T.C. Memo. 2009-252
UNITED STATES TAX COURT
SUZANNE GORMELEY, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 26814-08. Filed November 9, 2009.
Carlton M. Smith, for petitioner.
Robert W. Mopsick, for respondent.
MEMORANDUM OPINION
COHEN, Judge: The petition in this case was filed in
response to a notice of final determination denying relief under
section 6015 for unpaid Federal income tax for 2004. This case
is now before the Court on cross-motions to dismiss for lack of
jurisdiction. Respondent’s motion is based on petitioner’s
failure to file the petition within 90 days from the mailing of
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the notice. Petitioner’s motion seeks dismissal for lack of
jurisdiction on the ground that she was not a party to a joint
Federal income tax return. All section references are to the
Internal Revenue Code.
Background
Some of the facts have been stipulated, and the stipulated
facts are incorporated as our findings by this reference.
Petitioner resided in New Jersey at the time that she filed her
petition.
Petitioner and Erdal Kaya (Kaya) were married on March 30,
2004. During 2004, both petitioner and Kaya were employed in a
Dunkin’ Donuts franchise owned by Poshka, Inc. Petitioner was
paid $2,000.83 by Poshka, Inc., during 2004, and $58 was withheld
for Federal income tax. Kaya was paid $42,725.92 by Poshka,
Inc., during 2004, and $561 was withheld for Federal income tax.
In 2005, Kaya told petitioner that he would have an
accountant prepare tax returns for them for 2004, but petitioner
does not recall seeing or signing a return for 2004. Sometime in
2005, Kaya left the United States and returned to Turkey.
Petitioner has not lived with Kaya since that time although they
are not yet divorced. She now denies that she intended to be a
party to a joint return for 2004.
According to Internal Revenue Service (IRS) records, a joint
Federal income tax return was filed for petitioner and Kaya for
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2004, reporting $40,109 as adjusted gross income, $813 as income
tax due, and $817 as income tax withheld. On examination of the
return, the IRS disallowed certain itemized and business
deductions that had been claimed and allowed only the standard
deduction for a joint return. On January 7, 2008, the IRS
assessed additional tax, an accuracy-related penalty, and
interest, bringing the amount due to $2,942.97.
On January 31, 2008, petitioner submitted a Form 8857,
Request for Innocent Spouse Relief, to the IRS. She did not
answer the questions on the Form 8857 relating to whether she and
Kaya had filed a joint return. On July 23, 2008, the IRS sent to
petitioner, at her correct address, a final determination denying
her request for relief. The original final determination was
returned to the IRS by the U.S. Postal Service marked
“unclaimed”, and a copy was mailed to petitioner on September 29,
2008, after she inquired about it. The petition was postmarked
October 29, 2008, 98 days after the first mailing of the final
determination.
Respondent filed a motion to dismiss for lack of
jurisdiction on the ground that the petition was untimely under
section 6015(e)(1)(A) or 7502. Petitioner responded with a
cross-motion to dismiss for lack of jurisdiction, alleging that
the Court’s jurisdiction under section 6015(b), (c), and (f) is
dependent on the filing of a joint return and that she did not
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file a joint return with Kaya for 2004. In an affidavit in
support of her cross-motion, petitioner stated:
I never told Erdal to file a joint return for
2004, and I did not authorize him to sign a joint
return for me. I had assumed that he would get a
married filing separately return prepared for me, if he
desired, though I thought one was not required.
However, I may have been shown and asked to sign a Form
1040 for 2004 prepared as married filing jointly and
may have signed it. I would have to see a copy of that
return. I have no copy of that return in my records,
so I have not been able to see whether Erdal signed it
for me or I signed it without paying attention to what
was on the return. * * *
Discussion
During the hearing on the pending motions, petitioner’s
counsel candidly stated:
So, what I’m trying to ask the Court here to do is
try to help my client out here by finding a way to rule
because this is an equitable thing that Congress really
wanted to help taxpayers get some ruling from the Court
under 6015(e). Try to throw this case out on the basis
it gives my client some help that there wasn’t a joint
return. So that’s why the Court has to say, well,
what’s the whole purpose of this statute, what was
Congress intending here. It wanted equity, it wanted
to help the spouse even after they couldn’t make an
argument of a deficiency case, that this should be part
of what the Court can do.
In the process, counsel asks us to make a categorical finding on
an ambiguous factual record and to disregard or overrule prior
opinions of the Court. While we commend his desire to serve his
client, we decline the invitation.
