T.C. Summary Opinion 2003-79
UNITED STATES TAX COURT
ANDREA PAPPAS, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 9750-01S. Filed June 19, 2003.
Leon Lebensbaum and Morris R. Sherman, for petitioner.
Patricia A. Riegger, for respondent.
GOLDBERG, Special Trial Judge: This case was heard pursuant
to the provisions of section 7463 of the Internal Revenue Code in
effect at the time the petition was filed. The decision to be
entered is not reviewable by any other court, and this opinion
should not be cited as authority. Unless otherwise indicated,
subsequent section references are to the Internal Revenue Code in
effect for the year at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
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This matter is before the Court on respondent’s Motion to
Dismiss for Lack of Jurisdiction on the ground that the notice of
deficiency is invalid because respondent did not determine a
“deficiency” within the meaning of sections 6211 and 6665. As
explained below, we shall grant respondent’s motion to dismiss.
Background
On July 11, 2001, respondent mailed petitioner a notice of
deficiency. The only determination made by respondent in the
notice of deficiency was that petitioner was liable for an
addition to tax of $6,570.68 for the 1993 taxable year, pursuant
to section 6651(a)(1).
On July 31, 2001, the Court received a letter from
petitioner which we have treated as an imperfect petition. On
August 6, 2001, we ordered that petitioner file a proper amended
petition on or before October 5, 2001.
On October 3, 2001, petitioner timely filed with the Court
an amended petition, challenging the determination that she was
liable for the addition to tax for 1993 and placing in dispute a
“deficiency” of $29,203 for that year. At the time the petition
was filed, petitioner resided in Commack, New York.
On December 20, 2001, the Court notified the parties that
the case was set for trial at the Westbury, New York, trial
session beginning on March 11, 2002. On February 12, 2002,
petitioner filed a motion for a continuance from the March 11,
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2002, trial date. By order dated March 11, 2002, the Court
granted petitioner’s motion for a continuance, retained
jurisdiction, and ordered the parties to file a status report on
or before May 10, 2002.
On May 10, 2002, respondent filed a status report with the
Court, expressing a concern that the Court may lack jurisdiction
in this case. Respondent’s status report stated that the
National Office of the Internal Revenue Service was reviewing the
matter and that respondent subsequently expected to file a motion
to dismiss for lack of jurisdiction.
On May 16, 2002, respondent filed a Motion to Dismiss for
Lack of Jurisdiction on the ground that the notice of deficiency
is invalid because respondent did not determine a “deficiency”
within the meaning of sections 6211 and 6665. On May 21, 2002,
the Court ordered petitioner to file an objection, if any, to
respondent’s motion to dismiss on or before June 21, 2002.
On June 19, 2002, petitioner filed an objection to
respondent’s motion to dismiss. On September 9, 2002, pursuant
to an order of the Court, respondent’s motion was called for
hearing at the Court’s trial session in New York, New York.
Upon the basis of the record, we summarize the facts as
follows. Sometime in January 1997, petitioner filed her 1993
Form 1040, U.S. Individual Income Tax Return. Petitioner
reported no income tax liability on the 1993 tax return.
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Subsequently, in November 1999, petitioner filed an amended
income tax return, Form 1040X, Amended U.S. Individual Income Tax
Return, for the 1993 taxable year. The amount of tax shown on
the amended return was $29,203.
On December 6, 1999, respondent processed petitioner’s
amended tax return and assessed the $29,203 of income tax due, as
reported by petitioner on the Form 1040X.
After processing the amended return, respondent determined
that petitioner was liable for an addition to tax of $6,570.68,
pursuant to section 6651(a)(1), for failure to file her 1993
income tax return within the time prescribed by law. The
addition to tax was computed based on the $29,203 of tax shown on
the amended tax return. On December 6, 1999, respondent assessed
the addition to tax of $6,570.68.
Petitioner asserts that on January 31, 2000, she filed a
second amended tax return, Form 1040X, indicating that the tax
reported on the first amended return was erroneously computed.
Petitioner claims that on the second amended return she reported
no tax liability for the 1993 taxable year. Petitioner further
asserts that respondent rejected the second amended return as
untimely.
Discussion
This Court is a court of limited jurisdiction, and we may
exercise our jurisdiction only to the extent authorized by
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statute. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The
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).
