T.C. Memo. 2008-206
UNITED STATES TAX COURT
PHILIP ALBERT AND ANA M. HENDELES, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12875-07. Filed August 28, 2008.
Philip Albert and Ana M. Hendeles, pro sese.
Edward Lee Walter, for respondent.
MEMORANDUM OPINION
CHIECHI, Judge: This case is before the Court on respon-
dent’s motion to dismiss for lack of jurisdiction as supple-
mented. (For convenience, we shall refer to respondent’s motion
to dismiss for lack of jurisdiction as supplemented as respon-
dent’s motion.) We shall grant respondent’s motion.
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Background
The record establishes and/or the parties do not dispute the
following.
Petitioners’ address shown in the petition in this case was
in Lancaster, Ohio.
Respondent prepared a substitute for return for petitioners’
taxable year 2002.
On February 15, 2005, respondent issued to petitioners a
notice of deficiency with respect to their taxable year 2002.
On July 25, 2005, respondent assessed Federal income tax
(tax) of $3,944, additions to tax under sections 6651(a)(1)1 and
(2) and 6654(a) of $887.40, $552.16, and $131.77, respectively,
and interest as provided by law of $559 for petitioners’ taxable
year 2002. On July 25, 2005, respondent abated the addition to
tax under section 6654(a) that respondent had assessed for that
year. (We shall refer to any unpaid and unabated assessed
amounts with respect to petitioners’ taxable year 2002, as well
as interest as provided by law accrued after July 25, 2005, as
petitioners’ unpaid 2002 liability.)
On July 25, 2005, respondent issued to petitioners a notice
of balance due with respect to petitioners’ unpaid 2002 liabil-
ity.
1
All section references are to the Internal Revenue Code in
effect at all relevant times. All Rule references are to the Tax
Court Rules of Practice and Procedure.
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On February 20, 2006, respondent issued to petitioners a
final notice of intent to levy and notice of your right to a
hearing (notice of intent to levy) with respect to petitioners’
unpaid 2002 liability.
On March 21, 2006, petitioners submitted to respondent a tax
return (return) for their taxable year 2002. Based upon the
information that petitioners reported in that return, on June 19,
2006, respondent abated the following amounts of tax, additions
to tax, and interest as provided by law that respondent had
assessed for petitioners’ taxable year 2002: (1) $3,290 of tax,
(2) $787.40 of the addition to tax under section 6651(a)(1),
(3) $477.87 of the addition to tax under section 6651(a)(2), and
(4) $475.55 of interest as provided by law.
On January 5, 2007, petitioners submitted to respondent an
amended return for their taxable year 2002 in which they reported
total tax of zero. In response to that amended return, respon-
dent sent petitioners a letter dated May 22, 2007 (respondent’s
May 22, 2007 letter). In that letter, respondent indicated that
respondent was disallowing petitioners’ “claim for credit”.
On June 5, 2007, petitioners filed a petition commencing
this case. In the petition, petitioners alleged that the peti-
tion was a “Petition for Redetermination of a Deficiency”.
Petitioners also alleged in the petition that they disagree “with
the determination contained in the notice issued by the Internal
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Revenue Service for the year(s) or period(s) 2002, as set forth
in such notice dated 10/16/2006 and 5/22/2007”. Petitioners
attached to the petition the following two documents pertaining
to petitioners’ taxable year 2002: (1) Notice CP 504, “URGENT!!
We intend to levy on certain assets. Please respond NOW.”, dated
October 16, 2006 (October 16, 2006 Notice CP 504), and
(2) respondent’s May 22, 2007 letter disallowing petitioners’
“claim for credit”.
On February 29, 2008, respondent filed a motion to dismiss
for lack of jurisdiction. In that motion, respondent asserts
that, after a diligent search, respondent was unsuccessful in
retrieving the administrative file for petitioners’ taxable year
2002. Respondent, however, also asserts in respondent’s motion
to dismiss for lack of jurisdiction that (1) respondent was able
to retrieve Form 4340, CERTIFICATE OF ASSESSMENTS, PAYMENTS, AND
OTHER SPECIFIED MATTERS (Form 4340), for petitioners’ taxable
year 2002, (2) that form shows that on February 15, 2005, respon-
dent issued to petitioners a notice of deficiency, and (3) “There
is no record of a petition being filed with the Tax Court within
the time periods prescribed by law” with respect to that notice.
