Techtron Holding, Inc. ( 2023 )

United States Tax Court
T.C. Memo. 2023-29TECHTRON HOLDING, INC.,
Petitioner
v.
COMMISSIONER OF INTERNAL REVENUE,
Respondent
—————
Docket No. 10304-17. Filed March 9, 2023.
—————
Frank Agostino, for petitioner.
Leon St. Laurent, for respondent.
MEMORANDUM OPINION
VASQUEZ, Judge: This case for redetermination of a deficiency
and a section 6663 civil fraud penalty is before the Court on our Order
to Show Cause (OTSC) dated June 16, 2020. 1 Therein the Court directed
petitioner, Techtron Holding, Inc., to show cause why this case should
not be dismissed for lack of jurisdiction on the ground that petitioner
lacks capacity to litigate in this Court. For the reasons explained below,
we will make our OTSC absolute and dismiss this case for lack of
jurisdiction.
1 Unless otherwise indicated, all statutory references are to the Internal
Revenue Code (Code), Title 26 U.S.C., in effect at all relevant times, all regulation
references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all
relevant times, and all Rule references are to the Tax Court Rules of Practice and
Procedure.
Served 03/09/23
2
[*2] Background
Some of the facts have been stipulated and are so found. We
incorporate the First Stipulation of Facts and accompanying Exhibits
(other than those not admitted at the evidentiary hearing mentioned
below) by this reference. We state these findings of fact solely for the
purpose of disposing of the OTSC and not as findings of fact on the
merits of this case.
Petitioner and subsidiaries
Petitioner was organized under the laws of Delaware on
November 30, 2000. Petitioner was a C corporation with a principal
place of business in New Jersey. Alvin Trenk and his son Steven Trenk
were petitioner’s majority shareholders. Alvin Trenk was petitioner’s
chief executive officer (CEO) and chairman, and Steven Trenk was its
president.
As of December 31, 2000, petitioner was the parent of an affiliated
group of corporations which included Techtron, Inc. (Techtron). Like
petitioner, Techtron was a C corporation organized under the laws of
Delaware. Alvin Trenk was Techtron’s CEO and chairman, and Steven
Trenk was its president.
On September 25, 2001, petitioner’s consolidated Form 1120, U.S.
Corporation Income Tax Return (2000 consolidated return), was filed for
its taxable year ended (TYE) December 31, 2000. The 2000 consolidated
return named petitioner as parent corporation for the “Techtron
Holding, Inc. and Subsidiaries (FKA Techtron, Inc.)” consolidated group
(Holding consolidated group). 2 On the return the Holding consolidated
group reported total income of $1,564,061 and claimed “[o]ther
deductions” of $1,602,686.
Subsequent mergers
In 2001 the Holding consolidated group commenced a series of
mergers. On January 5, 2001, petitioner merged downstream into
Techtron with Techtron surviving the merger. On December 27, 2001,
Techtron merged with and into Gold Crown Insurance, Ltd. (Gold
Crown), a British Virgin Islands corporation. Pursuant to an agreement
2 In addition to petitioner, the Holding consolidated group comprised Techtron,
Diatronics, Inc., Thermatech, Inc., Physicians Healthcare of America, Inc., Pizza
Piazza, Inc., and Pizza Piazza of NY, Inc.
3
[*3] and plan of reorganization (merger agreement) between those
entities, Gold Crown survived the merger. Before this transaction, Alvin
and Steven Trenk were the majority shareholders of Techtron.
Thereafter they became majority shareholders of Gold Crown, which
had the same owners and ownership percentages as Techtron. Alvin
and Steven Trenk served as directors and officers of Gold Crown from
2001 to 2007.
In September 2002 a final consolidated return was filed for
Techtron’s TYE December 27, 2001. The final consolidated return
named as the taxpayer “Techtron Inc. & Subsidiaries (FKA Techtron
Holding Inc. & Subsidiaries).” An attachment to the final consolidated
return reported that petitioner had merged into Techtron on January 5,
2001, with Techtron surviving the merger. The attachment also
reported that the Holding consolidated group had continued to exist
after the merger (with Techtron as the substituted common parent
pursuant to the applicable consolidated return regulations). On another
attachment Techtron reported that it had merged into Gold Crown on
December 27, 2001.
