T.C. Memo. 2005-219
UNITED STATES TAX COURT
JOHN ERWIN HUNTER II AND ALMA ESTEBAN HUNTER, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 1397-05. Filed September 20, 2005.
John Erwin Hunter II and Alma Esteban Hunter, pro sese.
A. Gary Begun, for respondent.
MEMORANDUM OPINION
LARO, Judge: This matter is before the Court on
respondent’s motion to dismiss for failure to state a claim upon
which relief may be granted. All section references are to the
Internal Revenue Code, as amended, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
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Background
On December 2, 2004, respondent issued a notice of
deficiency in which respondent determined a $131,093 deficiency
in petitioners’ 2001 Federal income tax and a $26,218.60
accuracy-related penalty under section 6662. In January 2005,
the Court filed as an imperfect petition a document submitted by
petitioners in which they stated that they were contesting the
amounts set forth in the notice of deficiency.1 A week later,
the Court ordered petitioners to file a proper amended petition
and to pay the filing fee. On February 28, 2005, petitioners
filed an amended petition (first amended petition) in which they
alleged:
We are requesting injunctive relief totaling $50,000. Plus
costs as The United States Tax Court deems appropriate.
Because our 1040 tax form is subject to the 3 year statute
of limitations that binds us and the commissioner. Instead,
IRS issued a 90 day letter without conducting a field audit
at our former place of residence. This arbitrary decision
involves $157,311.60 worth of retaliation and harassment
contrary to The Tax Code or IRS rules. We ask dismissal or
reversal of all determinations on record.
About 2 weeks later, respondent filed a motion pursuant to
Rule 51(a) for a more definite statement as to the nature of
petitioners’ first amended petition, the relief requested
therein, and the reasons for which petitioners believed they were
1
At the time of filing, petitioners resided in Ann Arbor,
Michigan.
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entitled to such relief. Petitioners submitted an unsigned
“Answer” to this motion in which they stated:
We come before the Court again. As we are seeking
injunctive relief totaling $57,083.67 in consideration. To
comply with the 22 March order, however, we ask the Court to
notice several specific errors in the respondent’s position:
(a) For the quarter ending 31 December 2005, the $976.00
deficiency or liability is underscored by our $1,169.36 in
paper assets such as mutual funds or a certificate of
deposit. This means our working capital or current ratio is
1.198 or 1 to 1. With $193.36 being our net working
capital. These positive numbers are set-off against the
phase-out formula that applies to the alternative minimum
tax liability.
The $56,107.87 Lein/Levy [sic] assessment may involve
questionable legality. Such as:
(a) Our 2002 tax form and supporting materials were sent via
certified mail, which was postmarked 09 April 2003. That
being 6 days prior to the 15 April 2003 deadline. However,
these facts are not mentioned in the transcript of 1-07-05.
(b) Our tax filing date was erroneously reported as 07-07-
03. This constitutes an 82 to 88 day time gap, which
allowed us to be hit with a $55,686.75 tax assessment plus
interest and penalties. Thus amounting to an overall tax
liability of $56,107.87 or more. We respectfully disagree
with ambiguous nature of said procedure.
Approximately 1 month later, the Court granted respondent’s
motion for a more definite statement and ordered petitioners to
file an amended petition by May 13, 2005.
On May 16, 2005, petitioners, in purported compliance with
the Court’s order, filed with the Court a second amended
petition. The second amended petition stated:
Procedure Rule 331 directly answers the respondent’s motion
for a more definite statement. IN SUPPORT THEREOF, we
respectfully show unto the Court: The Detroit Appeals Office
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has granted us relief under IRC 6213 and 6330. Regardless
of the Notice of Deficiency alleging $131,093.00 in tax
liability. Plus a $26,218.60 penalty for tax year 2001.
WHEREFORE, we the petitioners pray: that the Court enter an
order requiring the respondent to answer our claim. Or the
court award us injunctive relief.
On June 9, 2005, respondent filed the motion at hand. In
his motion, respondent asserts that petitioners in their second
amended petition have made no factual or justiciable claims of
error against respondent’s notice of deficiency. Respondent also
notes that petitioners have set forth in their second amended
petition no facts in support of any claimed error on the part of
respondent.
