concurring: While I agree with the majority’s conclusion that we lack jurisdiction under section 6330(d) to review the Commissioner’s determination in this case, see Van Es v. Commissioner, 115 T.C. 324, 328-329 (2000), I write separately because I disagree with the majority’s discussion of Meyer v. Commissioner, 115 T.C. 417 (2000),
In Lunsford v. Commissioner, 117 T.C. 159 (2001) (Lunsford I), which also was released today, the majority undermined the clear language of section 6330 and the will of Congress by overruling the Court’s holding in Meyer that a taxpayer is entitled to a section 6330 hearing prior to there being a determination upon which this Court’s jurisdiction is predicated. In doing so, the majority in Lunsford I concluded that the hearing statutorily mandated by section 6330(b)(1) is not required prior to our obtaining jurisdiction. Contrary to the majority’s opinion in the instant case, majority op. p. 210, after Lunsford I, there is nothing left in Meyer for the Court to follow. Therefore, the majority’s discussion of Meyer and stare decisis is unnecessary.
Additionally, I disagree with Judge Beghe’s dissent that we should no longer follow our jurisprudence in Moore v. Commissioner, 114 T.C. 171 (2000), and Van Es v. Commissioner, supra.
I. Interpreting Section 6330(d)
First, Judge Beghe suggests that section 6330(d) is susceptible to the interpretation — indeed, one that he claims is preferable — that the Tax Court has jurisdiction pursuant to section 6330(d)(1)(A) in all collection cases. I disagree.
Section 6330(d) provides:
(1) Judicial review of determination. — The person may, within 30 days of a determination under this section, appeal such determination
(A) to the Tax Court (and the Tax Court shall have jurisdiction with respect to such matter); or
(B) if the Tax Court does not have jurisdiction of the underlying tax liability, to a district court of the United States.
If a court determines that the appeal was to an incorrect court, a person shall have 30 days after the court determination to file such appeal with the correct court.
Judge Beghe fails to explain how his interpretation is an acceptable, let alone preferred, reading of the statute.
A. Section 6330(d)(1) Must Be Read as a Whole
A cardinal rule of statutory construction is that a statute is to be read as a whole because the meaning of language depends on its context. See King v. St. Vincent’s Hosp., 502 U.S. 215, 221 (1991). The flush language contained at the end of the section states: “If a court determines that the appeal was to an incorrect court, a person shall have 30 days after the court determination to file such appeal with the correct court.” Sec. 6330(d)(1) (emphasis added). Thus, the District Court can determine that appeal should have been to this Court, and we can determine that appeal should have been to the District Court.
B. Congress Knows How To Grant Unlimited Jurisdiction to One Court and Limited Jurisdiction to Another
With regard to jeopardy assessments, section 7429(b)(2) provides:
(A) IN general. —Except as provided in subparagraph (B), the district courts of the United States shall have exclusive jurisdiction over any civil action for a determination under this subsection.
(B) Tax Court. — If a petition for redetermination of a deficiency under section 6213(a) has been timely filed with the Tax Court before the making of an assessment or levy that is subject to the review procedures of this section, and 1 or more of the taxes and taxable periods before the Tax Court because of such petition is also included in the written statement that is provided to the taxpayer under subsection (a), then the Tax Court also shall have jurisdiction over any civil action for a determination under this subsection with respect to all the taxes and taxable periods included in such written statement.
[Emphasis added.]
As the above shows, Congress knows how to give unlimited jurisdiction to one court and limited jurisdiction to another.
Section 7429(e)(2) further provides:
If a civil action is filed under subsection (b) with the Tax Court and such court finds that there is want of jurisdiction because of the jurisdiction provisions of subsection (b)(2), then the Tax Court shall, if such court determines it is in the interest of justice, transfer the civil action to the district court in which the action could have been brought at the time such action was filed. * * *
In stating which court is an incorrect court, in section 7429(e)(2) Congress used the proper noun “Tax Court” whereas in the flush language of section 6330(d)(1) Congress instead chose to precede the noun “court” with the indefinite article “a”. The use of the indefinite article, which does not fix the identity of the noun modified, supports the conclusion that the flush language of section 6330(d)(1) applies to both the Tax Court and the District Courts. See Webster’s II New Riverside University Dictionary 621 (1994).
C. Section 6330(d)(1) Must Be Read in the Context of the Statute
The section 6330(d)(1)(A) parenthetical language must be read in the context of the statute. See Norfolk S. Corp. v. Commissioner, 104 T.C. 13, 41 (1995). Section 6015(e)(1) contains the same parenthetical language as section 6330(d)(1)(A); however, this same parenthetical language does not provide the Court with unlimited jurisdiction over section 6015 cases. Our jurisdiction to review section 6015 cases is not unlimited — in some cases the District Court or U.S. Court of Federal Claims has jurisdiction and the Tax Court does not. Sec. 6015(e)(3)(C). Similarly, the language of section 6330(d)(1)(B) and the flush language limit and explain the parenthetical language contained in section 6330(d)(1)(A).
