Opinion
1477-24
04-24-2024
LUKE TOOKER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On March 1, 2024, the Court served an Order of Dismissal for Lack of Jurisdiction granting respondent's Motion to Dismiss on the ground that no notice of deficiency or notice of determination was issued to petitioner for tax years 2021, 2022, or 2023, permitting him to invoke this Court's jurisdiction. On the same day, petitioner filed a Motion for Reconsideration of Order. Petitioner contends that the notice CP22A, dated December 25, 2023, is a notice of deficiency as authorized by section 6213. Petitioner did not attach a valid notice of deficiency or notice of determination to his Motion for Reconsideration.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
On March 27, 2024, respondent filed a Notice of Objection to Motion for Reconsideration of Order. Respondent maintains that none of the attachments attached to the Petition are notices of deficiency that demonstrate that respondent has determined a "deficiency" within the meaning of section 6211. Respondent also argues that the CP504, Notice of Intent to Seize (Levy) Your Property or Rights to Property, dated January 29, 2024, is neither a formal collection due process (CDP) levy notice providing petitioner with an opportunity to request a formal CDP hearing nor a notice of determination to petition this Court for judicial review. We agree with respondent.
A "notice of deficiency must (1) fairly advise the taxpayer that the Commissioner has, in fact, determined a deficiency and (2) specify the year and the amount." Dees v. Commissioner, 148 T.C. 1, 4 (2017) (citing Foster v. Commissioner, 80 T.C. 34, 229-230 (1983), aff'd in part, vacated in part, 756 F.2d 1430 (9th Cir. 1985)). The incomplete notice CP22A attached to the Petition states that the changes made to petitioner's Form 1040 were changes requested by him for tax year 2022. There is no indication on the CP22A that respondent determined a deficiency, as defined in section 6211 and as required by this Court's jurisprudence. Petitioner has failed to establish that respondent determined a deficiency for tax years 2021, 2022 or 2023. Therefore, this Court is without jurisdiction to redetermine the deficiency.
Based on the motion papers filed, petitioner has not shown that respondent issued a notice of deficiency or a notice of determination for any of the years in issue that would permit him to invoke the Court's jurisdiction. This Court is a court of limited jurisdiction and may exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). 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); 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." See David Dung Le, M.D., Inc., 114 T.C. at 270; Wheeler's Peachtree Pharmacy, Inc. v. Commissioner, 35 T.C. 177, 180 (1960). Petitioner invoked our jurisdiction and bearing the burden of establishing jurisdiction, he has failed to do so.
The disposition of a motion to vacate rests within this Court's discretion. See, e.g., Vaughn v. Commissioner, 87 T.C. 164, 166-167 (1986). A motion to reconsider or vacate typically is not granted without substantial error or unusual circumstances, such as mistake, inadvertence, surprise, excusable neglect, newly discovered evidence, or fraud. See Bedrosian v. Commissioner, 144 T.C. 152, 156 (2015). None of those factors appear present in this case. The Court dismissed this case for lack of jurisdiction because petitioner failed to show the Court has jurisdiction over any years in issue. Petitioner's Motion does not persuade us otherwise.
Upon due consideration and for cause, it is
ORDERED that petitioner's Motion for Reconsideration of Order, filed March 1, 2024, is denied.