DocketNumber: Docket No. 14081-11
Citation Numbers: 140 T.C. 210, 2013 U.S. Tax Ct. LEXIS 12, 140 T.C. No. 11
Judges: COHEN
Filed Date: 5/7/2013
Status: Precedential
Modified Date: 1/13/2023
An appropriate order of dismissal for lack of jurisdiction will be entered.
R moved to dismiss the proceeding for lack of jurisdiction because petitioner's corporate powers were suspended at the time the petition was filed. Petitioner contends that the notice of deficiency is invalid for failing to include the address and telephone number of the local office of the National Taxpayer Advocate and that inclusion of a Web page link is inadequate compliance with
140 T.C. 210">*211 COHEN,
Petitioner was incorporated in California on April 2, 1986. The California Franchise Tax Board suspended the powers, rights, and privileges of petitioner on March 1, 2004. The suspension remained in effect until April 13, 2012.
In a notice of deficiency sent March 16, 2011, respondent determined deficiencies, additions to tax, and penalties as follows:
2005 | $38,520 | $7,704.00 | $9,630.00 |
2006 | 47,072 | 9,414.40 | 11,768.00 |
2007 | 27,354 | 5,470.00 | 6,838.50 |
2008 | 27,886 | 5,577.20 | 6,971.50 |
2009 | 28,251 | 5,650.20 | 7,104.75 |
The notice of deficiency included the following paragraph: The contact person can access your tax information and help you get answers. You also have the right to contact the office of the Taxpayer Advocate. Taxpayer Advocate assistance is not a substitute for established IRS procedures such as the formal appeals process. The Taxpayer Advocate is not able to reverse legally correct tax determinations, nor extend the time fixed by law that you have to file a petition in the U.S. Tax Court. The Taxpayer Advocate can, however, see that a tax matter that may not have been resolved through normal 2013 U.S. Tax Ct. LEXIS 12">*14 channels gets prompt and proper handling. If you want Taxpayer Advocate assistance, please 140 T.C. 210">*212 contact the Taxpayer Advocate for the IRS office that issued this notice of deficiency. Please visit our website at
The petition was filed June 13, 2011. After the case was set for trial, respondent filed a motion to dismiss for lack of jurisdiction pointing out suspension of petitioner's corporate privileges as of the time the petition was filed. Petitioner first objected to the motion on the ground that the suspension had ended. When the motion was heard, however, petitioner argued that the notice of deficiency was invalid for failure to comply with the provision of
Prerequisites to the deficiency jurisdiction of this Court are a valid notice of deficiency and a timely petition.
Petitioner contends that the statutory notice of deficiency is invalid because the inclusion of a Web site address where the address and telephone number of the local office of the 140 T.C. 210">*213 National Taxpayer Advocate may be found does not comply with the applicable statute. The language petitioner relies on is the last sentence 2013 U.S. Tax Ct. LEXIS 12">*16 of (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, or 44, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail. Such notice shall include a notice to the taxpayer of the taxpayer's right to contact a local office of the taxpayer advocate and the location and phone number of the appropriate office.
Although the adequacy of the content of a notice of deficiency has frequently been litigated, courts have held repeatedly that a notice of deficiency is valid if it notifies the taxpayer that a deficiency has been determined and gives the taxpayer the opportunity to petition this Court for redetermination of the proposed deficiency.
In
140 T.C. 210">*214 Here, as in
The Court of Appeals for the Ninth Circuit reached the same result in In other contexts, the Supreme Court and this court have held that, when Congress fails to specify a consequence for an agency's failure to follow mandatory requirements, the failure does not render the agency's action ineffectual. 14 Obedient to this instruction, we conclude that the IRS's failure to include the calculated date does not invalidate the notice. The minor and technical nature of the error and the lack of prejudice in this case further supports our conclusion. Non-prejudicial minor or technical errors in a notice do not invalidate the notice. Major errors, such as those that show the IRS failed to comply with the most fundamental statutory mandate, can invalidate a notice. However, these errors are quite rare. The failure to include the calculated date, when 2013 U.S. Tax Ct. LEXIS 12">*19 notice was dated and instructed Elings that he had ninety days in which to file his petition, was a non-prejudicial minor or technical error. Therefore, the error did not invalidate the notice. [Additional fn. refs. omitted.] 14
The Court of Appeals for the Ninth Circuit specifically agreed with the analysis by the Court of Appeals for the Tenth Circuit in affirming
140 T.C. 210">*215 The rationale of
We have considered the case petitioner cites,
140 T.C. 210">*216 To reflect the foregoing,
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