Examination
In April 2004 respondent commenced an examination of
petitioner’s 2000 consolidated return. Respondent assigned Revenue
Agent (RA) Candi J. Samansky to the examination. RA Samanksy’s
initial goal was to secure petitioner’s consent to extend the period of
limitations on assessment for 2000. She prepared Form 872–I, Consent
to Extend the Time to Assess Tax As Well As Tax Attributable to Items
of a Partnership, bearing petitioner’s name and extending the period of
limitations by approximately one year. In July 2004 she mailed the
Form 872–I to the address on petitioner’s 2000 consolidated return. On
August 1, 2004, Steven Trenk signed the Form 872–I on behalf of
petitioner.
RA Samansky became concerned about the effect of petitioner’s
merger into Techtron, and Techtron’s merger into Gold Crown. After
conferring with an attorney from the Office of Chief Counsel, she
prepared another Form 872–I bearing the name “Gold Crown Insurance
Ltd, as successor in interest to Techtron Inc, as successor in interest to
Techtron Holdings [sic] Inc.” On August 5, 2004, Steven Trenk signed
the Form 872–I on behalf of Gold Crown.
4
[*4] In November 2004 the law firm Calo Agostino advised
RA Samansky that it was representing petitioner and Gold Crown in
connection with the examination of petitioner’s 2000 consolidated
return. Calo Agostino provided RA Samansky with two Forms 2848,
Power of Attorney and Declaration of Representative, designating
Frank Agostino and other individuals as petitioner’s and Gold Crown’s
authorized representatives.
On February 10, 2005, Calo Agostino faxed RA Samansky
Form 2045, Transferee Agreement, which was signed on behalf of Gold
Crown by Steven Trenk. The Form 2045 identifies Techtron as the
“Transferor” and Gold Crown as the “Transferee.” It provides in
relevant part:
In consideration of the Commissioner of Internal Revenue
not issuing a notice of deficiency to and making an
assessment against the above-named transferor
[Techtron], the undersigned, as transferee of assets
received from the above-named transferor, assumes and
agrees to pay the amounts of any and all Federal income or
profits taxes finally determined or adjudged as due and
payable by such transferor for the tax years ended
December 31, 2000*, to the extent of the liability at law or
in equity as transferee within the meaning of section 6901
of the Internal Revenue Code and corresponding provisions
of internal revenue laws.
A typewritten notation underneath the above excerpt states that the
taxable year is “*with respect to tax liabilities of Techtron Holdings [sic]
. . . for 12-31-2000.”
In 2005 respondent issued a summons to Steven Trenk in
connection with the examination of petitioner’s 2000 consolidated
return. From 2005 through 2011, that summons was the subject of an
enforcement action in the U.S. District Court for the District of New
Jersey and the U.S. Court of Appeals for the Third Circuit. See United
States v. Trenk, 385 F. App’x 254 (3d Cir. 2010).
Between 2005 and 2009 Mr. Agostino signed five successive
Forms 872–I. Mr. Agostino also signed seven successive Forms 872,
Consent to Extend the Time to Assess Tax, between 2010 and 2016.
Those consent forms signed by Mr. Agostino purportedly granted a
limited extension of the period of limitations for petitioner’s TYE
5
[*5] December 31, 2000. 3 Each of those consent forms was captioned:
“Gold Crown Insurance Ltd. (EIN . . . ), as successor to Techtron, Inc.,
as successor to Techtron Holdings [sic] Inc. (EIN . . . ), and as alternative
agent for the members of the Techtron Holdings [sic] Inc. and Subs.
Consolidated group.”
Statutory notice of deficiency
In 2015 respondent’s Examination Division proposed
adjustments to petitioner’s 2000 consolidated return. Petitioner
protested the Examination Division’s proposed adjustments to the
Internal Revenue Service’s Office of Appeals (Appeals).
