Opinion
24432-22S
02-27-2023
IRINA SEMENOVA & NIKOLAY SHAPOSHNIKOV, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL FOR LACK OF JURISDICTION
Kathleen Kerrigan, Chief Judge
On January 6, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that no notice of deficiency and no notice of determination concerning collection action was issued to petitioners for tax year 2020, nor has respondent made any other determination with respect to tax year 2020 that would confer jurisdiction on the Court.
On November 21, 2022, petitioners filed the petition seeking review of tax year 2020.
This Court is a court of limited jurisdiction. It may therefore exercise jurisdiction only to the extent expressly provided by statute. Breman v. Commissioner, 66 T.C. 61, 66 (1976). In a case seeking the redetermination of a deficiency, the jurisdiction of the Court depends, in part, on the issuance by the Commissioner of a valid notice of deficiency to the taxpayer. Rule 13(c), Tax Court Rules of Practice and Procedure; Frieling v. Commissioner, 81 T.C. 42, 46 (1983). The notice of deficiency has been described as "the taxpayer's ticket to the Tax Court" because, without it, there can be no prepayment judicial review by this Court of the deficiency determined by the Commissioner. Mulvania v. Commissioner, 81 T.C. 65, 67 (1983).
Similarly, this Court's jurisdiction in a case seeking review of a determination concerning collection action under section 6320 or 6330, depends, in part, upon the issuance of a valid notice of determination by the IRS Office of Appeals under section 6320 or 6330. 6320(c) and 6330(d)(1); Rule 330(b), Tax Court Rules of Practice and Procedure; Offiler v. Commissioner, 114 T.C. 492, 498 (2000). A condition precedent to the issuance of a notice of determination is the requirement that a taxpayer have requested a hearing before the IRS Office of Appeals within the 30-day period specified in section 6320(a) or 6330(a), and calculated with reference to an underlying Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 6320 or Final Notice of Intent To Levy and Notice of Your Right to a Hearing.
On January 12, 2023, petitioners filed a Response to Motion to Dismiss for Lack of Jurisdiction. In their Response, petitioners do not dispute the jurisdictional allegations set forth in respondent's motion. Instead, petitioners assert that respondent failed to issue a notice of deficiency before assigning petitioners' account to a collection agency.
Petitioners have not provided a copy of a notice of deficiency or notice of determination that would confer jurisdiction on this Court. Because no notice of deficiency or notice of determination sufficient to confer jurisdiction on this Court has been sent to petitioners, this case must be dismissed for lack of jurisdiction.
To the extent that petitioners are seeking a refund of taxes paid, petitioners may file a claim for refund with the Internal Revenue Service and, if the claim is denied, sue for a refund in Federal District Court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 (1970). Taxpayers generally have two years to file a lawsuit following disallowance of a claim for refund. See sec. 6532(a)(1). However, the Tax Court is not the proper forum in which to do so. A taxpayer may seek judicial remedy for wrongful denial of refund claims - i.e., a refund suit in compliance with I.R.C. section 6532(a)(1) and 7422(a), either in the U.S. Court of Federal Claims pursuant to 28 U.S.C. section 1491(a)(1), or in Federal district court pursuant to 28 U.S.C. section 1346(a)(1). None of those statutes confer refund jurisdiction on this Court.
Upon due consideration, it is
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction is granted and this case is dismissed for lack of jurisdiction.