[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-14225 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Non-Argument Calendar
MARCH 6, 2009
________________________
THOMAS K. KAHN
CLERK
Agency No. 8390-08
O. DAVID SALERY,
Petitioner-Appellant,
versus
COMMISSIONER OF IRS,
Respondent-Appellee.
________________________
Petition for Review of a Decision of the
United States Tax Court
_________________________
(March 6, 2009)
Before BIRCH, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
O. David Salery, proceeding pro se, appeals the Tax Court’s dismissal of his
petition for lack of jurisdiction. After a thorough review of the record, we affirm.
Salery filed a pro se petition disputing “notice of determination concerning
collection action” in the U.S. Tax Court alleging that he had received a notice of
taxes owed but that no liability in fact existed.1 Attached to the petition was a copy
of a letter showing that Salery indicated on his 2006 tax return that he owed taxes
in the amount of $4,951. According to the letter, Salery had not paid the taxes
owed, thus accruing interest and penalties, for a total amount due of $6983.66.
Salery moved for a hearing, to compel discovery, and to show proof of
liability. Salery also challenged the IRS’s jurisdiction over him. Salery admitted,
however, that he had not received a notice of deficiency from the IRS. He
requested that the Tax Court conduct a determination of his liabilities.
Upon a motion by the government, the Tax Court dismissed the petition,
finding that there was no valid notice of deficiency and thus there was no
jurisdiction to seek redetermination of the deficiency. Salery moved to vacate the
“void” judgment, alleging that the Tax Court judge had committed fraud upon the
court. After the court denied the motion, Salery appealed, arguing that the court
and the IRS lacked jurisdiction to impose tax liabilities, and the court violated his
due process rights and committed fraud by failing to terminate the tax liens issued
1
This is not Salery’s first challenge to his tax liabilities. See Salery v. C.I.R., 203 Fed.
Appx. 251 (11th Cir. 2006) (challenging notice of deficiency for tax year 2001).
2
against him.2
We review issues of jurisdiction de novo. Redeker-Barry v. United States,
476 F.3d 1189, 1190 (11th Cir. 2007). We also review de novo the Tax Court’s
interpretations of the Internal Revenue Code. L.V. Castle Inv. Group, Inc. v.
Comm’r, 465 F.3d 1243, 1245 (11th Cir. 2006).
The Tax Court has jurisdiction over challenges to an IRS determination of
income tax liability. 26 U.S.C. §§ 6212(a), 6213(a), 7442. The IRS has the
authority to determine the amount of taxes owed and “shall assess all taxes
determined by the taxpayer . . . as to which returns or lists are made” under the
Internal Revenue Code (“IRC”). 26 U.S.C. § 6201(a)(1). If the IRS determines
that there is a deficiency in the amount owed, the IRS must notify the taxpayer of
the deficiency. 26 U.S.C. § 6212. The IRC defines deficiency as the difference
between the taxpayer’s liability (as determined by the IRS) and the liability shown
on the taxpayer’s return. 26 U.S.C. § 6211. The mailing of a valid notice of
deficiency is generally a prerequisite to formal assessment and collection of the
deficiency by the IRS.3 Id. § 6213(a).
A statutory notice of deficiency has a specific, technical meaning. As this
2
To the extent that Salery claims the government had no jurisdiction to assess taxes against
him, that argument is without merit. See 26 U.S.C. §§ 6012, 6651, 7701(a)(1).
3
Alternatively, the IRS may issue a lien and place a levy on property to collect unpaid taxes.
As the government explains, no lien has been imposed in this case.
3
court has explained, the plain language of § 6212(a) requires that the notice, “at a
minimum indicate that the IRS has determined that a deficiency exists for a
particular year and specify the amount of the deficiency.” See Benzvi v. C.I.R.,
787 F.2d 1541, 1542 (11th Cir. 1986); see also 26 U.S.C. § 6212(a).
A taxpayer who receives a notice of deficiency may petition the Tax Court
for a “redetermination of the deficiency.” 26 U.S.C. § 6213(a). Thus, before a
taxpayer may petition the Tax Court for a redetermination of deficiency, the IRS
first must have notified the taxpayer that it has examined the taxpayer’s return and
made a deficiency determination. Id. § 6214; Benzvi, 787 F.2d at 1542.
Here, as Salery repeatedly concedes, no notice of deficiency ever issued.
Moreover, the letter Salery received cannot be construed as a notice of deficiency
because the letter merely identified the amount of taxes owed according to Salery’s
own tax returns. At no time has the IRS concluded that the amount owed differs
from the amount Salery identified on his returns. Thus, the letter does not qualify
as a notice of deficiency.
In the absence of such notice, the Tax Court properly determined that it
lacked jurisdiction over Salery’s petition. Accordingly, we AFFIRM.
4