On April 11, 2017, Appeals issued a statutory notice of deficiency
(SNOD) determining a deficiency in federal income tax and a section
6663 civil fraud penalty for petitioner’s TYE December 31, 2000. 4 The
SNOD package included (1) a three-page cover letter, (2) Form 5278,
Statement–Income Tax Changes, and (3) Form 886–A, Explanation of
Items. Therein respondent determined an upward adjustment of
$5,200,000 to petitioner’s other income. Respondent also disallowed
other deductions of $25,000.
The names and address on the first page of the cover letter appear
as follows:
3 The consent forms signed by Mr. Agostino restricted the amount of any
assessment to that resulting from particular adjustments not here relevant. Petitioner
contends that the adjustments underlying the determined deficiency fall outside the
scope of the restriction. Additionally, petitioner disputes the validity of the consent
forms on the ground that respondent failed to notify petitioner of its right to refuse to
extend the period of limitations under section 6501(c)(4)(B). Petitioner also disputes
the validity of the consent forms signed by Steven Trenk in August 2004. We express
no opinion about the scope or validity of any of the consent forms.
4 Respondent also determined an alternative section 6662(a) accuracy-related
penalty in the event the section 6663 penalty did not apply. The parties stipulated
that petitioner is not liable for the section 6663 penalty.
6
[*6]
While the first page of the cover letter identifies petitioner and Gold
Crown, 5 the Form 5278 and the Form 886–A name only petitioner as the
taxpayer. The only employer identification number referenced in the
SNOD is petitioner’s.
Tax Court proceedings
On May 9, 2017, the Petition in this case was filed. The Petition
was captioned in petitioner’s name only and signed by Mr. Agostino as
counsel for petitioner. Therein petitioner alleged that the “three and six
year statutes of limitations” on assessment had expired under section
6501.
After this case was calendared for trial, the parties jointly moved
to bifurcate from the rest of the case the issue of whether the Forms
872–I and 872 had extended the period of limitations under section
6501(c)(4). The parties requested that we hold an evidentiary hearing
on the section 6501(c)(4) issue at the April 9, 2018, New York, New York,
trial session and continue the remainder of the case. We granted the
parties’ Motion and held an evidentiary hearing on the section 6501(c)(4)
issue at that trial session.
Thereafter the parties filed Simultaneous Opening and
Answering Briefs. Although neither party asserted that we lack
5 The post office box address on the notice matches that reported for petitioner
and Gold Crown on an updated Form 2848 provided to respondent by Mr. Agostino in
2015.
7
[*7] jurisdiction, the parties’ briefs raised questions about petitioner’s
corporate status and its capacity to litigate in this Court. 6
By the OTSC dated June 16, 2020, we directed petitioner to show
cause why this case should not be dismissed for lack of jurisdiction on
the ground that petitioner lacks capacity to litigate in this Court.
Petitioner and respondent each filed a responsive Memorandum of Law
(MOL). Petitioner argued in its MOL that we should dismiss this case
for lack of jurisdiction on the ground that the SNOD was invalid. In the
alternative petitioner argued that we should allow Gold Crown to
substitute for petitioner under Rule 63. In response, respondent
asserted that Gold Crown has neither ratified nor expressed an
intention to ratify the Petition.
By Order filed January 21, 2022, we directed petitioner to address
respondent’s argument regarding ratification. On February 22, 2022,
petitioner filed an MOL acknowledging “that Gold Crown has not
ratified the Petition.” Respondent filed a responsive MOL on March 4,
2022.
Discussion
I. Jurisdiction and corporate capacity
We are a legislatively created (Article I) court; consequently, our
jurisdiction flows directly from Congress. See Freytag v. Commissioner,
501 U.S. 868, 870 (1991); Kelley v. Commissioner, 45 F.3d 348, 351 (9th
Cir. 1995), aff’g T.C. Memo. 1990-158; Neilson v. Commissioner, 94 T.C.
1, 9 (1990); Naftel v. Commissioner, 85 T.C. 527, 529 (1985); see also
§ 7442. The Court is a court of limited jurisdiction and lacks general
equitable powers. Commissioner v. McCoy, 484 U.S. 3, 7 (1987);
Commissioner v. Gooch Milling & Elevator Co., 320 U.S. 418, 420 (1943).