In respondent’s motion to dismiss for lack of jurisdiction,
respondent further asserts that (1) Form 4340 for petitioners’
taxable year 2002 also shows that on February 20, 2006, respon-
dent issued to petitioners a notice of intent to levy, and
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(2) “There is no record of a collection due process appeal being
filed” with respondent with respect to that notice.
On March 3, 2008, the Court issued an Order in which it
ordered petitioners to file a response to respondent’s motion to
dismiss for lack of jurisdiction. Petitioners failed to do so.
On March 17, 2008, the Court held a hearing on respondent’s
motion to dismiss for lack of jurisdiction. There was no appear-
ance by or on behalf of petitioners. Counsel for respondent
appeared and was heard.
On April 16 and June 2, 2008, respectively, respondent filed
a supplement to respondent’s motion to dismiss for lack of
jurisdiction (respondent’s first supplement) and a second supple-
ment to that motion (respondent’s second supplement). In each of
those supplements, respondent asserts that respondent found
certain documents pertaining to petitioners’ taxable year 2002
but was unable to find certain other documents pertaining to that
year. In respondent’s second supplement, respondent further
asserts that petitioner Philip Albert Hendeles (Mr. Hendeles)
stated to respondent’s counsel that “he had preserved copies of
all documents related to his case, but would not commit to
providing copies to respondent.” Respondent attached to respon-
dent’s second supplement a letter dated May 21, 2008, from Mr.
Hendeles to respondent’s counsel. That letter stated in perti-
nent part:
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I have in my possession, documents that will prove my
posture and tax case matters.
* * * I perceive no valid reason why I should assist
the Internal Revenue Service * * * in any manner,
whatsoever * * *.
On June 9, 2008, the Court issued an Order in which it
ordered petitioners (1) to file a response to respondent’s motion
to dismiss for lack of jurisdiction as supplemented by respon-
dent’s first supplement and respondent’s second supplement and
(2) to attach to that response “all documents in their possession
that are relevant to the instant case.”
On June 25, 2008, petitioners submitted a document that the
Court had filed as petitioners’ response to respondent’s motion
to dismiss for lack of jurisdiction as supplemented by respon-
dent’s first supplement and respondent’s second supplement
(petitioners’ response). Petitioners attached to that response a
letter dated May 31, 2007 (respondent’s May 31, 2007 letter) from
respondent to petitioners. That letter stated in pertinent part:
“We’ve enclosed the transcript or transcripts that you requested
on May 31, 2007.” Petitioners also attached to petitioners’
response the transcript of account for petitioners’ taxable year
2002 (2002 transcript of account) that respondent had attached to
respondent’s May 31, 2007 letter. Petitioners assert in peti-
tioners’ response that that transcript constitutes a notice of
deficiency and that therefore on June 5, 2007, petitioners
“rightfully [invoked] the jurisdiction” of the Court.
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On August 7, 2008, respondent filed a third supplement to
respondent’s motion to dismiss for lack of jurisdiction (respon-
dent’s third supplement). In that supplement, respondent asserts
that “respondent has not received a copy of any notice of defi-
ciency or notice of determination from the petitioners”. Respon-
dent further asserts in respondent’s third supplement that
(1) respondent was not successful in retrieving any other docu-
mentation pertaining to petitioners’ taxable year 2002, and
(2) “The Appeals Office has no record of a collection due process
file or the opening of a collection due process case” for that
year.
Discussion
Petitioners bear the burden of proving that the Court has
jurisdiction over this case. See Patz Trust v. Commissioner, 69
T.C. 497, 503 (1977).
It is petitioners’ position that they timely filed the
petition on June 5, 2007, in response to a notice of deficiency
with respect to their taxable year 2002. In the petition,
petitioners alleged that the petition was a “Petition for
Redetermination of a Deficiency” and that they disagree “with the
determination contained in the notice issued by the Internal
Revenue Service for the year(s) or period(s) 2002, as set forth
in such notice dated 10/16/2006 and 5/22/2007”. Petitioners
attached to the petition the following two documents pertaining
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to petitioners’ taxable year 2002: (1) The October 16, 2006
Notice CP 504 in which respondent informed petitioners that
respondent intended to levy on certain of their assets and
(2) respondent’s May 22, 2007 letter in which respondent informed
petitioners that respondent was disallowing their “claim for
credit”. In petitioners’ response, however, petitioners argue
that the notice of deficiency upon which this case is based is
the 2002 transcript of account that respondent sent them by
letter dated May 31, 2007. According to petitioners, because
that transcript shows that “petitioners owe * * * $349.07 * * *
for the tax period ending 2002”, it constitutes a notice of
deficiency.2
Respondent counters that the Court does not have jurisdic-
tion over this case. According to respondent, none of the
documents upon which petitioners rely, i.e., the October 16, 2006
Notice CP 504, respondent’s May 22, 2007 letter, and the 2002
transcript of account that respondent sent petitioners by letter
dated May 31, 2007, constitutes a notice of deficiency. Respon-
dent further points out, and petitioners do not dispute, (1) that
2
Petitioners do not argue that they filed the petition
commencing the instant case in response to the notice of defi-
ciency with respect to their taxable year 2002 that respondent
issued to them on Feb. 15, 2005. We note that even if petition-
ers had filed the petition with respect to that notice, the
petition would not have been timely filed. That is because
petitioners did not file the petition until June 5, 2007. See
sec. 6213(a).