D. District Courts Agree With Moore and Van Es
Several District Courts have explicitly agreed with our holdings in Moore and Van Es that our jurisdiction in lien and levy cases is not unlimited. The U.S. District Court for the Southern District of Texas held: “Courts have interpreted these provisions [section 6330(d)(1)] to mean that district courts have jurisdiction under section 6330 only if the Tax Court lacks jurisdiction.” Lewis v. IRS, 86 AFTR 2d 2000-6839, 2000-2 USTC par. 50,837 (S.D. Tex. 2000) (emphasis added). The U.S. District Court for the Northern District of Texas held: “a district court has jurisdiction to hear this type of suit [a claim under section 6330] only if the Tax Court lacks jurisdiction. * * * District Courts have jurisdiction under section 6330 only if the Tax Court lacks jurisdiction.” McCune v. United States, 85 AFTR 2d 2000-1240, 2000-1 USTC par. 50,279 (N.D. Tex. 2000) (emphasis added). The U.S. District Court for the Eastern District of Pennsylvania held that section 6330(d)(1) “provides for review to the Tax Court, unless the Tax Court does not have jurisdiction, in which case the appeal goes to a district court”. Hart v. IRS, 87 AFTR 2d 2001-1531, 2001-1 USTC par. 50,328 (E.D. Pa. 2001) (emphasis added).
II. “Opening the Back Door”
Historically, the Tax Court has been a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. See sec. 7442; Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The grant of jurisdiction to review deficiencies determined by the Commissioner does not provide us with jurisdiction to review taxes imposed under subtitle C, subtitle D (with the exception of excise taxes imposed by chapters 41, 42, 43, and 44), subtitle E, and various additions to tax and penalties. See secs. 6211(a), 6214; Medeiros v. Commissioner, 77 T.C. 1255, 1259-1260 (1981) (section 6672 addition to tax); Judd v. Commissioner, 74 T.C. 651 (1980) (section 6652(c) addition to tax); Chatterji v. Commissioner, 54 T.C. 1402 (1970) (overpayment of FICA taxes); see also Fischer v. Commissioner, T.C. Memo. 1994-586 n.3 (section 6682 penalty); Hintz v. Commissioner, T.C. Memo. 1981-425 (overpayment of Railroad Retirement taxes), affd. 712 F.2d 281 (7th Cir. 1983).
Concluding that we had jurisdiction in this case would have allowed the Court to reach the merits of whether petitioners are liable for the frivolous return penalty pursuant to section 6702. Petitioners, however, could not have directly petitioned the Court to review whether they were liable for this penalty. Sec. 6703(b) and (c)(2). Judge Beghe’s interpretation would provide a back door through which taxpayers could slip through by waiting until collection to litigate liability for taxes, additions to tax, and penalties that they are prevented from petitioning this Court to review via our deficiency jurisdiction.
III. Stare Decisis
Principles of stare decisis weigh against overruling Moore and Van Es. With regard to stare decisis, the Supreme Court has stated as follows:
the important doctrine of stare decisis [is] the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. * * * While stare decisis is not an inexorable command, the careful observer will discern that any detours from the straight path of stare decisis in our past have occurred for articulable reasons, and only when the Court has felt obliged “to bring its opinions into agreement with experience and with facts newly ascertained.” * * * every successful proponent of overruling precedent has borne the heavy burden of persuading the Court that changes in society or in the law dictate that the values served by stare decisis yield in favor of a greater objective. * * * [Vasquez v. Hillery, 474 U.S. 254, 265-266 (1986); citation omitted.]
Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Hesselink v. Commissioner, 97 T.C. 94, 99 (1991).
A. Test for Overruling Prior Opinions
The U.S. Supreme Court has set forth the following four-part test for use in determining whether to overrule a prior decision: (1) Whether the rule has proven to be intolerable simply in defying practical workability, (2) whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, (3) whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned cloctrine, and (4) whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification. Planned Parenthood v. Casey, 505 U.S. 833, 854-855 (1992).
The rules set forth in Moore and Van Es and followed by several opinions1 and orders have not proven to be unworkable. Furthermore, in the months that have passed since the release of these opinions and orders, principles of law have not changed so much as to leave those cases as no more than a remnant of abandoned doctrine. Additionally, facts have not so changed as to have robbed Moore and Van Es of significant application or justification. Thus, the factors set forth by the Supreme Court in Planned Parenthood do not support Judge Beghe’s suggestion that there are exceptional circumstances such that Moore and Van Es should be overruled.
B. Stare Decisis and Statutory Construction
Stare decisis assumes increased importance when the antecedent cases involved the construction of a statute. Brewster v. Commissioner, 607 F.2d 1369, 1373-1374 (D.C. Cir. 1979), affg. 67 T.C. 352 (1976). In such cases, Congress can cure any error made by the Court, and until it does the bar and the public are justified in expecting the Court, except in the most egregious cases, not to depart from the previous interpretation. Hesselink v. Commissioner, supra at 100; Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932) (Brandéis, J., dissenting).
