T.C. Memo. 1997-489
UNITED STATES TAX COURT
HAROLD L. PERRY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 15108-97. Filed October 29, 1997.
Jordan Musen, for respondent.
MEMORANDUM OPINION
CARLUZZO, Special Trial Judge: This case was assigned
pursuant to the provisions of section 7443A(b)(3) of the
Internal Revenue Code, and Rules 180, 181, and 182,1 and is
before the Court on respondent's Motion to Dismiss for Failure
1
Rule references are to the Tax Court Rules of Practice and
Procedure.
- 2 -
to State a Claim Upon Which Relief Can Be Granted, filed
September 2, 1997, and petitioner's Motion to Change Place of
Hearing, filed October 7, 1997. Both motions were heard at the
Court's Motions Session in Washington, D.C., on October 8, 1997.
Background
On February 7, 1997, respondent mailed a letter to
petitioner advising him that respondent had no record of having
received a Federal income tax return from him for the year 1991.
In this letter respondent: (1) Suggested that petitioner file a
1991 return, or explain why he was not required to do so; and (2)
invited petitioner to provide any information that petitioner
wanted respondent to consider in connection with the matter.
Apparently in response to respondent's February 7 letter to
him, petitioner sent a letter to respondent, dated March 3, 1997.
Petitioner's March 3 letter consists of three printed pages of 32
questions or statements, many of which include references to
Supreme Court or other Federal Court citations ostensibly in
support of, or authority for, the specific question or statement.
Question number 31 requests that respondent "prove to this
Citizen how the IRS Commissioner has jurisdiction over any
subject matter concerning this Citizen". In the final paragraph
of the letter, petitioner states, "this Citizen hereby pleads and
does give notice that the IRS Commissioner has an absence of
jurisdiction over this Citizen's person".
- 3 -
On April 11, 1997, respondent issued a notice of deficiency
to petitioner determining a deficiency in, and additions to, his
Federal income tax for 1991. In the notice of deficiency
respondent determined that petitioner failed to file a Federal
income tax return for 1991 and report thereon certain income (as
reported to respondent by various payers) received by him during
that year.
In response to the above-mentioned notice of deficiency, on
July 14, 1997, petitioner filed a timely petition with the Court.
He was residing in Oakland, California, at that time. In the
petition, petitioner: (1) Admits that he did not file a Federal
income tax return for the year 1991; (2) alleges that he has been
denied the opportunity to meet with respondent to discuss his tax
liability for that year; and (3) alleges that respondent failed
to respond to his March 3 letter, in which he "requested
information" from respondent. The petition does not assign error
to any of the adjustments made in the notice of deficiency, nor
contain any allegations of fact in support of any assignments of
error. In the prayer for relief, petitioner requests "that this
matter be referred back to the Commissioner with instructions
that the Commissioner respond to * * * [his] request for
information". Petitioner's March 3 letter is attached to, and
incorporated by reference into, the petition.
- 4 -
On September 2, 1997, respondent filed a Motion to Dismiss
for Failure to State a Claim Upon Which Relief Can Be Granted.
By order dated September 4, 1997, petitioner was directed to file
a proper amended petition setting forth with specificity each
error allegedly made by respondent in the determination of the
deficiency and separate statements of every fact upon which the
assignments of error are based. In addition, the order provided
that respondent's motion would be called for hearing in
Washington, D.C., on October 8, 1997. In this regard
petitioner's attention was called to Rule 50(c).2
Petitioner did not file an amended petition. Neither did
he submit a written statement pursuant to Rule 50(c). Instead,
on October 7, 1997, petitioner filed a Motion to Change Place of
Hearing in which he requested that the hearing be held in San
Francisco, California, because he could not afford to travel to
Washington, D.C.
Discussion
Petitioner's Motion
Rule 130(a) provides that if a hearing is to be held on a
motion, then such hearing ordinarily will be held in Washington,
2
Rule 50(c) provides: If a motion is noticed for hearing,
then a party to the motion may, prior to or at the time for such
hearing, submit a written statement of such party's position
together with any supporting documents. Such statement may be
submitted in lieu of or in addition to attendance at the
hearing."
- 5 -
D.C., at the Court's weekly motions session. To suit the
convenience of the parties and the Court, the Court may on its
own motion, or pursuant to the written request of any party to
the motion, direct that the hearing be held at a location other
than Washington, D.C. Rule 50(b)(2).
In this case petitioner has made no showing that an
evidentiary hearing is necessary with respect to respondent's
motion. See generally Maxfield v. Commissioner, 153 F.2d 325,
327-328 (9th Cir. 1946) (construing a Rule of this Court no
longer in effect); Bolton v. Commissioner, T.C. Memo. 1990-181.
Given the nature of respondent's motion, and considering the
representations, allegations and prayer for relief made in the
petition, it is clear to us that any opposition petitioner might
have to respondent's motion would not depend upon the
introduction of evidence, but rather would consist of argument(s)
that could have been submitted in a written statement. We
understand that the expenses involved in traveling from San
Francisco to Washington, D.C. might have effectively prevented
petitioner's attendance at the hearing, but our Rules clearly
provide that his attendance was not required. Rules 50(c),
130(b). Petitioner was advised of the opportunity to submit a
written statement in lieu of his attendance at the hearing in
Washington, D.C. (and given the opportunity to file an amended
petition), and he has failed to so. Changing the place of the
- 6 -
hearing in this matter from Washington, D.C. to San Francisco, as
requested in petitioner's motion filed one day prior to the date
of the scheduled hearing, would serve no purpose but to delay the
resolution of respondent's motion. Consequently, petitioner's
motion will be denied.
Respondent's Motion
Rule 34(b)(4) requires that a petition filed in this Court
contain clear and concise assignments of each and every error
that the taxpayer alleges to have been committed by the
Commissioner in the determination of the deficiency and the
additions to tax in dispute. Rule 34(b)(5) further requires that
the petition contain clear and concise statements of the facts on
which the taxpayer bases the assignments of error. See Jarvis v.
Commissioner, 78 T.C. 646, 658 (1982).
The petition filed in this case does not satisfy the
requirements of Rule 34(b)(4) and (5). Although petitioner
states that he disagrees with respondent’s determinations, there
is neither assignment of error nor allegation of fact in support
of any assigned error. After having been provided the
opportunity to do so, petitioner failed to file a proper amended
petition as he was directed to by the Court. The allegations
contained in the petition that petitioner has not had an
opportunity to meet with respondent to discuss his 1991 Federal
income tax liability and that respondent has failed to respond to
- 7 -
his request for information do not present justiciable issues.
Furthermore, the Court does not have the power to grant the
unusual relief requested in the petition.
Because the petition fails to state a claim upon which
relief can be granted, we shall grant respondent's motion to
dismiss. See Rules 34(a)(1), 123(b); Scherping v. Commissioner,
747 F.2d 478 (8th Cir. 1984).
To reflect the foregoing,
An appropriate order and
decision will be entered.