T.C. Memo. 1997-35
UNITED STATES TAX COURT
WILLIAM M. HEZEL, Petitioner v. COMMISSIONER
OF INTERNAL REVENUE, Respondent
Docket Nos. 20862-96, 20863-96. Filed January 21, 1997.
William M. Hezel, pro se.
Peter Reilly and Lloyd E. Mueller, for respondent.
MEMORANDUM OPINION
DAWSON, Judge: These cases were assigned to Special Trial
Judge Robert N. Armen, Jr., pursuant to the provisions of section
7443A(b)(4) and Rules 180, 181, and 183.1 The Court agrees with
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the taxable years in
issue, and Rule references are to the Tax Court Rules of Practice
(continued...)
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and adopts the opinion of the Special Trial Judge, which is set
forth below.
OPINION OF THE SPECIAL TRIAL JUDGE
ARMEN, Special Trial Judge: These cases are before the
Court on respondent's Motions to Dismiss for Lack of Jurisdiction
and petitioner's Motions to Restrain Assessment, Levy, Lien, and
Collection, as supplemented. The principal issue for decision is
whether the Court has jurisdiction over the petitions filed in
these cases.
Background
On June 23, 1995, respondent issued a notice of deficiency
to petitioner in which respondent determined deficiencies in and
additions to petitioner's Federal income taxes as follows:
Additions to Tax
Year Deficiency Sec. 6651(a)(1) Sec. 6654
1989 $54,253 $9,608 $2,173
1990 58,904 9,321 2,884
1991 59,836 9,796 2,425
Also on June 23, 1995, respondent issued a separate notice
of deficiency to petitioner in which respondent determined a
deficiency in petitioner's Federal income tax for 1992 in the
amount of $42,608 and additions to tax under sections 6651(a) and
6654(a) in the amounts of $6,901 and $1,122, respectively. Both
notices of deficiency were addressed to petitioner at 6001 Knight
(...continued)
and Procedure.
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Arnold Rd., Memphis, Tennessee 38115 (the Knight Arnold Rd.
address).
By letter dated July 6, 1995, petitioner mailed the notices
of deficiency back to respondent marked "Refusal For Cause
Without Dishonor U.C.C. 3-501". Petitioner's July 6, 1995,
letter, to which an "Affidavit and Declaration of Truth" was
appended, contained various tax protester arguments.
On September 25, 1996, petitioner filed two separate
petitions with the Court contesting the determinations made by
respondent in the above-described notices of deficiency. The
petitions arrived at the Court in an envelope bearing a U.S.
Postal Service postmark date of September 23, 1996. Petitioner
indicated on each of the petitions that his address was the
Knight Arnold Rd. address.
On October 16, 1996, petitioner filed a Motion to Restrain
Assessment, Levy, Lien, and Collection in each docket. Attached
to petitioner's motions are copies of a Notice of Levy and a
Notice of Federal Tax Lien. These documents indicate that
respondent is attempting to collect the deficiencies and the
additions to tax that she determined are owing from petitioner
for the taxable years 1989 through 1992. Petitioner contends
that respondent's collection efforts are improper because
petitioner filed petitions with the Court contesting respondent's
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determinations for the taxable years 1989 through 1992. On
October 23, 1996, petitioner supplemented his motions.
On October 25, 1996, respondent filed a Motion to Dismiss
for Lack of Jurisdiction in each docket. In her motions,
respondent asserts that the Court lacks jurisdiction because of
petitioner's failure to file his petitions within the 90-day
period prescribed in section 6213(a). In Responses filed to
petitioner's motions to restrain assessment and collection,
respondent contends that the Court lacks jurisdiction to grant
such relief in these cases.
In a Statement filed December 17, 1996, petitioner contends
that the notices of deficiency that were mailed to him on June
23, 1995, are null and void because respondent did not respond to
his letter dated July 6, 1995.
Discussion
This Court's jurisdiction to redetermine a deficiency
depends upon the issuance of a valid notice of deficiency and a
timely filed petition. Rule 13(a), (c); Monge v. Commissioner,
93 T.C. 22, 27 (1989); Normac, Inc. v. Commissioner, 90 T.C. 142,
147 (1988). Section 6212(a) expressly authorizes the
Commissioner, after determining a deficiency, to send a notice of
deficiency to the taxpayer by certified or registered mail. It
is sufficient for jurisdictional purposes if the Commissioner
mails the notice of deficiency to the taxpayer at the taxpayer's
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"last known address." Sec. 6212(b); Frieling v. Commissioner, 81
T.C. 42, 52 (1983). The taxpayer, in turn, has 90 days (or 150
days if the notice is addressed to a person outside of the United
States) from the date that the notice of deficiency is mailed to
file a petition in this Court for a redetermination of the
deficiency. Sec. 6213(a).
There is no dispute that respondent mailed the notices of
deficiency to petitioner at his last known address on June 23,
1995. Further, petitioner admits that he received the notices of
deficiency and, in early July 1995, returned them to respondent
marked "Refusal For Cause Without Dishonor U.C.C. 3-501".
Petitioner did not file his petitions for redetermination with
the Court until September 25, 1996--some 15 months after the
notices of deficiency were mailed. Thus, it is evident that
petitioner did not timely file his petitions for redetermination.
Consequently, we will dismiss these cases for lack of
jurisdiction on the ground that petitioner failed to file his
petitions within the 90-day time period prescribed in section
6213(a).2
2
Although petitioner cannot pursue his case in this Court,
he is not without a remedy. In short, petitioner may pay the
tax, file a claim for refund with the Internal Revenue Service,
and if the claim is denied, sue for a refund in the Federal
District Court or the U.S. Court of Federal Claims. See
McCormick v. Commissioner, 55 T.C. 138, 142 (1970).
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As a final matter, we turn to petitioner's motions to
restrain assessment and collection. Section 6213(a) provides
that the Tax Court may enjoin assessment or collection if the
Commissioner is attempting to assess or collect amounts that have
been placed in dispute in a timely-filed petition for
redetermination. Powerstein v. Commissioner, 99 T.C. 466, 471-
472 (1992); Powell v. Commissioner, 96 T.C. 707, 711 (1991). The
record reflects that the amounts that respondent has assessed and
is attempting to collect relate to petitioner's tax liability for
1989, 1990, 1991, 1992. As a consequence of our holding that we
lack jurisdiction over those years, it follows that we lack
jurisdiction to enjoin assessment and collection. Powell v.
Commissioner, supra. Accordingly, we will deny petitioner's
motions for lack of jurisdiction.
To reflect the foregoing,
Appropirate orders granting
respondent's motions, denying petitioner's
motions, and dismissing these cases for
lack of jurisdiction will be entered.