Whether we have jurisdiction to decide a matter is an issue that a party,
or this or an appellate court sua sponte, may raise at any time. David
Dung Le, M.D., Inc. v. Commissioner, 114 T.C. 268, 269 (2000), aff’d, 22
F. App’x 837 (9th Cir. 2001).
To have jurisdiction here we must find that (1) respondent issued
petitioner a valid notice of deficiency and (2) petitioner, or someone
authorized to act on its behalf, filed a timely petition with the Court.
See Rule 13(a), (c); Hallmark Rsch. Collective v. Commissioner,
6 Respondent questioned petitioner’s capacity to litigate and suggested that the
Petition was filed on behalf of Gold Crown under an incorrect caption.
8
[*8] No. 21284-21, 159 T.C., slip op. at 14 (Nov. 29, 2022); Monge v.
Commissioner, 93 T.C. 22, 27 (1989); Timbron Int’l Corp. v.
Commissioner, T.C. Memo. 2019-31, at *4; see also §§ 6212 and 6213.
With respect to corporate taxpayers like petitioner, a proper filing
requires taxpayers tendering petitions to the Court to have the capacity
to engage in litigation before this Court. See Rule 60(c); see also
Brannon’s of Shawnee, Inc. v. Commissioner, 71 T.C. 108, 111 (1978);
Condo v. Commissioner, 69 T.C. 149, 151 (1977). Rule 60(c) provides
that “[t]he capacity of a corporation to engage in such litigation shall be
determined by the law under which it was organized.”
As stipulated by the parties, petitioner was organized under the
laws of Delaware. Therefore, Delaware law controls. 7 See Rule 60(c).
Under Delaware law, the surviving corporation in a merger
succeeds to and is liable for the debts and liabilities of the acquired
corporation to the same extent as if incurred by the successor
corporation. Del. Code Ann. tit. 8, § 259(a) (2022); see S. Pac. Transp.
Co. v. Commissioner, 84 T.C. 367, 373 (1985). The statute also provides
that, after a merger, the separate existence of all corporations other than
the surviving corporation “shall cease.” Del. Code Ann. tit. 8, § 259(a).
Accordingly, nonsurviving corporations under Delaware law cannot sue
or be sued. See Beals v. Wash. Int’l. Inc., 386 A.2d 1156, 1161–62 (Del.
Ch. 1978) (quashing service of process on nonsurviving corporate
defendant because it had ceased to exist on merger “for all purposes,
including service of process, unless the legislature provides otherwise”);
Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Stauffer Chem. Co.,
No. 87C-SE-11, 1991 Del. Super. LEXIS 269, at *7–8 (Del. Super. Ct.
July 15, 1991) (dismissing claims against nonsurviving corporation
because it lacked the capacity to sue or be sued); see also Beam v.
Monsanto Co., 414 F. Supp. 570, 579 (W.D. Ark. 1976) (“By virtue of the
merger, the merged corporation loses its capacity to sue the corporation
into which it has been merged . . . .” (quoting Basch v. Talley Indus., Inc.,
53 F.R.D. 9, 11–12 (S.D.N.Y. 1971))); Sevits v. McKiernan-Terry Corp.,
264 F. Supp. 810, 811 (S.D.N.Y. 1966) (holding that under Delaware law,
the surviving corporation after a merger is the only corporation with
capacity to be sued).
7 Petitioner originally asserted that it had capacity to litigate this case under
New Jersey law. However, petitioner has since acknowledged that Delaware law is
controlling with respect to its capacity under Rule 60(c).
9
[*9] The record establishes that petitioner merged into Techtron on
January 5, 2001, with Techtron surviving the merger. That same year
Techtron merged with and into Gold Crown with Gold Crown surviving
the merger. Petitioner acknowledges that it did not exist during any
part of respondent’s examination of its 2000 consolidated return. Thus,
having ceased to exist after January 5, 2001, petitioner lacked the
requisite capacity under Rule 60(c) to petition this Court for
redetermination of the deficiency. 8
In its MOL in response to our OTSC, petitioner agrees that we
should dismiss this case for lack of jurisdiction. However, it argues that
we should do so “not because of lack of capacity to litigate, but because
[r]espondent issued an invalid notice of deficiency.” Petitioner
alternatively argues that we should permit the substitution of Gold
Crown under Rule 63 if we do not invalidate the SNOD. We will address
each argument in turn.
