Scar v. Commissioner ( 1983 )

OPINION

Tannenwald, Judge-.

This case is before the Court on petitioners’ motion to dismiss for lack of jurisdiction, petitioners’ motion for summary judgment, and respondent’s motion for leave to file amendment to answer.¹

Petitioners filed a joint income tax return for the tax year 1978 with the respondent’s Service Center at Fresno, Calif., on or about September 3, 1979 (having previously obtained an extension of time to file the return through September 17, 1979). The return disclosed a tax liability of $3,269.

On June 14, 1982, respondent mailed to petitioners what purported to be a notice of deficiency. The first page is a standard form letter 892, with petitioners’ names and address and a statement that respondent had determined a deficiency with respect to petitioners’ taxable year ending December 31, 1978, in the amount of $96,600. An attached Form 5278 entitled "Statement — Income Tax Changes” purports to explain how the indicated deficiency was arrived at. This form shows an adjustment to income in the amount of $138,000 designated as "Partnership — Nevada Mining Project.” The Form 5278 has no information in the appropriate space for taxable income as shown on petitioners’ return as filed. It shows as the "Total corrected income tax liability” the sum of $96,600 and indicates that this sum was arrived at by multiplying 70 percent times $138,000.

Another attached document, designated as "Statement Schedule 2,” with the heading "Nevada Mining Project, Explanation of Adjustments,” states as follows:

In order to protect the government’s interest and since your original income tax return is unavailable at this time, the income tax is being assessed at the maximum tax rate of 70%.

The tax assessment will be corrected when we receive the original return or when you send a copy of the return to us.

The increase in tax may also reflect investment credit or new jobs credit which has been disallowed.

Also attached to the purported notice of deficiency is a document designated as "Statement Schedule 3,” with the heading "Nevada Mining Project, Explanation of Adjustments” and the following statement:

It is determined that the alleged losses claimed by you in your income tax return for the taxable yearfe) 7812 with respect to an alleged partnership known as NEVADA MINING PROJECT are not allowable because you have not established that the transactions in which the partnership was involved or in which you were involved with respect to the partnership were bona fide arm’s length transactions at fair market value, that such transactions were entered into for profit, or that such transactions had any economic substance other than the avoidance of taxes.

If the determination as set forth above is not sustained, then it is determined in the alternative that the partnership loss is not allowed for the following reasons:

(1) It has not been established that partnership expenses have been incurred, or, if incurred, were ordinary and necessary business expenses.

(2) In addition, you have failed to establish any adjusted basis in the NEVADA MINING PROJECT partnership by way of capital investment, partnership indebtedness, or otherwise. To the extent that you do have any adjusted basis, the claimed loss(es) in excess thereof are not allowable.

(3) In any event, any loss is limited to the amount you had at risk as defined in Section 465 of the Internal Revenue Code, which amount has not been established.

Therefore, your taxable income is increased as shown below.

Taxable Year(s): 7812

Loss(es) Reported: ($96,600)

Loss(es) Corrected: _0

Adjustment: 96,600

Petitioners timely filed a petition with this Court on July 7, 1982. In their petition, they allege that they have never been associated with the "Nevada Mining Project Partnership” and did not claim on their 1978 return any expenses or losses related to this venture. Respondent filed an answer denying the substantive allegations of the petition.

On December 6, 1982, petitioners filed their motion to dismiss for lack of jurisdiction. In support of their motion, petitioners contend: (1) A determination, the prerequisite of a valid notice of deficiency, was never made by respondent; (2) if a determination was made, no meaningful notice thereof was sent to the petitioners as required; (3) the notice sent to petitioners advises of an assessment of tax concurrently with the notice, which action is inconsistent with the issuance of a notice of deficiency and fatal to its validity.

In his memorandum filed on February 4,1983, in connection with his opposition to petitioners’ motion, as well as at the hearing held on March 21, 1983, respondent agreed with petitioners’ statement that petitioners "were not partners of any mining partnership nor did they have any investment or involvement in any mining activity. No item reported on Petitioners’ income tax return involved any mining operation.”

On March 25, 1983, petitioners filed a motion for summary judgment based upon respondent’s concession.

