Jarvis v. Comm'r of Internal Revenue
| Decision Date | 22 April 1982 |
| Docket Number | Docket No. 15462-81. |
| Citation | 78 T.C. 646 |
| Parties | DARWIN D. JARVIS, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Petitioner submitted a Form 1040 for 1976 to the Internal Revenue Service. Thereon he failed to disclose the required information respecting his income and the tax due thereon. A notice of deficiency was issued to petitioner on Mar. 27, 1981, for the taxable years 1976 and 1977. In the petition, the statute of limitations is raised as a plea in bar for the taxable year 1976, and it is alleged that the notice of deficiency is invalid since it fails to cite the statutory law on which the income tax deficiencies are predicated. On Dec. 9, 1981, respondent filed a motion for summary judgment, which had attached thereto an affidavit sworn and subscribed by respondent's trial attorney and a true and authentic copy of the 1976 Form 1040. Petitioner's position is that respondent's motion is invalid because a party's attorney may not be a witness in the case, and he requests a hearing in his domicile. Held, affidavits of counsel representing a party to the case are permitted to be submitted where made on personal knowledge and based on facts that would be admissible in evidence. Held, further, the 1976 Form 1040 submitted did not constitute a “return”; the statute of limitations does not bar assessment of deficiencies for 1976. Sec. 6501(c)(3), I.R.C. 1954. Held, further, sec. 6212(a) does not prescribe the form of a notice of deficiency or its contents; therefore, the notice of deficiency involved herein is not invalid for failure to cite the statutory law on which the income tax deficiencies are based. Held, further, oral hearing on a summary judgment motion is not required where petitioner has notice that such a motion is before the Court and has an opportunity to respond thereto and submit affidavits. Darwin D. Jarvis, pro se.
David W. Johnson, for the respondent.
This case was assigned to Special Trial Judge Francis J. Cantrel for the purpose of considering and ruling on respondent's motion for summary judgment. After a review of the record, we agree with and adopt his opinion which is set forth below.1
OPINION OF THE SPECIAL TRIAL JUDGECANTREL , Special Trial Judge:, Judge:
This case is presently before the Court on respondent's motion for summary judgment filed on December 9, 1981, pursuant to Rule 121, Tax Court Rules of Practice and Procedure.2
Respondent, in his notice of deficiency issued to petitioner on March 27, 1981, determined deficiencies in petitioner's Federal income taxes and additions to the tax for the taxable calendar years 1976 and 1977 as follows:
+--------------------------------------------------------------+
¦ ¦ ¦Additions to tax, 1954 Code3 ¦
+------+-------------+-----------------------------------------¦
¦Year ¦Deficiency4 ¦Sec. 6651(a) ¦Sec. 6653(a) ¦Sec. 6654 ¦
+------+-------------+--------------+--------------+-----------¦
¦ ¦ ¦ ¦ ¦ ¦
+------+-------------+--------------+--------------+-----------¦
¦1976 ¦$6,458.00 ¦$1,614.50 ¦$322.90 ¦$240.76 ¦
+------+-------------+--------------+--------------+-----------¦
¦1977 ¦15,518.57 ¦3,879.64 ¦775.93 ¦552.18 ¦
+--------------------------------------------------------------+
Petitioner's legal address was Route 1, Box 291-AA, Wimberley, Tex., on June 29, 1981, the date he filed his petition herein. The adjustments to petitioner's share of community income,5 as determined by respondent in his deficiency notice, are as follows:
Petitioner and his spouse submitted a Form 1040 to the Internal Revenue Service for the taxable year 1976 signed only by petitioner,6 on which he failed to report the required information respecting his income and the tax due thereon. No Federal income tax return was filed by petitioner for the taxable year ending December 31, 1977.
