Landess v. Commissioner , 354 F. App'x 338 ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
December 1, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DAVID E. LANDESS,
Petitioner - Appellant, No. 09-9001
v. (United States Tax Court)
COMMISSIONER OF INTERNAL (Tax Court No. 5393-07)
REVENUE,
Respondent - Appellee.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.
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.
David Landess, proceeding pro se, appeals the Tax Court’s order granting
the Commissioner of the Internal Revenue Service’s motion to dismiss for lack of
*
This order and judgment is not binding precedent except under the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.
jurisdiction and denying as moot his motion to restrain assessment or order refund
of amount collected. We affirm.
The Tax Court properly concluded that it lacked jurisdiction because
Mr. Landess was never issued a Notice of Deficiency or a Notice of
Determination. See 26 U.S.C. §§ 6213, 6330; Abrams v. Comm’r, 814 F.2d 1356,
1357 (9th Cir. 1987) (per curiam) (holding that a pre-filing notification letter
from the Internal Revenue Service was not a Notice of Deficiency and therefore,
the Tax Court had no jurisdiction over the taxpayer’s petition); see also Tuka v.
Comm’r, No. 09-1598, 2009 WL 3236066, at *1-2 (3rd Cir. 2009) (unpublished)
(“[T]he lock-in letter . . . does not constitute a notice of determination.”); Davis
v. Comm’r, T.C. Memo. 2008-238, 2008 WL 4703706, at *7 (2008) (“[A] lock-in
letter is not a levy.”).
We have examined all of Mr. Landess’s arguments and find them
unpersuasive.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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