On April 5, 1983, respondent filed a motion for leave to file amendment to answer. In his proposed amendment to answer, respondent seeks to disallow deductions claimed by petitioners with respect to a video tape production on their 1978 return, and to assert a resulting deficiency in the amount of $10,374. A letter dated November 29, 1982, from respondent’s counsel to petitioners’ counsel attached to respondent’s memorandum sets forth a revised calculation of the asserted deficiency for the taxable year 1978 based on such disallowance in the amount of $10,374 and indicates that, prior to that time, a statutory notice of deficiency had been issued to petitioners disallowing such deductions for the taxable year 1977. At the hearing on March 21, 1983, petitioners’ counsel admitted contact with respondent with respect to the taxable year 1977. The Court’s records reveal that a statutory notice of deficiency for the taxable year 1977 disallowing deductions in respect of a video tape production was issued to petitioner on April 9,1981, and that a petition was filed by petitioners on June 30, 1981.

At the hearing on petitioners’ motion to dismiss for lack of jurisdiction, respondent’s counsel explained the circumstances leading to the issuance of the purported notice of deficiency to petitioners and its erroneous association of petitioners with the Nevada Mining Project. Petitioners’ 1978 return was placed in a "suspense status” by the Los Angeles District Director because of the District Director’s association of the return with a tax shelter project. The tax shelter project was identified only by a "freeze code” number. In using respondent’s computer, respondent’s agents in the Los Angeles District transposed digits in the freeze code number and obtained proposed adjustment language for the Nevada Mining Project which was being audited by the Reno District Director. The correct freeze code number would apparently have produced information concerning Executive Productions, Inc., a video tape tax shelter which respondent now contends petitioners were involved in and with respect to which petitioners claimed deductions on their 1978 return. At no time prior to the issuance of the purported deficiency notice for the taxable year 1978 did respondent’s agents make an effort to obtain petitioners’ 1978 return or to contact petitioners.

Petitioners’ primary position with respect to their motion to dismiss for lack of jurisdiction is founded on the assertion that respondent has not "determined that there is a deficiency” within the meaning of section 6212(a).² Petitioners argue that it is apparent from the face of the attachments to the purported notice of deficiency that the alleged "determination” bears no relationship to the return which the petitioners filed or should have filed and that respondent’s "determination” did not satisfy the definition of "deficiency” in section 6211(a), in that he did not determine that there was an excess of the amount of tax allegedly due from petitioner over the amount shown as the tax on petitioners’ return.³ Respondent argues that the purported notice of deficiency, which was concededly properly addressed, set forth the amount which was claimed to be owed as a deficiency and the taxable year involved and that this satisfied the statutory requirement of section 6212(a). We agree with respondent.

We start from the established principle that no particular form is required for a statutory notice of deficiency. Commissioner v. Forest Glen Creamery Co., 98 F.2d 968, 971 (7th Cir. 1938); Jarvis v. Commissioner, 78 T.C. 646, 655-656 (1982). As Judge Learned Hand stated in Olsen v. Helvering, 88 F.2d 650, 651 (2d Cir. 1937), "the notice is only to advise the person who is to pay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough.” See also Commissioner v. Stewart, 186 F.2d 239, 241 (6th Cir. 1951), revg. a Memorandum Opinion of this Court.

The requirements of section 6212(a) are met if the notice of deficiency sets forth the amount of the deficiency and the taxable year involved. See Foster v. Commissioner, 80 T.C. 34, 229-230 (1983). It need not contain any particulars or explanations as to how the deficiencies were determined. See Barnes v. Commissioner, 408 F.2d 65, 68 (7th Cir. 1969), affg. a Memorandum Opinion of this Court. See also Abatti v. Commissioner, 644 F.2d 1385, 1389 (9th Cir. 1981), revg. on other grounds a Memorandum Opinion of this Court.⁴

We are satisfied that the deficiency notice herein meets the aforementioned standards insofar as any question of our jurisdiction is concerned. The fact that it subsequently develops even prior to trial that there was no deficiency on the basis of the grounds set forth in the deficiency notice is irrelevant. See Hannan v. Commissioner, 52 T.C. 787 (1969). The definition of a "deficiency” contained in section 6211(a) does not require a different conclusion. As we see it, this definition simply outlines the method by which a notice of deficiency should be constructed and does not affect the jurisdiction of this Court. To conclude otherwise would make it mandatory for the Court to go behind the deficiency notice where the petitioner raises the question of whether respondent utilized his tax return in constructing the notice. Such a procedure would fly in the face of the long-established principle that this Court will ordinarily not look behind a deficiency notice. Riland v. Commissioner, 79 T.C. 185, 201 (1982); Greenberg’s Express, Inc. v. Commissioner, 62 T.C. 324, 327 (1974). Clearly, no constitutional considerations are involved herein which might justify an exception to this general' rule. Riland v. Commissioner, supra; Greenberg’s Express, Inc. v. Commissioner, supra at 328. Moreover, we note that, even in situations where the courts have gone behind a deficiency notice, they have not ruled that such notice was null and void, which would be the result herein if we accepted petitioners’ contentions. See Greenberg’s Express, Inc. v. Commissioner, supra at 328. But cf. Llorente v. Commissioner, 649 F.2d 152, 155 n. 4, 157 (2d Cir. 1981), modifying 74 T.C. 260 (1980).