II. Petitioner’s arguments
A. Validity of SNOD
We first address petitioner’s argument that the SNOD is invalid
because it was mailed to the wrong taxpayer. 9 Petitioner asserts that it
is the only taxpayer named in the SNOD despite the reference to Gold
Crown on page one and the entities’ shared mailing address.
Respondent disagrees and asserts that the SNOD “was captioned and
addressed to both Holding [petitioner] and Gold Crown at the address
furnished to [him] for those entities.” According to respondent, the
8 Under Delaware law, “[a]ny action or proceeding, whether civil, criminal or
administrative, pending by or against any corporation which is a party to a merger or
consolidation shall be prosecuted as if such merger or consolidation had not taken
place.” Del. Code Ann. tit. 8, § 261 (2022). We have held that an ongoing examination,
by itself, does not constitute an “administrative” proceeding under that section. See
Malone & Hyde, Inc. v. Commissioner, T.C. Memo. 1992-661, 1992 Tax Ct. Memo
LEXIS 703, at *27–29. That section does not apply here, given that respondent’s
examination did not even begin until three years after petitioner’s merger into
Techtron.
9 It might be argued that we need not consider petitioner’s argument given its
lack of capacity. See Lee Enters., Inc. v. Commissioner¸ T.C. Memo. 1992-629, 1992
Tax Ct. Memo LEXIS 655, at *5 (“We conclude that we must decide the issue of capacity
before considering the validity of the notice of deficiency.”). However, we will do so
here in the interest of completeness.
10
[*10] SNOD includes a determination that Gold Crown is primarily
liable for the deficiency and penalty determined against petitioner. 10
We need not decide whether the SNOD includes a determination
as to Gold Crown, a nonparty in this case. See Levitt v. Commissioner,
97 T.C. 437, 443 (1991) (“Inasmuch as we have concluded that [the
taxpayer] is not a party to this case, any additional or unnecessary
findings would have no binding effect in this or any subsequent
proceeding.”). We address only petitioner’s argument that the SNOD
was issued to the wrong taxpayer. We assume for purposes of our
discussion that petitioner is the only taxpayer named in the SNOD. 11
Generally under section 6213(a), a taxpayer may file a petition for
redetermination of a deficiency within 90 days after the mailing of a
notice of deficiency authorized in section 6212. In the absence of notice
to the Secretary under section 6903 of a fiduciary relationship, the
Commissioner may issue a notice of deficiency to a corporate taxpayer
at its last known address even if the corporate taxpayer has terminated
its existence. See § 6212(b)(1). It is well settled that notices of deficiency
issued to dissolved corporations are valid under such circumstances. 12
10 Primary liability is a personal liability that may be satisfied from any or all
of the obligor’s assets. S. Pac. Transp. Co., 84 T.C. at 374. It is distinct from transferee
liability, which is not a personal liability and only subjects the property or fund
received by the transferee from the transferor to the transferor’s debts. Id. We have
held that “in certain cases . . . it is possible for a person to be primarily liable for a
transferor’s debts and also to be liable as a transferee.” Id.Respondent asserts that Gold Crown is primarily liable for the deficiency in
petitioner’s 2000 income tax by operation of Delaware law and Gold Crown’s
assumption of Techtron’s liabilities in the merger agreement. On the record before us
it does not appear that respondent has sought to impose transferee liability on Gold
Crown.
11This Court has held that a notice of deficiency is valid if it objectively places
a reasonable taxpayer on notice that the Commissioner has determined a deficiency in
tax for a particular year and amount. Dees v. Commissioner, 148 T.C. 1, 6 (2017).
Neither party disputes that the SNOD reflects respondent’s determination that
petitioner has a deficiency in income tax of $1,639,405 for its TYE December 31, 2000.
