DocketNumber: Docket No. 40372-86.
Citation Numbers: 54 T.C.M. 1064, 1987 Tax Ct. Memo LEXIS 562, 1987 T.C. Memo. 564
Filed Date: 11/10/1987
Status: Non-Precedential
Modified Date: 11/20/2020
A petition was filed with this Court subsequent to the appointment of a receiver in an action commenced by the Securities and Exchange Commission against P (husband) in the United States District Court. Some, but not all, of P's (husband) assets were turned over to the receiver.
MEMORANDUM OPINION
PANUTHOS,
Respondent issued a notice of deficiency on July 15, 1986, determining deficiencies and additions to tax against petitioners as follows:
Additions to Tax | |||
Year | Deficiency 2 | Section 6653(b)(1) | Section 6653(b)(2) |
1980 | $ 91,143.76 | $ 45,571.88 | --- |
1981 | $ 115,358.21 | $ 57,679.11 | --- |
1982 | $ 246,953.87 | $ 123,476.94 | 50% of interest |
due on $ 246,953.87 |
Respondent further issued a notice of deficiency on July 16, 1986, determining deficiencies and additions to tax as follows:
Additions to Tax | |||
Year | Deficiency 3 | Section 6653(b)(1) | Section 6653(b)(2) |
1983 | $ 946,165.05 | $ 473,082.53 | 50% of interest |
1984 | $ 1,071,676.83 | $ 535,832.42 | due on deficiency |
1985 | $ 3,574,241.11 | $ 1,787,120.56 | for each year |
The July 16, 1986 notice of deficiency also indicated that the deficiencies and additions with respect to the 1983 through 1985 1987 Tax Ct. Memo LEXIS 562">*564 taxable years were the subject of a jeopardy assessment.
A timely petition was filed with respect to both notices of deficiency. At the time of filing the petitioner herein, petitioners resided at New York, New York.
The facts are not in dispute. On June 5, 1986, the United States District Court for the Southern District of New York, in
Upon motion brought by petitioner, the United States District Court entered an Order in September 1987 that said court would decide all tax claims that had been determined against petitioner by the Internal Revenue Service. 6
In his motion, respondent argues that the case should be dismissed for lack of jurisdiction as to petitioner under section 6871(c)(2), which provides that no petition for redetermination 1987 Tax Ct. Memo LEXIS 562">*566 of a deficiency shall be filed with the Tax Court after the appointment of a receiver. While petitioner concurs that his tax claims should be resolved in the District Court proceedings, 7 petitioner argues that it is not entirely clear whether section 6871(c)(2) divests the Tax Court of jurisdiction where only a portion of the taxpayer's assets are under the control of a receiver. 8 Both parties concur that this Court has jurisdiction over petitioner Laurie Levine since she is not a party to the receivership proceeding. See
Section 6871(a) provides that upon the appointment of a receiver for the taxpayer in any receivership proceeding any deficiency may be immediately assessed. Section 6871(c) provides that (1) claims for a deficiency may be presented to the court before which the receivership proceeding is pending, despite the pendancy of the Tax Court 1987 Tax Ct. Memo LEXIS 562">*567 proceedings, but (2) "in the case of a receivership proceeding, no petition for any such redetermination shall be filed with the Tax Court after the appointment of the receiver." Thus, the Tax Court is without jurisdiction where a petition is filed subsequent to the appointment of a receiver.
The language of the statute is clear that it is the
We note that section 301.6871(a)-2, Proced. and Admin. Regs., presumes that there may be situations where some, but not all, of a taxpayer's assets are under the control of a court. 101987 Tax Ct. Memo LEXIS 562">*569 This is consistent with
For the reasons set forth herein, respondent's Motion to Dismiss for Lack of Jurisdiction as to Petitioner Dennis B. Levine and to Change Caption will be granted.
1. This case was heard pursuant to section 7456 (redesignated as section 7443A by the Tax Reform Act of 1986, Pub. L. 99-514, section 1556, 100 Stat. 2755) and Rule 180. All section references are to the Internal Revenue Code of 1954, as amended, and all Rule references are to the Tax Court Rules of Practice and Procedure.
2. The notice of deficiency limited the liability of petitioner Laurie Levine to the underlying deficiencies and thus the additions to tax were not determined against her. ↩
3. See note 2.↩
4. The document is entitled "Consent and Undertakings of Dennis B. Levine, Diamond Holdings, S.A. and International Gold, Inc." The document is captioned in the same District Court action and is executed by Dennis B. Levine in his individual capacity and in his capacity as beneficial owner of Diamond Holdings, S.A. and International Gold, Inc. ↩
5. Such enumerated assets included, among other things, petitioner's cooperative apartment, including personal property and furnishings, and his automobile. ↩
6.
7. It was petitioner who moved the District Court to issue an order providing that said court would consider the Federal Income tax liabilities. ↩
8. As previously discussed, certain assets were exempted from the receivership proceeding.↩
9. See also
10. Section 301.6871(a)-2, Proced. and Admin. Regs., provides as follows:
Collection of assessed taxes in bankruptcy and receivership proceedings. - (a) During a proceeding under the Bankruptcy Act [11 U.S.C. chs. 1-14] or a receivership proceeding in either a Federal or State court, generally the assets of the taxpayer are under the control of the court in which such proceeding is pending, and the collection of taxes cannot be made by levying upon such assets.