Similarly, we are not persuaded that we should reach a contrary conclusion because the deficiency notice herein reveals on its face that respondent’s calculations were not based upon, and did not bear any relationship to, petitioners’ return. The concept that the requirement of section 6211(a) is one of methodology and has no jurisdictional significance is equally applicable whether or not respondent’s .failure to utilize a taxpayer’s return is patent or latent.

In sum, we hold that the deficiency notice herein was valid and that, with the filing of a timely petition, we have jurisdiction to proceed. Cf. Frieling v. Commissioner, 81 T.C. 42 (1983); Mulvania v. Commissioner, 81 T.C. 65 (1983).⁵ In so holding, we emphasize that we view respondent’s actions in constructing and issuing the deficiency notice herein as far from satisfactory. Respondent is reminded that, while a deficiency notice may be held to provide a sufficient foundation for jurisdictional purposes, it may nevertheless be held to be arbitrary and capricious, with the result that not only is its presumption of correctness destroyed,⁶ but the burden of going forward or the burden of proof is shifted to respondent. Helvering v. Taylor, 293 U.S. 507 (1935); Jackson v. Commissioner, 73 T.C. 394, 401 (1979). In the instant case, the combination of respondent’s concession as to the substantive issue set forth in the deficiency notice and the fact that his amendment to answer raises a new issue makes it unnecessary for us to decide whether the deficiency notice is so inadequate as to produce this consequence.⁷

Petitioners’ assertion that the notice of deficiency is invalid because it advises them of an assessment concurrently with the notice is without merit. Petitioners concede that no assessment has been made. Webster’s Third New International Dictionary (1965 ed.), defines "assess” as meaning "to determine the rate or amount of’ a tax. The use of the word "assessment” in the instant deficiency notice meant no more than that. Such use may have been technically incorrect, but it clearly does not rise to the level of depriving the deficiency notice of its validity. Cf. Commissioner v. Forest Glen Creamery Co., supra at 971. Bromberg v. Ingling, 300 F.2d 859 (9th Cir. 1962), cited by petitioners, is clearly distinguishable. That case, in addition to dealing with a special situation relating to Guam, involved an injunction where the taxpayer had been assessed and had not been given an opportunity for prepayment review.

We turn now to respondent’s motion for leave to file an amendment to his answer and petitioners’ motion for summary judgment. Initially, we observe that each of these motions was served by the moving party on the other party, but the Court has neither served such other party with a notice for response nor set either motion for hearing. Usually, the Court would take such action. However, it is not required to do so where, as is the case herein, each nonmoving party has been apprised of the motion (see Rule 50(b)(3), Tax Court Rules of Practice and Procedure) and, under the circumstances, we are satisfied that no purpose would be served by so doing. We are satisfied that, on the basis of the existing record herein and our own research, we can proceed to dispose of both motions.

The fact that, if the deficiency notice herein had not been issued, the issuance of a notice of deficiency covering the disallowed deductions in respect of the video tape production for 1978 would presumably have been barred by the statute of limitations⁸ does not require us to deny respondent’s motion. Here, a timely deficiency notice, which we have held to be valid, was issued and that notice tolled the statute of limitations. See sec. 6213(a); Frieling v. Commissioner, supra. Compare Deakman-Wells Co. v. Commissioner, 213 F.2d 894, 897-899 (3d Cir. 1954), revg. 20 T.C. 610 (1953). Under these circumstances, even if respondent had asked for an increased deficiency (respondent has actually reduced his asserted deficiency herein, see p. 859 supra ) as well as asserting a totally new issue, allowance of an amendment to his answer could be granted. Teitelbaum v. Commissioner, 346 F.2d 266 (7th Cir. 1965), affg. a Memorandum Opinion of this Court.⁹ In considering what action we should take on respondent’s motion, we think it significant that the substantive issue, which respondent seeks to place before the Court, is already the subject of a pending case with respect to petitioners’ taxable year 1977. See pp. 858-859 supra. Thus, petitioners will, in any event, be put to the expense of defending the substantive issue of the disallowance of the deductions in respect of the video tape production. Moreover, we note that the case has not yet been set for trial. Thus, no element of surprise is involved.

