Nappi v. Comm'r of Internal Revenue
| Decision Date | 11 May 1972 |
| Docket Number | Docket No. 7259-71. |
| Parties | VINCENT O. NAPPI, JR., PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Vincent O. Nappi, Jr., pro se.
H. Lloyd Nearing, for the respondent.
Respondent mailed the petitioner a statutory notice of deficiency in Federal income tax for the year 1969 on May 28, 1971. After receiving the notice of deficiency, the petitioner, through his representative, provided additional information to an Internal Revenue Service auditor which resulted in adjustments being made to the determined deficiency. On Sept. 24, 1971, the petitioner was notified of the changes. On Oct. 22, 1971, which was 147 days after the notice of deficiency was mailed, a petition was sent by certified mail to the Court. Held: (1) The petition was not filed within the time prescribed by secs. 6213(a) and 7502, I.R.C. 1954, and therefore respondent's motion to dismiss for lack of jurisdiction will be granted; (2) the audit changes made after the notice of deficiency was mailed did not extend the 90-day period for filing a petition with the Court; and (3) since the United States Tax Court is a court of record established under article I of the Constitution of the United States, the provisions of the Administrative Procedure Ace are not applicable to Tax Court procedures or jurisdiction.
This case is before us on respondent's motion to dismiss for lack of jurisdiction.
Petitioner's legal residence was Covina, Calif., when he filed his petition in this proceeding.
A statutory notice of deficiency was mailed by respondent to the petitioner on May 28, 1971, determining an income tax deficiency of $889.96 for the year 1969. After he received the notice of deficiency, the petitioner, through his representative, contacted the Office Audit Group of the Internal Revenue Service in Los Angeles and furnished the auditor with additional information. On September 24, 1971, the petitioner was sent a Report of Individual Income Tax Audit Changes (Form 1902-E) showing a deficiency of $807.27, and a letter which reads, in part, as follows:
Enclosed are two copies of a report supplementing the statutory notice of deficiency we sent you earlier. This report explains changes we made to our proposed adjustments.
If you accept our findings, please sign and return the agreement form. Or if no agreement form is enclosed, sign and return the Consent to Findings on a copy of the report.
If you do not accept, you may, within the period stated in the statutory notice, petition the Tax Court for a redetermination of your tax liability.
This correspondence and consideration of your case has not extended the period in which you may file a petition with the Tax Court. If no petition is filed within the allotted time, we will assess the tax and bill you.
On October 22, 1971, the petitioner sent by certified mail his petition contesting the determined deficiency.
On December 10, 1971, respondent filed a motion to dismiss the case for lack of jurisdiction on the ground that the petition was not filed within the time prescribed by sections 6213(a) and 7502, I.R.C. 1954. On February 22, 1972, the petitioner filed a memorandum in opposition to respondent's motion. A hearing on the motion was held in Los Angeles on April 17, 1972.
Section 6213(a) provides that a petition must be filed with the Tax Court within 90 days after the statutory notice of deficiency is mailed to the taxpayer. The 90-day filing requirement is jurisdictional and this Court does not acquire jurisdiction of the case unless the petition is timely filed. Estate of Frank Everest Moffat, 46 T.C. 499 (1966); Jacob L. Rappaport, 55 T.C. 709 (1971), affd. 456 F.2d 1335 (C.A. 2, 1972). Section 7502 provides the circumstances under which timely mailing, as against timely receipt, will be considered as satisfying the requirements for timely filing.
Here the petitioner did not file his petition with the Court until October 22, 1971, which was 147 days after the notice of deficiency was mailed. The subsequent audit changes by respondent did not extend the 90-day period or start the running of a new 90-day period from September 24, 1971. The 90-day period for filing a petition with this Court had already expired when the notice of audit changes was sent to the petitioner. See Joseph J. Morrison, 11 T.C. 696 (1948), affirmed on another issue 177 F.2d 251 (C.A. 2, 1949), which holds that a letter of a revenue agent reallocating partnership income was merely...
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Ewing v. Commissioner of Internal Revenue, Docket No. 1940-01 (U.S.T.C. 1/28/2004), Docket No. 1940-01.
...may redetermine the taxpayer's tax liability. O'Dwyer v. Commissioner, 266 F.2d 575, 580 (4th Cir. 1959), affg. 28 T.C. 698 (1957); Nappi v. Commissioner, Page 10 T.C. 282, 284 (1972).6 In contrast, respondent contends that the APA applies to our proceedings under section 6015(f). As discus......
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Ewing v. Comm'r of Internal Revenue , No. 1940–01.
...tax liability. O'Dwyer v. Commissioner, 266 F.2d 575, 580 (4th Cir.1959), affg. 28 T.C. 698, 1957 WL 1088 (1957); Nappi v. Commissioner, 58 T.C. 282, 284, 1972 WL 2538 (1972). 6 In contrast, respondent contends that the APA applies to our proceedings under section 6015(f). As discussed next......
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C.I.R. v. Neal
...adversarial and did not permit the introduction of new evidence. Dubroff, supra, at 39. 23. This same defect infects Nappi v. Comm'r, 58 T.C. 282, 284, 1972 WL 2538 (1972), in which the Tax Court held that the APA categorically did not apply to the Tax Court because it was an Article I cour......
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Robinette v. Commissioner of Internal Revenue, 123 T.C. No. 5 (U.S.T.C. 7/20/2004)
...580 (4th Cir. 1959), affg. 28 T.C. 698 (1957). The "Tax Court is not subject to the Administrative Procedure Act." Id. In Nappi v. Commissioner, 58 T.C. 282, 284 (1972), we reasoned that the APA provisions "apply to an `agency' of the Government of the United States, but specifically exclud......