Appellate Case: 21-9000 Document: 010110618737 Date Filed: 12/14/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 14, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
TOI GILLIES,
Petitioner - Appellant,
v. No. 21-9000
(CIR No. 12010-20)
COMMISSIONER OF INTERNAL (United States Tax Court)
REVENUE,
Respondent - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Toi Gillies filed a petition in the Tax Court alleging that she was a victim of
tax fraud and identity theft by her ex-husband and tax return preparer. The Tax Court
dismissed the petition for lack of jurisdiction. Appearing pro se, she appeals that
order. We have jurisdiction under 26 U.S.C. § 7482(a)(1), and we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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I. Background
Ms. Gillies’s petition appeared to reference taxable years 2016 through 2019
as the periods in dispute, but she did not provide the date of any notices of deficiency
or liability determination she was disputing or identify the taxable years for which
such notices were issued. She also did not attach any notices of deficiency or
determination to her petition. Based on those and other deficiencies in the petition,
the Commissioner filed a motion for a more definite statement pursuant to Tax Court
Rule 51(a).
The Tax Court granted the motion and, as pertinent here, ordered Ms. Gillies
to (1) “file . . . a proper amended petition” that includes the dates of the notices of
deficiency or determination being disputed and the taxable years for which they were
issued, and (2) attach a copy of each disputed notice she relied on as the basis for the
court’s jurisdiction over the petition. R. at 23.
About two weeks later, Ms. Gillies filed a response to the Commissioner’s
motion, arguing that her petition was not deficient and asserting that, because the
Commissioner had or would “have by the time of trial and initial disclosures[] all the
information necessary to understand the nature of [her] allegations,” a more definite
statement was unnecessary. R. at 26-27. She also maintained that the “demand [for]
. . . supporting documents” inappropriately “require[d] expansion of the pleadings . . .
when discovery [was] the proper method for obtaining information.” R. at 28
(internal quotation marks omitted). She attached an amended petition to her
response, but it, like her original petition, did not provide copies of any notices of
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deficiency or determination issued to her. The amended petition acknowledged that
she had not been issued a notice of deficiency or determination for the 2017 and 2018
tax years, did not address whether she had been issued a notice for the 2019 tax year,
and indicated that she had been issued a notice for the 2016 tax year but did not
attach a copy of the notice.
On the court-ordered deadline for filing a proper amended petition, the
Commissioner filed a status report acknowledging and attaching Ms. Gillies’s
response and amended petition and advising the court that she had filed nothing
further in response to the court’s order.
The court subsequently dismissed the petition for lack of jurisdiction,
explaining that Ms. Gillies had not filed a “proper amended petition suggesting any
basis for [the court’s] jurisdiction[.]” R. at 53. This appeal followed.
II. Discussion
A. Standard of Review
Because Ms. Gillies is pro se, we have construed her filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
Whether the Tax Court correctly dismissed a petition for lack of jurisdiction is
a mixed question of law and fact. See Anderson v. Comm’r, 62 F.3d 1266, 1270
(10th Cir. 1995). We review the Tax Court’s factual findings for clear error and its
legal conclusions de novo. Id.
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B. Tax Court Jurisdiction
“The Tax Court is a court of limited jurisdiction.” Alford v. Comm’r, 800 F.2d
987, 988 (10th Cir. 1986). The party invoking the Tax Court’s jurisdiction has the
burden of establishing that the jurisdictional requirements have been met. Page v.
Comm’r, 297 F.2d 733, 734 (8th Cir. 1962) (per curiam); Amanda Iris Gluck
Irrevocable Tr. v. Comm’r, 154 T.C. 259, 264-65 (2020).
As pertinent here, a taxpayer may invoke the Tax Court’s jurisdiction in one of
two ways—by filing a petition disputing a notice of deficiency, see 26 U.S.C.
§ 6212(a), or by filing a petition challenging a notice of determination following a
collection due process hearing, see id. § 6330(d)(1).
In a deficiency proceeding, “the determination of a deficiency and the issuance
of a notice of deficiency are absolute preconditions to Tax Court jurisdiction.”
Alford, 800 F.2d at 988; see also 26 U.S.C. § 6214(a) (providing that the Tax Court
has jurisdiction to redetermine the correct amount of any deficiency); Tax Ct.
