Dorl v. Comm'r of Internal Revenue

• Decision Date: 06 March 1972
• Docket Number: Docket No. 6392-71.
• Citation: 57 T.C. 720
• Parties: EMMA R. DORL, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

57 T.C. 720

EMMA R. DORL, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 6392-71.

United States Tax Court

Filed March 6, 1972.

Emma R. Dorl, pro se.

Frank J. Smith, for the respondent

On June 17, 1971, petitioner was sent a notice of income tax deficiency in the amount of $291.54 for the year 1969. This amount was decreased to $182.84 in a subsequent report mailed to petitioner on Sep. 3, 1971. Petitioner filed a petition with the Tax Court on Sept. 13, 1971, for a redetermination of the deficiency and requested a jury trial. After obtaining an extension of time for answering the petition, respondent filed his answer. On December 15, 1971, petitioner filed a motion to remove the case to the U.S. District Court for the District of New Jersey (Newark). Held, that the motion for removal of the case to the U.S. District Court must be denied. Held, further, that the petitioner is not entitled to a jury trial in the United States Tax Court.

OPINION

DAWSON, Judge:

On December 15, 1971, the petitioner filed a ‘Motion for Removal of Case to U.S. District Court’ and a memorandum of points and authorities. The motion was served upon respondent and set for hearing at Newark, N.J., on February 7, 1972. On that date the arguments of both parties were heard.

The pertinent facts regarding the motion as as follows: Income tax of $116.32, reported but unpaid on petitioner's Federal income tax return for 1969, was paid in full by check on April 10, 1971, after the petitioner received a letter dated April 8, 1971, from a revenue officer concerning the the delinquency in payment. On June 17, 1971, the respondent sent a notice of deficiency to petitioner which determined an income tax deficiency of $291.54 for the year 1969. Such amount was decreased by a subsequent report mailed to the petitioner on September 3, 1971. The notice of deficiency is based upon the disallowance of part of a claimed foreign tax credit and part of a retirement income credit, both for lack of substantiation. On September 13, 1971, the petitioner filed her petition in this Court requesting a redetermination of the deficiency and demanding a trial by jury. Respondent filed his answer to the petition on December 15, 1971, after having obtained an extension of time. Also on December 15, 1971, petitioner filed with the Court her motion to remove this case to the U.S. District Court for the District of New Jersey (Newark).

Where, as here, a taxpayer receives a notice of an income tax deficiency and files a timely petition with the United States Tax Court, he gives the Tax Court exclusive jurisdiction. See sec. 6512(a), I.R.C. 1954.¹ Thereafter, a refund suit in the U.S. District Court for the same tax and the same taxable year is barred. The mere filing of the petition in the Tax Court is enough to deprive a U.S. District Court of jurisdiction for years as to which the petition was filed. See United States v. Wolf, 238 F.2d 447 (C.A. 9, 1956); Brooks v. Driscoll, 114 F.2d 426 (C.A. 1, 1932); Avery v. United States, 247 F.Supp. 611 (D.N.Y. 1965); McDonald v. United States (M.D. Tenn. 1966, 18 A.F.T.R.2d 5215, 66-2 U.S.T.C.par. 9516); Roberts v. Commissioner (D.S.C. 1971, 28 A.F.T.R.2d 71-5562, 71-2 U.S.T.C.par. 9625). This is the rule even where the Tax Court petition was dismissed, Fiorentino v. United States, 226 F.2d 619 (C.A. 3, 1955), or the issue sought to be litigated was not presented in the Tax Court, Bear Mill Mfg. Co. v. United States, 93 F.Supp. 988 (S.D.N.Y. 1950). It is significant that it is the taxpayer's action in filing a valid petition in the Tax Court, under circumstances which give the Tax Court jurisdiction, and not any action taken by the Court, that bars a subsequent refund suit in the U.S. District Court. Elbert v. Johnson, 164 F.2d 421, 424 (C.A. 2, 1947); Holzer v. United States, 250 F.Supp. 875 (E.D. Wis. 1966), affd. 367 F.2d 822 (C.A. 7, 1966).²

It is now a settled principle that a taxpayer may not unilaterally oust the Tax Court from jurisdiction which, once invoked, remains unimpaired until it decides the controversy. See Main-Hammond Land Trust, 17 T.C. 942, 956 (1951), affd. 200 F.2d 308 (C.A. 6, 1952); United States v. Shepard's Estate, 196 F.Supp. 281, 284 (N.D. N.Y. 1961), affirmed as modified on other issues 319 F.2d 699 (C.A. 2, 1963); and Nash Miami Motors, Inc. v. Commissioner, 358 F.2d 636 (C.A. 5, 1966), affirming a Memorandum Opinion of this Court.

Accordingly, we conclude that petitioner's motion to remove this case to the U.S. District Court must be denied.³

There is no merit to petitioner's request for a jury trial in the Tax Court. See Wickwire v. Reinecke, 275 U.S. 101, 105 (1927); Phillips v. Commissioner, 283 U.S. 589, 599, fn. 9 (1931); and Olshausen v. Commissioner, 273 F.2d 23, 26-27 (C.A. 9, 1959), affirming in part a Memorandum Opinion of this Court. The provisions of the Internal Revenue Code of 1954, as amended by the Tax Reform Act of 1969, concerning trials before the United States Tax Court, remain unchanged. Consequently, we hold that the petitioner is not entitled to a jury trial in this Court.

An appropriate order will be entered.

1. SEC. 6512. LIMITATIONS IN CASE OF PETITION TO TAX COURT.(a) EFFECT OF PETITION TO TAX COURT.— If the Secretary or his delegate has mailed to the taxpayer a notice of deficiency under section 6212(a) (relating to deficiencies of income, estate, gift, and chapter 42 taxes) and if the taxpayer files a petition with the Tax Court within the time prescribed in section 6213(a), no credit or refund of income tax for the same taxable year, of gift tax for the same calendar year or calendar quarter, of estate tax in respect of the...