Opinion
21233-21
12-09-2022
ROBERT YORK, Petitioner 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 June 7, 2021, whereby petition seeks a redetermination of income tax deficiency for tax year 2015 (year in issue). Petitioner attached a copy of a notice of deficiency dated March 22, 2021. On paragraphs five and six of the petition, petitioner stated that: "The taxpayer self-prepared the return and understands now that several mistakes were made. Taxpayer agrees with the additional tax of $14,226 and is making voluntary payments toward that tax. Taxpayer is requesting abatement of the accuracy-related penalty of $2,845. Due to the complexity of the tax preparation process, taxpayer made several mistakes in preparing the return. Going forward, the taxpayer plans to use a tax professional to ensure returns are prepared correctly."
On October 5, 2021, respondent filed a Motion To Dismiss for Failure To State a Claim Upon Which Relief Can Be Granted. Subsequently, on October 22, 2021, respondent filed an amended motion to dismiss. By Order served June 14, 2022, the Court directed petitioner to file an objection to respondent's motion, if any, on or before July 12, 2022, and the Court offered petitioner the opportunity of filing a proper amended petition. Petitioner did not file an objection or an amended petition.
Rule 40 of the Tax Court Rule of Practice and Procedure 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 him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Price v. Moody, 677 F.2d 676, 677 (8th Cir. 1982).
Rule 34(b)(4) requires that a petition filed 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 contain clear and concise lettered statements of the facts on which the taxpayer bases the assignments of error. See Jarvis v. Commissioner, 78 T.C. 646, 658 (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 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 requirements of the Court's Rules. There is neither assignment of error nor allegation of fact in support of any justiciable claim. In particular, the Court would note that petitioner's position appears to be the opposite of a dispute that he owed the deficiency alleged by respondent; rather, he explicitly agreed to and states he is making payments toward the deficiency. Petitioner requested "abatement" of the accuracy-related penalty, but he did not claim that the penalty was wrongly imposed or that the requisite reasonable cause for relief existed. Petitioner conceded that he simply made mistakes in self-preparing of his Form 1040 return for the year in issue.
Dismissal of this matter likewise comports with principles governing burden of proof, as the burden of proof with respect to the deficiency lies with petitioner under the general premise of Rule 142(a) and has not shifted to respondent pursuant to section 7491(a). Although section 7491(c) would typically place the burden of production on respondent, petitioner's 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) for the penalty. 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 penalty would remain with petitioner. See Higbee v. Commissioner, 116 T.C. 438, 446-447 (2001).
The premises considered, it is
ORDERED that respondent's First Amended 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 tax year 2015, there is a deficiency in income tax due from petitioner in the amount of $14,226.00 and an accuracy-related penalty, pursuant to I.R.C. § 6662(a), due from petitioner in the amount $2,845.20.