12 Treasury regulations in effect for the year in issue address situations where,
as here, the common parent of an affiliated group ceases to exist. See Treas. Reg.
§ 1.1502-77A(d) and (e) (generally effective for taxable years beginning before June 28,
2002). Treasury Regulation § 1.1502-77A(d) sets forth rules regarding the effect of a
common parent’s dissolution or termination. Treasury Regulation § 1.1502-77A(e) sets
forth rules regarding the entities to which the Commissioner may send notices of
deficiency “if the corporation that is the common parent of the group ceases to be the
common parent.” Neither party has cited these regulations in response to our OTSC.
We therefore assume they have no bearing on the jurisdictional issue before us.
11
[*11] See, e.g., Padre Island Thunderbird, Inc. v. Commissioner, 72 T.C.
391, 394–95 (1979); Brannon’s of Shawnee, Inc. v. Commissioner, 69 T.C.
999, 1003 (1978); Great Falls Bonding Agency, Inc. v. Commissioner, 63
T.C. 304, 306 (1974).
As explained above, petitioner was no longer in existence when
respondent issued the SNOD. Petitioner does not dispute that
respondent mailed the SNOD to its last known address. Accordingly,
section 6212(b) authorized the issuance of the SNOD to petitioner in the
absence of notice of a fiduciary relationship under section 6903.
Section 6903(a) provides in relevant part: “Upon notice to the
Secretary that any person is acting for another person in a fiduciary
capacity, such fiduciary shall assume the powers, rights, duties, and
privileges of such other person in respect of a tax imposed by this title.”
Section 6903(b) provides that such notice “shall be given in accordance
with regulations prescribed by the Secretary.” Pursuant to section
6903(b), Treasury Regulation § 301.6903-1(b)(2) provides rules for
notices filed on or after April 24, 2002. Under the regulation, such
notices “shall be signed by the fiduciary” and “must state the name and
address of the person for whom the fiduciary is acting, and the nature of
the liability of such person; that is, whether it is a liability for tax, and
if so, the type of tax.” Treas. Reg. § 301.6903-1(b)(2).
Petitioner asserts that Gold Crown’s provision of a Form 2045 to
respondent constitutes notice of a fiduciary relationship under section
6903. According to petitioner, respondent should have addressed the
SNOD to Gold Crown. Respondent’s failure to do so, petitioner argues,
rendered the SNOD invalid. 13
Petitioner’s argument is without merit. Although Gold Crown’s
Form 2045 references the “tax liabilities of [petitioner] for 12-31-2000,”
it does not state that Gold Crown is acting for petitioner in a fiduciary
capacity. Instead it identifies Gold Crown as the “Transferee” of certain
assets from Techtron, petitioner’s initial corporate successor. The terms
“transferee” and “fiduciary” are distinct terms under the Code and
applicable regulations. Compare § 6901(h) (defining “transferee” to
13 Petitioner also faults respondent for incorrectly identifying Form 1040, U.S.
Individual Income Tax Return, as the relevant tax form on the first page of the SNOD.
However, “[m]istakes in a notice [of deficiency] will not invalidate it if there is no
prejudice to the taxpayer.” John C. Hom & Assocs. v. Commissioner, 140 T.C. 210, 213
(2013) (citing Elings v. Commissioner, 324 F.3d 1110 (9th Cir. 2003)). Petitioner has
neither argued nor established that it was prejudiced by the incorrect form number.
12
[*12] include a “donee, heir, legatee, devisee, and distributee”), and
Treas. Reg. § 301.6901-1(b) (expanding the definition of “transferee” to
include a “distributee of an estate of a deceased person, the shareholder
of a dissolved corporation, the assignee or donee of an insolvent person,
the successor of a corporation, a party to a reorganization as defined in
section 368, and all other classes of distributees”), with § 7701(a)(6)
(defining “fiduciary” to mean “a guardian, trustee, executor,
administrator, receiver, conservator, or any person acting in any
fiduciary capacity for any person”). Thus, Gold Crown’s identifying itself
as a “transferee” did not serve as notice to respondent that it was “acting
for another person in a fiduciary capacity.” See § 6903(a); see also
§§ 6901(h), 7701(a)(6); Treas. Reg. § 301.6901-1(b).