In his petition, petitioner alleges, in pertinent part, as follows:
FIRST CLAIM
3. The Statute of Limitations has long since run for the year 1976, pursuant to Title 26USC6501.
4. The Notice of Deficiency is defective and unenforceable because the Respondent does not cite which statutory law the Petitioner violated. The Notice of Deficiency has the effect and force of a court judgment without any authority thereon. No where in the Notice of Deficiency does the Respondent cite which income tax law Petitioner owes an income tax. There are many income tax sections in Title 26USC. The only laws cited in the said Notice of Deficiency are penalty laws, Sections 6651(a), 6653(a), and 6654 of Title 26, USC. There cannot be a penalty without violating some law. Since Respondent does not cite which law Petitioner violated then the Notice of Deficiency must be determined to be defective and invalid by this Tax Court.
5. Petitioner is not a person under some of the income tax laws in Title 26, USC, and since Petitioner does not know under which income tax law the tax is due Petitioner is deprived of due process of law and equal protection of the laws which once again shows the Notice of Deficiency is defective and invalid.
6. Petitioner's constitutional rights, Fifth Amendment to the U.S. Constitution, is [sic] violated by the Notice of Deficiency because the Respondent has no authority to issue a deficiency of tax against the Petitioner except according to cited law on a Notice of Deficiency. This the Respondent has not done—-causing the Notice of Deficiency to be defective and invalid.
As recited earlier, the petition was filed on June 29, 1981. Thereafter, on August 10, 1981, respondent filed his answer, in which he denied the allegations of paragraphs 3, 4, 5, and 6 of the petition and further asserted as a defense to the statute of limitations claim for the year 1976, that petitioner did not file an income tax return for the taxable year 1976 and, thus, the tax determined to be due for that year may be assessed or collected at any time under section 6501(c)(3). No reply has been filed. Hence, the pleadings are closed. See Rules 34, 36, 37, and 121.
On December 9, 1981, respondent filed his motion now pending before the Court asserting that the only factual issue raised in the petition is the statute of limitations issue, but since the Form 1040 petitioner submitted to the Internal Revenue Service does not disclose his income or tax liability, it does not constitute a Federal income tax return and, therefore, the statute of limitations has not run. Attached to respondent's motion is an affidavit of David W. Johnson, respondent's trial attorney. The affidavit, subscribed and sworn to under oath, states, in relevant portion, as follows:
1. I am employed as an attorney in the Office of District Counsel, Houston, Texas.
2. In connection with my employment, the above-captioned case [this case] involving taxable years 1976 and 1977 was assigned to me for trial.
3. In connection with my trial preparation * * *, I have examined the administrative file in said case [this case].
4. The copy of the Form 1040 attached to Respondent's Motion for Summary Judgment in this case as Respondent's Exhibit A is a true and complete copy of the original Form 1040 in the administrative file.
5. Upon review of the administrative file, the pleadings, and the Form 1040 for 1976, Respondent's Exhibit A, it is my belief there is no genuine issue as to any material fact left for trial as supported by the record.
In his opposition to respondent's motion, filed on January 11, 1982, petitioner contends that a “party's attorney may not be a witness” in the case and, therefore, respondent's motion is defective and the affidavit is hearsay. Petitioner further asserts that respondent has failed to attach materials to his affidavit which prove the correctness of the notice of deficiency.7 Finally, petitioner has moved for oral arguments in his domicile.
Respondent in his response to petitioner's opposition, filed on February 5, 1982, argues under Rule 34(b) that any issue not raised in the assignment of errors shall be deemed conceded and, thus, has limited his argument to the statute of limitations issue. He suggests further that petitioner's request that a hearing be held in his domicile is solely for purposes of delay.
Since petitioner has raised a question of the validity of respondent's motion, we will discuss that matter first. Petitioner maintains that respondent's motion is defective because it is supported by an affidavit of respondent's trial attorney. Although there is no provision in our rules approving or prohibiting the filing of an affidavit by counsel for a party in the case, Rule 121(d), states generally:
(d) Form of Affidavits; Further Testimony; Defense Required: Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such...
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