Shortly before the hearing on the pending motions,
petitioner suggested an alternative to the theory asserted in the
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cross-motion to dismiss for lack of jurisdiction. Petitioner
“withdrew” a prior concession that she did not timely file the
petition and argued:
(1) that the 90-day period of section 6015(e) in which
to file a petition is not jurisdictional, but rather is
a statute of limitations subject to equitable tolling,
and (2) that her filing of the petition herein was
timely because, due to her belated receipt of the
notice of determination on or after September 30, 2008,
equitable tolling applies, and the 90-day period should
not begin to run before that date of receipt. Since
petitioner mailed her petition to this Court on October
29, 2008 (29 or fewer days after her receipt of the
notice), and the Court filed it on November 3, 2008,
the petition was timely under equitable tolling.
Petitioner acknowledges that her argument is contrary to the
Court’s holding in Pollock v. Commissioner, 132 T.C. __ (2009),
but she argues that Pollock was “incorrectly decided”. In that
regard she relies on other recent decisions favoring relief to
taxpayers under entirely different circumstances. Petitioner’s
generalized reliance on “equity” and “policy considerations”
cannot overcome a jurisdictional defect. See, e.g., Healy v.
Commissioner, 351 F.2d 602, 603 (9th Cir. 1965); Maier v.
Commissioner, 119 T.C. 267, 276 (2002), affd. 360 F.3d 361 (2d
Cir. 2004); Axe v. Commissioner, 58 T.C. 256, 259 (1972). There
is no dispute that the notice was sent to petitioner’s last known
address. There is no special or compelling inequity here.
Petitioner urges us to deny respondent’s motion to dismiss
and to grant petitioner’s motion to dismiss by analogy to other
cases in which the Court has had before it cross-motions to
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dismiss for lack of jurisdiction with respect to a petition filed
more than 90 days after a notice of deficiency was sent. In some
such cases, the Court will grant a taxpayer’s motion on the
ground that the notice of deficiency was not sent to the
taxpayer’s last known address and was therefore invalid. In
those cases, however, we have followed the truism that our
jurisdiction depends on a valid notice and a timely petition.
See Pietanza v. Commissioner, 92 T.C. 729, 735-736 (1989), affd.
without published opinion 935 F.2d 1282 (3d Cir. 1991); Keeton v.
Commissioner, 74 T.C. 377, 379 (1980).
In this case, there is no suggestion that the final
determination sent in response to the Form 8857 request by
petitioner is invalid. In situations where a timely petition was
filed in response to a valid notice but the taxpayer denies that
he or she was party to a joint return, the Court has decided the
case on the merits and entered a decision rather than dismissing
the case for lack of jurisdiction. See Alt v. Commissioner, 119
T.C. 306, 311-312 (2002), affd. 101 Fed. Appx. 34 (6th Cir.
2004); Raymond v. Commissioner, 119 T.C. 191, 197 (2002).
Petitioner suggests that the Court “arguably rendered a
different jurisdictional holding” in Bernal v. Commissioner, 120
T.C. 102 (2003), where the Court dismissed for lack of
jurisdiction a spouse’s claim for relief under section 66. The
rationale of that case is that Congress had not by statute
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provided this Court with jurisdiction under section 66, in
contrast to section 6015, where the grant of jurisdiction is
explicit. See Bernal v. Commissioner, supra at 107-108.
Petitioner argues that a footnote in Bernal v. Commissioner,
supra at 106-107 n.6, citing Raymond v. Commissioner, supra at
195-196, for the proposition that provisions of section 6015 for
relief from joint and several liability are inapplicable and
dismissal in Bernal for lack of jurisdiction, means that “the
Court was, sub silencio, denying jurisdiction under section
6015(e) for lack of joint returns”. This argument is meritless.
The Court does not overrule or modify precedents by inference in
footnotes.
The predicates for our jurisdiction in a stand-alone
proceeding under section 6015 are a claim by a taxpayer, a final
determination, and a timely petition. See sec. 6015(e)(1).
Among the conditions for relief under section 6015 is that a
joint return was filed, but that condition is not set forth as a
prerequisite to our review of denial of a claim for relief. If
the taxpayer’s claim is rejected for failure to satisfy the
conditions set forth under section 6015(b), (c), or (f), our
review is on the merits of the claim. Petitioner’s position
would require a review of the merits in every section 6015 case
where the filing of a joint return is disputed, even where, as
here, the parties agree that ultimately there is no jurisdiction.
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If jurisdiction is lacking, as it is here because the petition
was not timely, we do not and should not proceed to address the
merits.
We have considered petitioner’s other arguments. They are
irrelevant or unpersuasive. For the reasons set forth above,
petitioner’s motion to dismiss will be denied, respondent’s
motion will be granted, and the case will be dismissed for lack
of jurisdiction on the ground that the petition was not filed
timely.
An appropriate order of
dismissal for lack of
jurisdiction will be entered.