Opinion
5280-22
12-07-2022
RICHARD A. TURNER & KIMBERLY A. TURNER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL AND DECISION
Adam B. Landy, Special Trial Judge
The petition commencing this case was filed on February 17, 2022. The petition consisted of a copy of the notice of deficiency (notice) dated November 22, 2021, and issued to petitioners with respect to their 2019 taxable year and attached copies of their 2019 W-2 earnings statement. Although petitioners signed and dated Form 5564, Notice of Deficiency - Waiver page attached to the notice, petitioners did not make any statements, claims, or allegations of error. On April 28, 2022, respondent filed a Motion To Dismiss for Failure To State a Claim Upon Which Relief Can Be Granted. Petitioners failed to file an amended petition or an objection or response to respondent's motion although being afforded the opportunity to do so.
Rule 34(b)(4) requires that a petition contain clear and concise assignments of each and every error that the taxpayer alleges to have been committed by respondent in the determination of the deficiency and penalty in dispute. See Gordon v. Commissioner, 73 T.C. 736, 739 (1980). Rule 34(b)(5) further requires that the petition contains clear and concise lettered statements of the facts on which petitioners base their assignments of error. See Jarvis v. Commissioner, 78 T.C. 646, 658 (1982).
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Rule 40 provides that a party may file a motion to dismiss for failure to state a claim upon which relief can be granted. The Court may grant such a motion when it appears beyond doubt that the party's adversary can prove no set of facts in support of a claim that would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Any issue not raised in the assignments of error is deemed to be conceded. Rule 34(b)(4); Jarvis v. Commissioner, 78 T.C. at 658 n.19; Gordon v. Commissioner, 73 T.C. at 739. Further, the failure of a party to plead or otherwise proceed as provided in the Court's Rules may be grounds for the Court to hold such a party in default, either on the motion of another party or on the initiative of the Court. Rule 123(a). Similarly, the failure of a petition to conform to the requirements set forth in Rule 34 may be grounds for dismissal. Rules 34(a)(1), 123(b).
The petition herein does not satisfy the Court's rules. There is neither assignment of error nor allegation of fact by petitioners in support of any justiciable claim. The signing of the notice's waiver page is inferred to suggest petitioners' agreement with the proposed adjustments made by respondent.
Dismissal of this matter likewise comports with principles governing burden of proof, insofar as such burden on the deficiency lies with petitioners under the general premise of Rule 142(a) and has not shifted pursuant to section 7491(a). Concerning the penalty, although section 7491(c) would typically place the burden of production on respondent, petitioners' failure to assign error to the determination of the penalty and to raise any justiciable claims in that connection serves to vitiate and relieve respondent of the obligation set forth in section 7491(c). See Funk v. Commissioner, 123 T.C. 213, 217-218 (2004); Swain v. Commissioner, 118 T.C. 358, 363-365 (2002). Moreover, the ultimate burden in any event of establishing reasonable cause to the penalties remains with petitioners. See Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).
Upon due consideration of respondent's motion and for cause, it is
ORDERED that respondent's Motion To Dismiss For Failure To State A Claim Upon Which Relief Can Be Granted is granted, and this case is dismissed on the stated ground. It is further
ORDERED AND DECIDED that, for taxable year 2019, petitioners are liable for a deficiency in income tax in the amount of $8,567.00, and an accuracy-related penalty pursuant to I.R.C. § 6662(a) in the amount of $596.00.