Opinion
36653-21S
08-01-2023
JOHN H. FULFORD, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Adam B. Landy, Special Trial Judge.
Pending before the Court is the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed November 3, 2022. The Commissioner states that no deficiency existed at the time the notice of deficiency was issued to Mr. Fulford. The Commissioner's motion does not state with specificity which tax year the motion references. For purposes of resolving this motion, the Court construes the tax year at issue in the Commissioner's motion as 2019.
Mr. Fulford mailed a Petition, which this Court filed on December 9, 2021, disputing a notice of deficiency (notice), dated September 17, 2021. Mr. Fulford attached a partial copy of that notice stating that the IRS had determined a deficiency and proposed a penalty, pursuant to I.R.C. § 6662, for tax year 2020. On T.C. Form 2, Petition, Mr. Fulford left the line for tax year at issue blank, and on the notice, he struck through 2020 and wrote 2019. The Commissioner filed an Answer on March 16, 2022, alleging that the tax year at issue is 2020.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times.
The Court notes that the Commissioner has not moved for leave and lodged an Amended Answer or Amendment to Answer to revise or allege another tax year other than 2020 is at issue.
The parties filed a Settlement Stipulation and Proposed Stipulated Decision on September 28, 2022, seeking to resolve this case, for tax year 2019, on the basis that Mr. Fulford is not liable for a deficiency or penalty, and he is entitled to an overpayment of $6,590. The Court held a telephone conference with the parties on October 4, 2022, whereby Mr. Fulford confirmed that the IRS sent him the notice for 2020, and he struck through 2020 and listed 2019 as the year at issue. Mr. Fulford also confirmed that he sent full payment of $6,590 to the IRS on or around March 10, 2021, satisfying the deficiency and penalty plus enclosing documents substantiating his entitlement to credits claimed on his 2019 Form 1040 tax return.
On November 3, 2022, the Commissioner filed a Status Report in response to the telephone conference stating that the proper tax year at issue is 2019 and attached a copy of an alleged corrected notice of deficiency, dated January 7, 2022. The Court's records reflect that Mr. Fulford did not file a Petition in response to this 2019 corrected notice. This purportedly corrected notice for 2019 proposed a deficiency of $5,373 and a penalty of $1,074.60. Also, in this report, the Commissioner confirmed receipt of Mr. Fulford's March 17, 2021, full payment for 2019. The Commissioner concluded that Mr. Fulford paid the alleged deficiency and penalty in full prior to the issuance of the January 7, 2022, corrected notice, and the Court does not have jurisdiction to redetermine a deficiency and penalty for tax year 2019. Concurrently filed, the Commissioner's Motion to Dismiss for Lack of Jurisdiction argues the same.
By Order served January 4, 2023, the Court ordered the Commissioner to file a response to the Order stating whether the partial notice attached to the Petition is a valid notice of deficiency for tax year 2020 in accordance with the judicial principles stated in the cases cited by the Court. In response, the Commissioner filed a Status Report on January 31, 2023, stating, without any legal analysis or argument, that the partial notice attached to the Petition is invalid since the notice incorrectly states the IRS determined a deficiency and proposed a penalty for tax year 2020. The Commissioner's report further states that "[a]lthough the cover page lists the wrong tax year [2020], the attachments and workpapers [further attached to the notice] reflect the correct year [2019]." Although requested to do so, Mr. Fulford failed to file a response to the Court's Order or the Commissioner's Status Report.
For the legal principle that a notice of deficiency need not take any particular form to be valid, and that the notice of deficiency must advise the taxpayer that the IRS has determined a deficiency with respect to the taxpayer and must specify the year and amount, the Court, in its Order to the parties, cited the following cases: Bokum v. Commissioner, 992 F.2d 1136 (11th Cir. 1993), aff'g, T.C. Memo. 1990-21, 58 T.C.M. (CCH) 1183; U.S. Auto Sales, Inc. v. Commissioner, 153 T.C. 94 (2019); Dees v. Commissioner, 148 T.C. 1 (2017); Campbell v. Commissioner, 90 T.C. 110, 115 (1988).
The parties have not provided the Court with a complete copy of the notice of deficiency dated September 17, 2021.
Section 6212(a) authorizes the issuance of a notice of deficiency to a taxpayer when the Commissioner determines a deficiency as to that taxpayer. A notice of deficiency need not take any particular form to be valid. Campbell v. Commissioner, 90 T.C. 110, 115 (1988); see also Bokum v. Commissioner, 992 F.2d 1136 (11th Cir. 1993), aff'g, T.C. Memo. 1990-21, 58 T.C.M. (CCH) 1183; Benzvi v. Commissioner, 787 F.2d 1541 (11th Cir. 1986); U.S. Auto Sales, Inc. v. Commissioner, 153 T.C. 94 (2019); Dees v. Commissioner, 148 T.C. 1 (2017). A notice of deficiency must advise the taxpayer that the IRS has determined a deficiency with respect to the taxpayer and must specify the year and amount. Id. Based on the evidence in the record presently, the Court determines that the notice attached to the Petition is a valid notice of deficiency as it notified Mr. Fulford of a deficiency and proposed a penalty for 2020.
The parties have not shown that the tax year at issue in this case is 2019. Based on the partial notice attached to the Petition, the Commissioner's Answer, and the notice of deficiency attached to the Commissioner's Status Report filed November 3, 2022, the proper tax year at issue is 2020. Consequently, the Commissioner's motion related to tax year 2019 must be denied.
The premises considered, it is
ORDERED that the Commissioner's Motion to Dismiss for Lack of Jurisdiction, filed November 3, 2022, is denied without prejudice. It is further
ORDERED that the parties' Settlement Stipulation and Proposed Stipulated Decision, filed September 28, 2022, at Doc. 14 and Doc. 15, which relate to tax year 2019, are stricken from the Court's record and shall not be viewable as part of this case. It is further
ORDERED that jurisdiction is no longer retained by the undersigned and this case is restored to the general docket for trial or other disposition.