The pivotal issue in this case is whether respondent
determined a “deficiency” in petitioner’s 1993 Federal income tax
within the meaning of sections 6211 and 6665. Without such a
determination, the notice of deficiency issued to petitioner is
invalid.
The term “deficiency” is defined in section 6211(a) as the
amount by which the tax imposed by subtitle A or B, or chapter
41, 42, 43, or 44, of the Internal Revenue Code exceeds the
excess of the sum of the amount shown as the tax by a taxpayer on
the taxpayer’s return plus the amounts previously assessed (or
collected without assessment) as a deficiency, over the amount of
rebates made.
Consistent with section 6211(a), the definition of a
deficiency is influenced in part by the definition of the term
“tax”. In this regard, section 6665(a) states the general rule
that additions to tax are treated as “tax” for purposes of
assessment and collection. However, section 6665(b) provides an
exception to the general rule that an addition to tax under
section 6651 will be treated as a tax for purposes of the
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deficiency procedures only to the extent that the addition to tax
is attributable to a deficiency as defined in section 6211.
The Internal Revenue Code does not explicitly provide for
the filing or acceptance of amended returns. Badaracco v.
Commissioner, 464 U.S. 386, 393 (1984). Although the
Commissioner has permitted the use of amended income tax returns,
amended returns are creatures of administrative convenience, and,
except as otherwise provided by regulations, the Commissioner is
free to accept or reject them. Terrell v. Commissioner, T.C.
Memo. 1986-507.
The parties agree that petitioner filed a delinquent Federal
income tax return and a subsequent amended income tax return for
1993. Further, petitioner asserts that she submitted a second
amended return for 1993, which respondent was free to reject.
Respondent accepted the original return and the first amended
return as filed, and assessed the $29,203 of tax reported on the
first amended return. Respondent also calculated and assessed a
section 6651(a)(1) addition to tax of $6,570.68 based on the
$29,203 of tax shown on petitioner’s first amended 1993 tax
return.
The Commissioner is authorized to immediately (summarily)
assess and collect the amount of tax shown on a taxpayer’s
original income tax return, the amount of any additional tax
shown on a subsequently filed amended income tax return, and an
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addition to tax under section 6651(a)(1) if such addition is
determined by the amount of tax shown on the taxpayer’s return.
See secs. 6665(b), 6201(a)(1); Meyer v. Commissioner, 97 T.C.
555, 559 (1991). The summary assessments described above are
assessments that are not subject to the deficiency procedures and
are not within the jurisdiction of this Court. Meyer v.
Commissioner, supra at 560.
The amount shown as tax by petitioner on her first amended
return does not constitute a deficiency within the meaning of
section 6211(a). Wilson v. Commissioner, 118 T.C. 537 (2002);
301.6211-1(a), Proced. & Admin. Regs. Further, an addition to
tax under section 6651(a)(1) is not subject to the deficiency
procedures if such addition is determined by the amount of tax
shown on the taxpayer’s return. Meyer v. Commissioner, supra at
562.
The addition to tax of $6,570.68 that respondent determined
under section 6651(a)(1) was computed by reference to the tax
shown by petitioner on her delinquently filed amended return;
thus, pursuant to section 6665(b), the addition to tax is not
attributable to a deficiency as defined in section 6211. See
Estate of Forgey v. Commissioner, 115 T.C. 142, 146-148 (2000);
Meyer v. Commissioner, supra at 559-563.
Since we have determined above that the amount of tax shown
on the amended return is not a deficiency and the section
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6651(a)(1) addition to tax is not attributable to a deficiency,
the notice of deficiency issued to petitioner contains no
determination of a deficiency and is invalid.
This is not a case where respondent seeks to cancel an
erroneously determined deficiency after we have unquestionably
obtained jurisdiction. See Hannan v. Commissioner, 52 T.C. 787
(1969). This is a case where respondent made no determination of
a deficiency in the first place. See Wilson v. Commissioner,
supra.
Having concluded that the notice of deficiency issued to
petitioner for the 1993 tax year is invalid, we lack jurisdiction
in this case. Accordingly, respondent’s Motion to Dismiss for
Lack of Jurisdiction is granted.
Reviewed and adopted as the report of the Small Tax Case
Division.
An order will be entered
granting respondent’s Motion
to Dismiss for Lack of
Jurisdiction.