dissenting: I respectfully dissent from the granting of respondent’s motion to dismiss for lack of jurisdiction. The Court’s action perpetuates needless inefficiency in judicial administration of the new collection provisions and plays into the hands of tax protesters. Petitioners have gummed up the works, created delay in the collection of relatively small amounts obviously due, and multiplied the proceedings with respect to frivolous return penalties whose assessment properly bypassed the deficiency procedures of the Tax Court.
The Court should have denied the motion and taken jurisdiction, overruled Van Es v. Commissioner, 115 T.C. 324 (2000), and put an end to the matter by holding that the hearing requirement was satisfied and that respondent’s determination to collect the assessments should be upheld. By electing to petition the Tax Court, rather than the appropriate District Court, petitioners should have been held to have waived their right to appeal the Appeals officer’s determination that they were liable for the frivolous return penalties.1
Section 6330 is susceptible to the interpretation — indeed, in my view, it’s the preferred reading — that the Tax Court has jurisdiction under section 6330(d)(1)(A) in all collection cases, with a District Court having concurrent jurisdiction under section 6330(d)(1)(B) in cases in which the Tax Court lacks jurisdiction of the underlying tax liability. The delays encountered in judicial administration of the new collection provisions, delays we take notice of in the companion case of Lunsford v. Commissioner, 117 T.C. 159, 164 (2001) (jurisdictional opinion), satisfy the exceptional circumstances conditions set forth in Planned Parenthood v. Casey, 505 U.S. 833, 854-855 (1992), for reconsideration and repudiation of recent precedent.
Against this background of judicial abstention, what next? At the risk of presumptuousness in drawing additional attention to ambiguities in the statute, I hope that this case will lead to congressional reconsideration and enactment of a more explicit grant of jurisdiction to this Court to provide one-stop shopping in all cases under sections 6320 and 6330. In the aftermath of September 11, 2001, the reminder that “taxes are the life-blood of government, and their prompt and certain availability an imperious need”,2 should trump self-imposed Alphonse and Gaston jurisdictional niceties.
Finally, let me lay to rest any concerns that this dissenting opinion publicizes ambiguities other tax protesters will exploit to create unjustified delays in collection of assessments. From now on until the ambiguities are cured, any taxpayer who files a petition with the Tax Court in a collection case in which the Tax Court does not have jurisdiction, of the underlying tax liability may be found to have done so “primarily for delay” and hit with a penalty of up to $25,000 under section 6673(a)(1)(A). Anyone admitted to practice in this Court who files such a petition may be found to have “multiplied the proceedings * * * unreasonably and vexatiously” under section 6673(a)(2) and required to “pay personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct”.3
It’s beyond cavil that courts of limited jurisdiction, including the Tax Court, have inherent power to protect their processes from abuse by awarding sanctions and costs even though they lack jurisdiction over the underlying dispute. Willy v. Coastal Corp., 503 U.S. 131 (1992) (sanctions under Fed. R. Civ. P. 11, allowed even though case dismissed for want of subject matter jurisdiction); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990) (same where complaint voluntarily dismissed before answer filed); Sponza v. Commissioner, 844 F.2d 689 (9th Cir. 1988) (approving award of section 7430 litigation costs after determination that Tax Court lacked jurisdiction); Weiss v. Commissioner, 88 T.C. 1036 (1987) (same), affd. sub silentio 850 F.2d 111 (2d Cir. 1988); see also Dang v. Commissioner, 259 F.3d 204 (4th Cir. 2001).
Halpern, J., agrees with this dissenting opinion.Applying the doctrine of waiver would have been especially appropriate in the case at hand, where the arguments made in the attachments to petitioners’ amended returns are patently frivolous and have been repeatedly rejected in our published opinions. Petitioners argued that no section of the Internal Revenue Code makes them hable for income taxes on their wages. See United States v. Connor, 898 F.2d 942, 943-944 (3d Cir. 1990) (“Every court which has ever considered the issue has unequivocally rejected the argument that wages are not income”); see also Reading v. Commissioner, 70 T.C. 730 (1978) (entire amount received for services constitutes income), affd. 614 F.2d 159 (8th Cir. 1980); United States v. Richards, 723 F.2d 646, 648 (8th Cir. 1983) (argument that wages and salaries are not income is “totally lacking in merit”). Petitioners argued they owe no taxes because “income” is not separately defined in the Internal Revenue Code, or because the definition of “gross income” in sec. 61 uses the word “income.” Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 429-430 (1955), made clear that the language of sec. 61 is entirely appropriate for “Congress to exert in this field ‘the full measure of its taxing power.’” In Liddane v. Commissioner, T.C. Memo. 1998-259, affd. without published opinion 208 F.3d 206 (3d Cir. 2000), and Fox v. Commissioner, T.C. Memo. 1993-277, affd. without published opinion 69 F.3d 543 (9th Cir. 1995), we found these arguments to be frivolous and imposed a penalty on the taxpayer under sec. 6673(a)(1) for making them. Petitioners’ syllogism that the Supreme Court defines income as corporate profit, and that since wages are not corporate profit he did not have any income, was rejected as frivolous in Ghalardi Income Tax Educ. Found, v. Commissioner, T.C. Memo. 1998-460. Petitioners’ final argument that a penalty under sec. 6702(b) cannot be imposed independently of another penalty because the statute says that “the penalty imposed by subsection (a) shall be in addition to any other penalty provided by law” is textually absurd. These frivolous arguments, combined with the petition to this Court for a redetermination of assessed frivolous return penalties after written notice from the Commissioner that the appeal is properly filed in an appropriate District Court, evidence intent to cause unnecessary delay and expense. In these circumstances, the election to file a petition in this Court should have been held a waiver of the right of access to remedies the majority holds we are unable to provide.
Bull v. United States, 295 U.S. 247, 259 (1935); see also Tyler v. United States, 281 U.S. 497, 503 (1930).
Taxpayers in frivolous return penalty and employment tax penalty cases who wish to dispute the Commissioner’s collection determination are already being put on notice that they should file a complaint with the appropriate District Court. Following our opinion in Van Es v. Commissioner, 115 T.C. 324 (2000), the Commissioner apparently changed the form of notice of determination in frivolous return penalty collection cases to tell the taxpayer to file a complaint in the appropriate District Court. The notice of determination in the case at hand so stated, but petitioners disregarded the notice and filed a petition with the Tax Court. Similarly, the taxpayer in Moore v. Commissioner, 114 T.C. 171 (2000), an employment tax penalty collection case, disregarded the instruction in the notice of determination to file a complaint in the appropriate District Court.