Seeley v. Comm'r of Internal Revenue ( 2021 )

20-2694-ag
Seeley v. Comm’r of Internal Revenue
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 30th day of June, two thousand twenty-one.
PRESENT: PIERRE N. LEVAL,
JOSÉ A. CABRANES,
MICHAEL H. PARK,
Circuit Judges.
JAMES A. SEELEY,
Petitioner-Appellant, 20-2694-ag
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent-Appellee.
FOR PETITIONER-APPELLANT: JAMES A. SEELEY, pro se, Texarkana, TX.
FOR RESPONDENT-APPELLEE: BETHANY B. HAUSER, BRUCE R. ELLISEN,
for David A. Hubbert, Acting Assistant
Attorney General, Tax Division, United
States Department of Justice, Washington,
D.C.
Appeal from a February 3, 2020 order of the United States Tax Court (Maurice B. Foley,
Chief Judge).
1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the February 3, 2020 order of the Tax Court is AFFIRMED.
Petitioner-Appellant James Seeley, proceeding pro se, appeals from the Tax Court’s February
3, 2020 order dismissing his case for lack of jurisdiction. On October 15, 2019, Seeley filed an
amended petition in the Tax Court disputing a notice of deficiency for the year 2010, but also stating
that he had never received a notice of deficiency. The Commissioner moved to dismiss on the
ground that the IRS had no record of issuing Seeley a notice of deficiency for 2010 or any other
notice that would confer jurisdiction on the Tax Court. Seeley opposed the motion to dismiss but
did not dispute that he was never issued a notice of deficiency; nor did he argue that there was any
other basis for the Tax Court’s jurisdiction. We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
We review de novo “[t]he Tax Court’s interpretation of federal statutes, including statutes
delimiting the scope of its own jurisdiction.” 1 The Tax Court is “a court of limited jurisdiction that
possesses only those powers expressly conferred upon it by Congress[.]” 2 The IRS must “follow
statutorily prescribed deficiency procedures to recover unpaid tax,” 3 including the issuance of a
notice of deficiency as described in 26 U.S.C. § 6212, and, pursuant to § 6213, this notice of
deficiency is “the jurisdictional prerequisite to a taxpayer’s suit in the Tax Court for redetermination
of his tax liability.” 4 Where, as here, the IRS has failed to issue a notice of deficiency to the taxpayer
before recovering unpaid income taxes the Tax Court lacks jurisdiction to review the deficiency
determination. 5
Seeley argues that the Tax Court had jurisdiction over his case under 26 U.S.C.
§ 6330(c)(2)(B) and (f)(2), and because it “has jurisdiction to hear cases for tax deficiencies.” 6 Section
6330 provides that, before the IRS levies a person’s property, the person must be given notice and
1
Maier v. Comm’r, 360 F.3d 361, 363 (2d Cir. 2004).
2
Id.3
Chai v. Comm’r, 851 F.3d 190, 195 (2d Cir. 2017).
4
Moretti v. Comm’r, 77 F.3d 637, 642 (2d Cir. 1996) (internal quotation marks omitted).
5
Id.; see also 26 U.S.C. § 6213(a) (allowing appeal to the Tax Court “after the notice of deficiency
. . . is mailed”).
6
Appellant’s Br. at 5-7. We construe Seeley’s citation to “26 U.S.C. § 6230(f)(2)” as a citation to
26 U.S.C. § 6330(f)(2) because there is no § 6230 in either the Code of Federal Regulations or the
U.S. Code, and 26 U.S.C. § 6330(f)(2) discusses IRS levies on state tax refunds, which is one aspect
of Seeley’s dispute with the IRS.
2
an opportunity for a hearing at the IRS Independent Office of Appeals, and that a determination by
that office may be appealed to the Tax Court. 7 It also states that a person who “did not receive any
statutory notice of deficiency” may challenge a tax liability imposed without such notice at a hearing
before the Office of Appeals, 8 and that if the IRS has levied a state tax refund to collect a federal
tax liability, “the taxpayer shall be given the opportunity” for a hearing before the Office of
Appeals. 9 The provisions Seeley cites are unavailing because they only confirm that the Office of
Appeals—and not the Tax Court—has jurisdiction to review Seeley’s claim.
Seeley also asserts that the IRS did issue a notice of deficiency, even though he did not
receive one. However, the record contains no evidence that the IRS ever issued such a notice and
the Commissioner determined, based on a diligent review of IRS records, that no “notice of
deficiency” within the meaning of 26 U.S.C. § 6212 was ever issued to Seeley for tax year 2010.
Accordingly, the Tax Court correctly dismissed Seeley’s case for lack of jurisdiction. 10
CONCLUSION
We have considered all Seeley’s arguments and find them to be without merit. Accordingly,
we AFFIRM the February 3, 2020 order of the Tax Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
7
26 U.S.C. § 6330(a)(1), (b)(1), (d)(1).
8
Id. at § 6330 (c)(2)(B).
9
Id. at § 6330(f).
10
Because we “lack[] jurisdiction to decide an issue that was not the subject of the Tax Court
proceeding,” we express no opinion on the merits of Seeley’s assertions regarding his 2010 income
tax liability. Maier, 360 F.3d at 363 (internal quotation marks omitted).
3