R. 13(a) (providing that subject to exceptions not applicable here, “the jurisdiction of
the Court depends . . . upon the issuance by the Commissioner of a notice of
deficiency”). The notice of deficiency is thus the taxpayer’s “ticket” to the Tax
Court. Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir. 1992) (internal quotation
marks omitted). In the same way, the notice of determination is a “ticket” to the Tax
Court for reviewing a collection due process determination. See Boyd v. Comm’r,
124 T.C. 296, 303 (2005), aff’d, 451 F.3d 8, 10 n.1 (1st Cir. 2006) (recognizing that
the Tax Court’s “jurisdiction under § 6330(d) depends upon the issuance of a valid
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notice of determination” (internal quotation marks omitted)). Thus, to meet her
burden of establishing the Tax Court’s jurisdiction, the taxpayer in both deficiency
and collection due process proceedings must plead the date of the notice of
deficiency or determination, see Tax Ct. R. 34(b)(2), 331(b)(2), and submit a copy of
the notice with the petition, id. R. 34(b)(8), 331(b)(8).
C. Application
The Tax Court dismissed Ms. Gillies’s petition for lack of jurisdiction because
she did not establish that the Commissioner had issued her a notice of deficiency or
determination. Accordingly, it did not address the merits of her identity theft
allegations. On appeal, Ms. Gillies does not address the Tax Court’s jurisdictional
determination, focusing instead on the merits of her underlying claims and alleging
that the Tax Court erred by failing to address them.
The Tax Court’s order granting the Commissioner’s motion for a more definite
statement directed Ms. Gillies to submit a “proper amended petition” that, among
other things, provided copies of the notices of deficiency or determination she was
relying on as the basis for the court’s jurisdiction, but she failed to do so. R. at 23.
We thus agree with the Tax Court’s determination that she did not establish the basis
for the court’s jurisdiction, and we find no error in its dismissal of her petition for
lack of jurisdiction. See Alford, 800 F.2d at 988-89 (affirming Tax Court dismissal
of petition in § 6212 proceeding for lack of jurisdiction where no notice of deficiency
was issued); see also Boyd v. Comm’r, 451 F.3d 8, 10-11 (1st Cir. 2006) (affirming
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Tax Court dismissal of petition in § 6330 proceeding for lack of jurisdiction where no
notice of determination was filed).
In so concluding, we reject Ms. Gillies’s contention that the Tax Court did not
consider her amended petition. In the dismissal order, the court noted that she had
“filed a response to the motion for more definite statement,” and it concluded she had
not filed a “proper amended petition as directed by the Court.” R. at 53. Contrary to
Ms. Gillies’s contention, the court’s finding that she did not file a “proper amended
petition” does not suggest it did not receive or consider her amended petition.
Rather, the court acknowledged her filing and found that the amended petition was
not “proper”—in other words, it did not comply with the applicable rules or the
court’s order and did not establish a basis for the court’s jurisdiction. Id.
We acknowledge that Ms. Gillies attached two letters she received from the
Internal Revenue Service to her opening brief, which she claims served as a notice of
deficiency for the 2016 tax year. See Aplt. Opening Br. at 19, 27-31. But she did not
attach the letters to her original or amended petition, so they were not before the Tax
Court when it issued the dismissal order. Accordingly, we may not consider them as
a basis for overturning that order. See Verlo v. Martinez, 820 F.3d 1113, 1125
(10th Cir. 2016) (explaining that we will not find error based on evidence that was
not part of the record below); United States v. Kennedy, 225 F.3d 1187, 1191
(10th Cir. 2000) (explaining that we “will not consider material outside the record
before the [lower] court” and that the parties may not “build a new record” on appeal
(internal quotation marks omitted)); Fed. R. App. P. 10(a)(1) (providing, as pertinent
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here, that the record on appeal consists of “the original papers and exhibits filed in
the” court from which the appeal is taken).
In any event, the letters merely advised Ms. Gillies of changes the IRS had
made to her 2016 tax return and of the resultant proposed tax increase—they did not
suggest the IRS had made a determination of her tax deficiency. Indeed, the second
letter expressly indicated that if she did not respond, the IRS “[would] issue a notice
of deficiency” that “[would] be legal notice of the proposed tax increase,” and it
advised her that if she “decide[d] to appeal the proposed tax increase after [the IRS]
issue[d] the deficiency notice, [she would] have to file a petition with the United
States Tax Court.” Aplt. Opening Br. at 31 (emphasis added). Accordingly, the
letters were not a notice of deficiency that could have invoked the Tax Court’s
jurisdiction. See Abrams v. Comm’r, 814 F.2d 1356, 1357 (9th Cir. 1987) (per
curiam) (joining six other circuits in holding that a pre-filing notification letter from
the IRS was not a notice of deficiency and was therefore not a basis for Tax Court
jurisdiction).
Having concluded that the Tax Court properly dismissed Ms. Gillies’s petition
for lack of jurisdiction, we do not address her arguments regarding the merits of her
identity theft and related innocent spouse claims.
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III. Conclusion
We affirm the Tax Court’s order dismissing Ms. Gillies’s petition for lack of
jurisdiction.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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