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the record establishes that on February 15, 2005, respondent
issued to petitioners a notice of deficiency with respect to
their taxable year 2002 and (2) that “There is no record of a
petition being filed with the Tax Court within the time periods
prescribed by law” with respect to that notice. We agree with
respondent that the Court does not have jurisdiction over this
case.
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). In determining whether a letter issued by the
Commissioner of Internal Revenue (Commissioner) is a notice of
deficiency, the Court looks to whether the letter purports to be
a notice of deficiency and whether the Commissioner intended it
as such. See Abrams v. Commissioner, 84 T.C. 1308, 1310 (1985),
affd. 787 F.2d 939 (4th Cir. 1986), affd. sub nom. Benzvi v.
Commissioner, 787 F.2d 1541 (11th Cir. 1986), affd. sub nom.
Spector v. Commissioner, 790 F.2d 51 (8th Cir. 1986), affd. sub
nom. Donley v. Commissioner, 791 F.2d 383 (5th Cir. 1986), affd.
without published opinion sub nom. Becker v. Commissioner, 799
F.2d 753 (7th Cir. 1986), affd. sub nom. Alford v. Commissioner,
800 F.2d 987 (10th Cir. 1986), affd. sub nom. Gaska v. Commis-
sioner, 800 F.2d 633 (6th Cir. 1986), affd. 814 F.2d 1356 (9th
Cir. 1987).
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We have reviewed the October 16, 2006 Notice CP 504, respon-
dent’s May 22, 2007 letter, and the 2002 transcript of account
that respondent sent to petitioners by letter dated May 31, 2007.
We conclude that respondent did not intend any of those documents
to be a notice of deficiency with respect to petitioners’ taxable
year 2002. We further conclude that the October 16, 2006 Notice
CP 504, respondent’s May 22, 2007 letter, and the 2002 transcript
of account that respondent sent to petitioners by letter dated
May 31, 2007, are not, and do not purport to be, notices of
deficiency.
Petitioners do not claim that respondent issued to them any
other type of determination with respect to their taxable year
2002 that would confer jurisdiction on the Court. However, for
the sake of completeness, we shall consider whether respondent
issued to petitioners any such determination.
Petitioners did not timely file a petition with the Court in
response to the notice of deficiency with respect to their
taxable year 2002 that respondent issued to them on February 15,
2005. As a result, on July 25, 2005, respondent assessed a
deficiency in, and additions to, petitioners’ tax, as well as
interest as provided by law, for that year. On February 20,
2006, respondent issued to petitioners a notice of intent to levy
with respect to their taxable year 2002. Petitioners do not
claim that they filed a request for a hearing with respondent’s
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Appeals Office with respect to that notice. On the record before
us, we conclude that respondent did not issue to petitioners a
determination under section 6330 with respect to their taxable
year 2002. See Moorhous v. Commissioner, 116 T.C. 263, 270
(2001); Kennedy v. Commissioner, 116 T.C. 255, 263 (2001);
Offiler v. Commissioner, 114 T.C. 492, 497 (2000).
On the record before us, we further conclude that respondent
did not issue to petitioners any other type of determination with
respect to their taxable year 2002 that would confer jurisdiction
on the Court.
We hold that we do not have jurisdiction over this case.
We have considered all of the parties’ contentions and
arguments that are not discussed herein, and we find them to be
without merit, irrelevant, and/or moot.
On the record before us, we shall grant respondent’s motion.
To reflect the foregoing,
An order granting respondent’s
motion as supplemented and
dismissing this case for lack of
jurisdiction will be entered.