On December 21, 2000, in the Community Renewal Tax Relief Act of 2000 (crtra), Pub. L. 106-554, sec. 314(f), 114 Stat. 2763A-643, Congress legislatively overruled Henry Randolph Consulting v. Commissioner, 112 T.C. 1 (1999). In CRTRA, Congress also amended section 6330(d)(1) and chose to let the holdings in Moore and Van Es stand.2 CRTRA sec. 313(d). The fact that Congress amended section 6330(d)(1) and chose not to overrule Moore and Van Es weighs heavily against overruling them. See, e.g., Hesselink v. Commissioner, supra at 100 (Congress can cure any error made by the Court).
IV. Petitioners’ “Delay Tactics”
I am not convinced that petitioners are delay seekers whose sole purpose in bringing this case was to gum up the works by unreasonably and vexatiously multiplying the proceedings.
I agree that the notice of determination instructed petitioners to bring their case in the District Court. Petitioners, however, decided to petition the Tax Court based on our decision in Meyer v. Commissioner, 115 T.C. 417 (2000). In both their petition and amended petition, petitioners state that in a similar case {Meyer) this Court assumed jurisdiction. Their argument is not that we have jurisdiction to review a determination regarding a section 6702 penalty but that they were not provided a hearing. Further, petitioners contend that in a similar case involving a section 6702 penalty {Meyer) the Court held that we had jurisdiction to review whether the taxpayer was provided a hearing.
The following colloquies took place at the hearing on the motion:
THE COURT: That’s right. I’ve seen the file. Do you want to say anything this morning on behalf of the motion or in opposition to the motion?
PETITIONER: Judge, I’ve sent in an objection to the motion that technically the Court does not have jurisdiction regarding frivolous penalties, but it does have jurisdiction based on the Meyer case, which I cited in my objection, that this is a matter of not receiving a due-process hearing * * * We did ask for the hearing within the 30 days and did not get the hearing when a determination was made.
‡ % tji % * &
THE COURT: Mr. Johnson is not speaking this morning to the merit of the position he’s taking. He’s saying that, regardless of the merit of the position, he’s entitled to a hearing. Is that correct Mr. Johnson?
PETITIONER: That’s correct sir. Yes, sir.
THE COURT: Okay. Now, what else — Mr. Johnson, do you want to say anything else in opposition to the Government’s motion?
PETITIONER: Judge, my position is strictly that this whole case has to do with whether or not the Tax Court has jurisdiction to rule on a violation of Section 6330 of the Internal Revenue Code, and it is not addressing the frivolous penalty as such, even though that is the underlying part of this case. This motion to dismiss is based upon frivolous penalty; my objection has to do with Section 6330 of the Code, that I’ve not had a due-process hearing and that the Government has admitted that I’ve not had a due-process hearing.
^ ^ ^
THE COURT: Mr. Crump, do you think that the Tax Court has jurisdiction to decide the Johnsons’ claim relating to the hearing?
RESPONDENT: Based on my reading of Meyer, I would — I think so.
THE COURT: All right. Now, Mr. Johnson, * * * if the hearing requirement was not met, what do you think the Court should do here?
PETITIONER: As requested in my petition, I believe that the determination should be vacated and that it should go back to due-process hearing. * * * If I could have a due-process hearing * * * [and a determination is made against me] then I will appeal to district court, which then it would be the proper place, but I think that I do have to have that hearing in order to fulfill the requirements here in Code Section 6330.
THE COURT: All right. * * * If the hearing requirement was met — if I decide the hearing requirement was met, what action do you think the Court should take here?
PETITIONER: Well, then I would suppose that the only action you could take would be to honor the request to dismiss for lack of jurisdiction * * * and then I would have to appeal to district court.
On this record, I am not convinced petitioners petitioned this Court in an attempt to delay the proceedings. If a taxpayer instituted the proceedings for delay, the proper action is to sanction the taxpayer pursuant to section 6673(a) as we warned in Pierson v. Commissioner, 115 T.C. 576, 581 (2000). See also Davis v. Commissioner, T.C. Memo. 2001-87 (imposing a $4,000 penalty pursuant to section 6673(a) for frivolous and groundless arguments).
Laro, J., agrees with this concurring opinion.See Landry v. Commissioner, 116 T.C. 60, 62 (2001); Meyer v. Commissioner, 115 T.C. 417, 421 (2000); Katz v. Commissioner, 115 T.C. 329, 338 (2000); Offiler v. Commissioner, 114 T.C. 492, 498 n.6 (2000); Goza v. Commissioner, 114 T.C. 176, 181 (2000); Merriweather v. Commissioner, T.C. Memo. 2001-88; Boone Trust v. Commissioner, T.C. Memo. 2000-350; Loadholt Trust v. Commissioner, T.C. Memo. 2000-349; MacElvain v. Commissioner, T.C. Memo. 2000-320; Howard v. Commissioner, T.C. Memo. 2000-319; Anderson v. Commissioner, T.C. Memo. 2000-311.
The only change Congress made to sec. 6330(d)(1) was to alter the language in the par. (1)(A) parenthetical from “and the Tax Court shall have jurisdiction to hear such matter” to “and the Tax Court shall have jurisdiction with respect to such matter”. CRTRA sec. 313(d), 114 Stat. 2763A-643 (emphasis added).