On July 25, 2005, petitioners submitted a notice of
objection to respondent’s motion, seeking costs, damages, and
refunds “starting at $157,311.60” for 2001. In support,
petitioners stated:
(1) On June 5, 2001, we did accomplish our Certified
Affidavit of Support under United States Immigration Law
213A of said Act. We did submit those documents to The
Department of Justice and The INS as well. The financial
statement and supporting paperwork are answer and rebuttal
to the respondent’s notice of deficiency dated December 2,
2004. In failing to collect our Affidavit, America is
responsible for reckless and intentional disregard under 26
USC 7433.
(2) Under the February 17, 2005, letter of determination,
not following proper procedure also gives rise to an action
for economic damages under 26 USC 7430. Since the
respondent did willfully understate our tax liability by
invalid audit or investigation dated 7/17/2003, 6/23/2004,
and 11/18/2004. This inaccurate information was used in
full during and after the respondent’s issuing of the
deficiency notice dated December 2, 2004.
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(3) We think our position is consistent with the
determination made under Arnett v. United States. (845 F
Supp 796 1994) Relative to White v. Commissioner. (T.C. Memo
1981-609) Furthermore, we think that our Accounts
Receivable can move our claim well past the 15 April 2005
Statute of Limitations under Klien v. Commissioner. (45 T.C.
308 1965) Nor did we sign away our taxpayer rights under
Goldsmith v. Commissioner. (31 T.C. 56 1958)
(4) We did exhaust our administrative remedies in
requesting refund of $1,593.91 taken from tax year 2004. We
would very much appreciate receiving the amount in question.
Along with the $768.99 taken for tax year 2000-2001. As
this issue is a matter of prior judgment.
(5) WHEREFORE, we pray that the court affirm or grant our
notice of objection.
Discussion
Rule 34(b)(4) requires that a petition filed in this Court
contain clear and concise assignments of each and every error
that the petitioning taxpayer alleges to have been committed by
the Commissioner in the determination of any deficiency, addition
to tax, or penalty in dispute. Rule 34(b)(5) further requires
that the petition contain clear and concise lettered statements
of the facts on which the taxpayer bases the assignments of
error. See Funk v. Commissioner, 123 T.C. 213, 215 (2004);
Jarvis v. Commissioner, 78 T.C. 646, 658 (1982); Meeker v.
Commissioner, T.C. Memo. 2005-146; Stearman v. Commissioner, T.C.
Memo. 2005-39. Any issue not raised in the pleadings is deemed
conceded. See Rule 34(b)(4); Funk v. Commissioner, supra; Jarvis
v. Commissioner, supra at 658 n.19; Gordon v. Commissioner, 73
T.C. 736, 739 (1980); Meeker v. Commissioner, supra; Stearman v.
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Commissioner, supra. Further, the failure of a party to plead or
otherwise proceed as provided in the Court’s Rules may be grounds
for the Court to hold the party in default, either on the motion
of another party or on the initiative of the Court. See Rule
123(a); Meeker v. Commissioner, supra; Stearman v. Commissioner,
supra; Ward v. Commissioner, T.C. Memo. 2002-147. The Court also
may dismiss a case and enter a decision against a taxpayer for
his failure properly to prosecute or to comply with the Rules of
this Court. See Rule 123(b); Meeker v. Commissioner, supra;
Stearman v. Commissioner, supra; Ward v. Commissioner, supra.
We agree with respondent that petitioners have failed to
state a claim upon which relief can be granted. See Funk v.
Commissioner, supra at 216-217; Meeker v. Commissioner, supra;
Stearman v. Commissioner, supra. Although they had ample
opportunities to do so, petitioners have still failed to present
the Court with a petition containing clear and concise
assignments of errors that petitioners allege respondent has
committed in the determination of the deficiency or the
associated penalty. Petitioners have likewise failed to include
in their petition clear and concise statements of the facts on
which petitioners base their assignments of error. Instead,
petitioners have included in their petitions and other filings
with the Court virtually incoherent arguments. The petition
neither conforms to this Court’s Rules of Practice and Procedure
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nor states a claim upon which relief can be granted. Because of
the absence from the petition of specific justiciable allegations
of error and of supporting facts, this Court will grant
respondent’s motion. See Funk v. Commissioner, supra.
Accordingly, we shall dismiss petitioners’ case and enter a
decision sustaining respondent’s determinations contained in the
notice of deficiency for 2001.
An appropriate order of
dismissal and decision will be
entered.