Turning to the substance of the Form 2045, Gold Crown agreed—
in exchange for respondent’s not issuing a deficiency notice to and
making an assessment against Techtron—to (1) concede that it was a
transferee of Techtron’s assets and (2) assume Techtron’s tax liability
for the year in issue to the extent of its liability under section 6901. See
Turnbull, Inc. v. Commissioner, 42 T.C. 582, 588 (1964), aff’d, 373 F.2d
91 (5th Cir. 1967). We fail to see how those terms could have put
respondent on notice that Gold Crown was acting for petitioner in a
fiduciary capacity. In fact, by agreeing to assume Techtron’s liability in
exchange for respondent’s not pursuing Techtron directly, Gold Crown
expressed an intention to act for itself. Accordingly, Gold Crown’s
provision of a Form 2045 to respondent did not constitute notice of a
fiduciary relationship under section 6903. We are unaware of any other
documents in the record that could serve as such notice and therefore
hold that respondent properly issued the SNOD to petitioner.
B. Substitution under Rule 63
Petitioner argues that we should allow the substitution of Gold
Crown pursuant to Rule 63(c) and (d) if we do not invalidate the SNOD.
Pursuant to Rule 63(c), where a fiduciary or representative is changed,
the Court may order substitution of the proper successors. Pursuant to
Rule 63(d), the Court may order substitution of “proper parties” for
“other cause.”
We interpret Rule 63 within the limitations placed upon the
Court’s jurisdiction. See Estate of Siegel v. Commissioner, 67 T.C. 1033,
1038–39 (1977); KRR Constr. v. Commissioner, T.C. Memo. 2010-94,
2010 Tax Ct. Memo LEXIS 126, at *5. Accordingly, Rule 63 is applicable
to situations “where a case has been properly filed in this Court by a
13
[*13] proper party petitioner and a change occurs such as the death of
the petitioner.” Estate of Siegel, 67 T.C. at 1038. It is also applicable to
situations “where the petition is filed by a fiduciary and that fiduciary
has died or resigned and a successor fiduciary or representative has been
appointed.” Id. at 1038–39.
Neither of those situations is present. The Petition was signed
and filed on behalf of petitioner by Mr. Agostino. As explained above,
petitioner lacked the requisite capacity to petition this Court. Thus,
because the Petition was not filed on behalf of a proper party or
fiduciary, we cannot substitute Gold Crown under Rule 63. See id.To be sure, “[a] case timely brought shall not be dismissed on the
ground that it is not properly brought on behalf of a party until a
reasonable time has been allowed after objection for ratification by such
party of the bringing of the case.” Rule 60(a); see Holt v. Commissioner,
67 T.C. 829, 832–33 (1977) (allowing taxpayer wife to ratify imperfect
petition signed by her husband); Fletcher Plastics, Inc. v. Commissioner,
64 T.C. 35, 40–41 (1975) (allowing corporate taxpayer to ratify imperfect
petition signed by its attorney); see also Carstenson v. Commissioner, 57
T.C. 542, 546 (1972) (allowing taxpayers to ratify imperfect petition
signed by their agent). The Note to Rule 60(a) states: “Where the
intention is to file a petition on behalf of a party, the scope of this
provision permits correction of errors as to the proper party or his
identity made in a petition otherwise timely and correct.” 60 T.C. 1057,
1094 (1973). With these principles in mind, we consider whether we can
construe the request for substitution as a ratification of the Petition by
Gold Crown. 14
Before we issued our OTSC, respondent had suggested on brief
that the Petition was filed on behalf of Gold Crown under an incorrect
caption. However, in his MOL in response to our OTSC, respondent
declared that suggestion “no longer tenable” given petitioner’s
contention that it alone received the SNOD. Respondent further stated:
14 In its MOL in response to our OTSC, petitioner acknowledges that “Gold
Crown is the successor in interest to [p]etitioner and is responsible for the potential
tax liabilities at issue in this case” under Delaware law. A petition filed by a surviving
corporation for redetermination of a deficiency determined against a merged
corporation is within our jurisdiction where the surviving corporation is primarily
liable for the debts of the merged corporation under applicable state law. See Alaska
Salmon Co. v. Commissioner, 39 B.T.A. 455, 457–58 (1939); see also Popular Libr., Inc.
v. Commissioner, 39 T.C. 1092, 1093 (1963). Neither party disputes that Gold Crown
could have petitioned this Court in lieu of petitioner.
