an opportunity to file an objection or an amended petition in response to respondent's motion, petitioners failed to do so.
On January 26, 2023, respondent filed a status report clarifying jurisdictional aspects of the case, as well as providing an update regarding further communications with petitioners regarding his motion. The report attached a copy of a notice of deficiency dated July 18, 2022, issued to petitioners with respect to the 2019 taxable year. Additionally, the report noted the parties' communications. Respondent's report advised that on January 23 and 24, 2023, petitioners, separately, contacted respondent's counsel stating that they do not dispute the adjustments contained in the notice of deficiency and would simply like to pay any remaining balance due.
Rule 40 of the Tax Court Rule of Practice and Procedure provides that a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. The Court may grant such a motion when it appears beyond doubt that the party's adversary can prove no set of facts in support of a claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Rule 34(b)(4) requires that a petition filed contain clear and concise assignments of each and every error that the taxpayer alleges to have been committed by respondent in the determination of the deficiency and penalty in dispute. See Gordon v. Commissioner, 73 T.C. 736, 739 (1980). Rule 34(b)(5) further requires that the petition contain clear and concise lettered statements of the facts on which the taxpayer bases the assignments of error. See Jarvis v. Commissioner, 78 T.C. 646, 658 (1982).
Any issue not raised in the assignments of error is deemed to be conceded. Rule 34(b)(4); Jarvis v. Commissioner, 78 T.C. at 658 n.19; Gordon v. Commissioner, 73 T.C. at 739. Further, the failure of a party to plead or otherwise proceed as provided in the Court's Rules may be grounds for the Court to hold such party in default, either on the motion of another party or on the initiative of the Court. Rule 123(a). Similarly, the failure of a petition to conform to the requirements set forth in Rule 34 may be grounds for dismissal. See Rules 34(a)(1), 123(b).
The petition herein does not satisfy the requirements of Rule 34(b)(4) and (5). There is neither an assignment of error nor allegation of fact in support of any justiciable claim. In particular, the Court would note that petitioners' position appears to be the opposite of a dispute that they owed the deficiency alleged by respondent; rather, they explicitly agreed to and state they are making payments toward the deficiency. Furthermore, the Court afforded petitioners the opportunity to file a proper amended petition and to assign error and allege specific facts concerning their liability for taxable year 2019. Petitioners failed to take advantage of this opportunity to file an amended petition. Accordingly, the Court finds that the petition filed in this case fails to meet the requirements of Rule 34 and that it fails to raise any justiciable issue.
Upon due consideration of respondent's motion and for cause, it is
ORDERED that respondent's Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted, filed October 13, 2022, is granted, and this case is dismissed on the stated ground. It is further
ORDERED that petitioners' Motion To Proceed Remotely, filed September 12, 2022, is denied as moot. It is further
ORDERED AND DECIDED that there is a deficiency in income tax in the amount of $2,084.00 due from petitioners for the taxable year 2019.