Opinion
7070-23
07-21-2023
MICHAEL THURSTON, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge
On June 22, 2023, respondent filed in the above-docketed case a Motion To Dismiss for Lack of Jurisdiction and To Strike Petitioner's Request for Review of a Notice of Final Determination for Disallowance of Interest Abatement Claim, seeking dismissal of this case in part as to such notice on the grounds that: (1) No notice of final determination for full or partial disallowance of an interest abatement claim pursuant to section 6404(h) of the Internal Revenue Code (I.R.C.), had been sent to petitioner for the tax year 2021; and (2) petitioner had not submitted to the Internal Revenue Service (IRS) a claim for interest abatement for 2021. Respondent further advised that the case was properly before the Court as to a notice of deficiency dated February 6, 2023, issued to petitioner with respect to the 2021 taxable year.
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 case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the issuance by the Commissioner of a valid notice of deficiency to the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Frieling v. Commissioner, 81 T.C. 42, 46 (1983). 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. 65, 67 (1983).
Similarly, this Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, I.R.C., depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330, I.R.C. Secs. 6320(c) and 6330(d)(1), I.R.C.; Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer have requested a hearing before the IRS Office of Appeals in reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320, Final Notice of Intent To Levy and Notice of Your Right to a Hearing (or the equivalent Notice CP90, Intent to seize your assets and notice of your right to a hearing, depending on the version of the form used), or analogous post-levy notice of hearing rights under section 6330(f), I.R.C. (e.g., a Notice of Levy on Your State Tax Refund and Notice of Your Right to a Hearing).
In a case based upon failure of the IRS to abate interest, jurisdiction of the Court depends, in part, on the timely filing of a petition by the taxpayer. Sec. 6404(h), I.R.C.; Rule 280(b), Tax Court Rules of Practice and Procedure. Again, if the conditions of section 7502, I.R.C., are satisfied, a petition which is timely mailed may be treated as having been timely filed. Jurisdiction under section 6404(h), I.R.C., also rests in part on issuance of a determination by the IRS under that section or the failure by the IRS to issue such a determination within 180 days of the filing of a claim for interest abatement. More specifically, section 6404(h), I.R.C., provides:
(1) In general.--The Tax Court shall have jurisdiction over any action brought by a taxpayer who meets the requirements referred to in section 7430(c)(4)(A)(ii) to determine whether the Secretary's failure to abate interest under this section was an abuse of discretion, and may order an abatement if such action is brought--
(A) at any time after the earlier of--
(i) the date of the mailing of the Secretary's final determination not to abate such interest, or
(ii) the date which is 180 days after the date of the filing with the Secretary (in such form as the Secretary may prescribe) of a claim for abatement under this section, and
(B) not later than the date with is 180 days after the date described in subparagraph (A)(i).
Other types of IRS notice which may form the basis for a petition to the Tax Court, likewise under statutorily prescribed parameters, include a Notice of Final Determination Concerning Your Request for Relief From Joint and Several Liability, a Notice of Determination of Worker Classification, Notice of Certification of Your Seriously Delinquent Federal Tax Debt to the State Department, or a Notice of Final Determination Concerning Whistleblower Action. No pertinent claims involving section 6015, 7436, 7345, or 7623, I.R.C., respectively, have been implicated here. Similarly absent is any suggestion that the perquisites have been met to support one of the statutorily described declaratory judgment actions that may be undertaken by the Court.
Petitioner was served with a copy of respondent's motion and on July 18, 2023, filed an objection. Therein, petitioner did not directly deny the jurisdictional allegations set forth in respondent's motion, i.e., petitioner did not claim or show that the IRS had sent a notice of final determination for disallowance of interest abatement claim, nor did he reference any request for interest abatement. Rather, petitioner took the position that granting the motion would eliminate a relevant part of the suit and would prevent fair a proceeding. However, in summarizing the pertinent claims, petitioner stated as follows: "The present dispute concerns the Respondent's final determination to disallow the Petitioner's claim for head of household status and their failure to rectify the error of a stimulus check being issued to the wrong person. These issues fall within the subject matter of the suit and warrant the court's consideration." Thus, even beyond the controlling jurisdictional parameters quoted above, insofar as these claims would appear to fall within the purview of the of the deficiency litigation properly before the Court, and would not appear to relate to interest abatement, no meaningful difference or perceptible harm has been identified.
Upon due consideration, it is
ORDERED that respondent's Motion To Dismiss for Lack of Jurisdiction and To Strike Petitioner's Request for Review of a Notice of Final Determination for Disallowance of Interest Abatement Claim, is granted. This case is dismissed for lack of jurisdiction as to any interest abatement claim for 2021, and references in the petition to such a notice are deemed stricken.