Opinion
11288-20S
01-25-2022
DAVID WILLIAM HAMMERBECK & DEVIKA ACHARYA, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Maurice B. Foley, Chief Judge
Pending before the Court is respondent's Motion to Dismiss for Lack of Jurisdiction, filed January 6, 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 petitioners for the taxable year 2013, nor has respondent made any other determination that would permit petitioners to invoke the jurisdiction of this Court for such year. By Order served March 31, 2021, the Court directed petitioners to file an objection, if any, to the Motion.
On April 19, 2021, petitioners filed a Response, therein objecting to the granting of the Motion to Dismiss. Additionally, petitioners filed therewith two separate documents: (1) a Form 1040X, Amended U.S. Individual Income Tax Return, for the 2013 taxable year, and (2) a Form 2555 -EZ, Foreign Earned Income Exclusion, for the same year. Petitioners have designated each as a Brief in Support of the Response.
For the reasons set forth below, we will grant respondent's Motion and dismiss this case for lack of jurisdiction.
Background
On July 31, 2020, petitioners filed the Petition to commence this case. Therein, petitioners checked the box indicating that they were disputing a notice of deficiency purportedly issued to them by respondent for the 2013 taxable year. No notice of deficiency was attached to the Petition. The only attachment to the Petition was an IRS Notice CP504, Notice of Intent to Seize (Levy) Your Property or Rights to Property, dated May 7, 2018, and issued to petitioner David William Hammerbeck with respect to a tax liability for the 2013 taxable year.
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, as here, 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 a necessary prerequisite to invoking 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).
All Rule references are to the Tax Court Rules of Practice and Procedure.
In his Motion to Dismiss, respondent asserts that he has conducted a diligent search of his records and has contacted IRS personnel in an attempt to determine whether a notice of deficiency has been issued to petitioners for the 2013 taxable year. Respondent asserts that, based on the foregoing, he has determined that no such notice has been issued. Moreover, respondent further asserts that, based on the foregoing, no other determination has been made by respondent that would confer jurisdiction on this Court with respect to petitioners' 2013 taxable year.
In their Response, petitioners do not contend that they have received a notice of deficiency for the 2013 taxable year and do not attach thereto any notice (deficiency, determination, or otherwise) that would confer jurisdiction on this Court for such year. Rather, petitioners assert that their attempts to file an amended return with the IRS for the 2013 taxable year have been rebuffed and that, "[u]nder equitable tolling principals [sic] this Court should permit and mandate the IRS to allow the amended return."
After having been apprised of the jurisdictional allegations set forth in respondent's Motion to Dismiss and given an opportunity to respond, petitioners have not provided the Court with any notice of deficiency, notice of determination, or any other notice sufficient to confer jurisdiction on this Court for the 2013 taxable year. Consequently, petitioners have failed to "establish affirmatively all facts giving rise to our jurisdiction." 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. See Versteeg v. Commissioner, 91 T.C. 339, 340-341 (1988) (granting the Commissioner's motion to dismiss for lack of jurisdiction where no notice of deficiency had been issued for the taxable year at issue and the taxpayer instead attached to the petition a final notice of intent to levy).
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.