14
[*14] “Gold Crown has not indicated its intention to ratify the [P]etition
before this court, has not established that it authorized anyone to file a
timely petition on its behalf, and has not argued that ratification applies
in this case.”
By Order filed January 21, 2022, we directed petitioner to address
respondent’s argument that Gold Crown has neither ratified nor
expressed an intention to ratify the Petition. On February 22, 2022,
petitioner filed an MOL acknowledging “that Gold Crown has not
ratified the Petition.” Petitioner contends that until the validity of the
SNOD is established, “Gold Crown cannot be expected to subscribe to its
validity by filing an amended petition or ratifying the Petition.”
Petitioner further argues that if this case is not dismissed for lack of a
valid notice of deficiency, “then Gold Crown should be able to amend and
ratify the [P]etition, which it is willing to do so that it can continue to
prosecute Petitioner’s defenses to the notice of deficiency.” Petitioner
asserts that the Court granted similar relief to a corporate taxpayer in
Fletcher Plastics, 64 T.C. at 38.
In Fletcher Plastics, the Court considered whether a corporate
taxpayer could ratify and amend a petition signed by its counsel but
incorrectly captioned in its predecessor’s name. Id. at 36. In response
to the Commissioner’s motion to dismiss for lack of jurisdiction, the
taxpayer filed an amended petition with the correct caption, along with
motions to amend the caption and petition. Id. The Court held that the
taxpayer could properly amend the petition and remain in the case
under Rule 60(a), which “permits the correction of errors as to the proper
party to be made where there was an intent to file a petition on behalf
of a party.” Fletcher Plastics, 64 T.C. at 39. Because the taxpayer
“clearly intended to file a petition to contest the deficiencies determined
in a notice of deficiency sent to it and this petition was signed by its duly
authorized counsel,” it could correct the defective petition. Id. at 38–39.
In further support of its holding, the Court noted that the taxpayer had
“timely ratified” its counsel’s signing of the petition. Id. at 40.
As petitioner acknowledges, Gold Crown has not sought to ratify
the Petition in response to our OTSC. Such inaction distinguishes this
case from Fletcher Plastics, in which the taxpayer promptly sought to
amend its petition after the Commissioner had moved to dismiss for lack
of jurisdiction. In the absence of ratification, we cannot conclude, as we
did in Fletcher Plastics, that Gold Crown “clearly intended to file a
petition to contest the deficiencies determined in a notice of deficiency
sent to it.” See id. at 38; see also Abeles v. Commissioner, 90 T.C. 103,
15
[*15] 108 (1988) (“In the absence of timely ratification, the case will be
dismissed.”). Accordingly, Fletcher Plastics does not authorize
petitioner’s request (presumably on behalf of Gold Crown) for a delayed
ratification.
III. Conclusion
Petitioner lacked the requisite capacity to litigate when its
Petition was filed. No other taxpayer with the capacity to litigate has
ratified the Petition. Accordingly, we are left with no choice but to make
our OTSC absolute and dismiss this case for lack of jurisdiction on the
ground that petitioner lacks the capacity to litigate in this Court. 15 In
reaching our conclusion, we have considered all arguments made, and
to the extent not mentioned above, we conclude them to be moot,
irrelevant, or without merit.
To reflect the foregoing,
An order of dismissal for lack of jurisdiction will be entered.
15 Dismissal of this case for lack of jurisdiction does not constitute a decision
that petitioner is liable for the determined deficiency. See Dillman Bros. Asphalt Co.
v. Commissioner, 64 T.C. 793, 796–97 (1975); Great Falls Bonding Agency, Inc., 63 T.C.
at 307; see also § 7459(d).