In view of the foregoing, we can see no prejudice to petitioners in granting respondent’s motion. We observe, however, that we would not necessarily reach the same conclusion if we did not have the ameliorating circumstance of the pendency of the case involving the taxable year 1977. We do not think that our holding that a deficiency notice is valid for jurisdictional purposes requires us to conclude that respondent may amend his answer as a matter of right and irrespective of the circumstances at any time "at or before the hearing or a rehearing” of a case (see sec. 6214(a)), if, in the exercise of our discretion, we should determine that respondent should not be permitted to do so. Cf. Jasionowski v. Commissioner, 66 T.C. 312, 317 (1976). See also Commissioner v. Long’s Estate, 304 F.2d 136, 144 (9th Cir. 1962); Koufman v. Commissioner, 69 T.C. 473, 476 (1977); Estate of Horvath v. Commissioner, 59 T.C. 551, 554-556 (1973).¹⁰ Respondent will, of course, have the burden of proof on the issues raised by the amendment to his answer. Rule 142(a).

Our granting of respondent’s motion for leave to file the amendment to his answer obviously results in the existence of issues of fact which preclude the granting of petitioners’ motion for summary judgment.

Petitioners’ motion to dismiss for lack of jurisdiction will be denied.

Respondent’s motion for leave to file amendment to answer will be granted.

Petitioners’ motion for summary judgment will be denied.

Reviewed by the Court.

1 Pursuant to an order of the Court, petitioners’ motion to dismiss for lack of jurisdiction was assigned for hearing to Special Trial Judge Darrell D. Hallett and, on the authority of the "otherwise provided” language of Rule 182, Tax Court Rules of Practice and Procedure, the post-trial procedures set forth in that Rule are not applicable. The hearing was held on Mar. 21,1983. See 862-864 infra, with respect to petitioners’ motion for summary judgment and respondent’s motion for leave to file amendment to answer. Judge Hallett resigned on July 1,1983, and the aforesaid motions have been assigned to Judge Theodore Tannenwald, Jr., for disposition.

2 All statutory references herein are to the Internal Revenue Code of 1954 as amended. Sec. 6212(a) provides as follows:

SEC. 6212(a). In General. — If the Secretary determines that there is a deficiency in respect of any tax imposed by subtitle A or B or chapter 41,42,43,44, or 45, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.

3 See. 6211(a) provides as follows:

SEC. 6211(a). In General. — For purposes of this title in the case of income, estate, and gift taxes imposed by subtitles A and B and excise taxes imposed by chapters 41,42, 43,44, and 45 the term "deficiency” means the amount by which the tax imposed by subtitle A or B, or chapter 41,42,43,44, or 45 exceeds the excess of—

(1) the sum of

(A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus

(B) the amounts previously assessed (or collected without assessment) as a deficiency, over—

(2) the amount of rebates, as defined in subsection (bX2), made.

4 See also Hart v. Commissioner, T.C. Memo. 1982-553; Stevenson v. Commissioner, T.C. Memo. 1982-16.

5 With respect to petitioners’ argument that they might well have thrown the notice of deficiency away and, as a consequence, been assessed the tax claimed to be due, we observe that, in such event, they would have been able, in a collection action, to make the same arguments as made herein and been subject to the same expense. Our ruling provides them with a forum to litigate the substantive issues without prepayment — a procedure which would not have been available to them if their resistance to the assessment was unsuccessful.

6 See Llorente v. Commissioner, 74 T.C. 260, 272 (1980) (Tannenwald, J., concurring).

7 See also our discussion, pp. 862-864 infra, in respect of respondent’s motion for leave to file an amendment to his answer.

8 Petitioners filed their 1978 return on or about Sept. 3, 1979, and, as far as this record shows, were first put on notice as to the disallowance of these deductions more than 3 years later, namely, on Nov. 29,1982. The issuance of a deficiency notice would have been barred at that time, since there is no indication that the statute of limitations was extended. Sec. 6501(a) and (c).

9 See also Scharf v. Commissioner, T.C. Memo. 1973-272, and cases cited therein.

10 See also Spain v. Commissioner, T.C. Memo. 1978-270.