O'Neil v. Comm'r of Internal Revenue, Docket No. 5594-75.
| Decision Date | 15 April 1976 |
| Docket Number | Docket No. 5594-75. |
| Citation | 66 T.C. 105 |
| Parties | RICHARD A. O'NEIL, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Rules 40 and 41, Tax Court Rules of Practice and Procedure.— The Commissioner determined deficiencies in P's tax for the years 1968-71 and sent P one notice of deficiency. P timely filed a petition with this Court attaching such notice but contesting only the Commissioner's determinations for 1968-70. After the 90-day period had expired, P filed an amended petition contesting the Commissioner's determination for 1971. Held, since P's timely petition did not clearly indicate that he was contesting the determination for 1971, the Commissioner's determination for that year is not at issue. John D. Dobroski, for the petitioner.
Rodney J. Bartlett, for the respondent.
On January 23, 1976, the Commissioner made a timely motion to dismiss this case as it relates to the taxable year 1971 for lack of jurisdiction on the ground that such year was not raised within the statutory 90-day period and to strike all references to the taxable year 1971 from the amended petition. See Sec. 6213, I.R.C. 1954;1 Rules 13(b), 40, and 52, Tax Court Rules of Practice and Procedure.2 A hearing was held on such motion.
On April 15, 1975, the notice of deficiency in this case was dated and sent to the petitioner. In such notice, the Commissioner determined deficiencies in and additions to tax for fraud for each of the taxable years 1968 through 1971. On June 23, 1975, the petitioner filed a petition on a form provided by the Clerk of the Court. Such petition provided in pertinent part:
1. Petitioner(s) request(s) the Court to redetermine the tax deficiency(ies) for the year(s) 1968-1970, as set forth in the notice of deficiency dated April. 15, 1975 * * *
3. Petitioner(s) make(s) the following claims as to his tax liability:
+------------------------------------------------------------+
¦ ¦Amount of deficiency ¦Amount of addition to ¦
+-------------+----------------------+-----------------------¦
¦Year ¦disputed ¦tax, if any, disputed ¦
+-------------+----------------------+-----------------------¦
¦ ¦ ¦ ¦
+-------------+----------------------+-----------------------¦
¦Dec. 31, 1968¦$2,047.59 ¦ ¦
+-------------+----------------------+-----------------------¦
¦Dec. 31, 1969¦6,192.14 ¦ ¦
+-------------+----------------------+-----------------------¦
¦Dec. 31, 1970¦9,680.40 ¦ ¦
+------------------------------------------------------------+
4. Set forth those adjustments, i.e. changes, in the notice of deficiency with which you disagree and why you disagree.
Petitioner pleaded guilty to 1971 tax yr. deficiency in October of 1974 in Federal District Ct, Eastern District of Wis. Judge Reynolds presiding. Petitioner pleaded guilty to the Dec. 31, 1971 tax year deficiency on the condition that deficiencies for tax years 1968, 1969, and 1970 would be dropped. The Notice of Deficiency dated Apr. 15, 1975 did not reflect the agreed upon dismissal of the 1968, 1969, and 1970 tax deficiencies. Petitioner (sic) requests that the agreement to drop the deficiencies for 1968, 1969 and 1970 tax years be honored.
Petitioner also wishes to contest the value of the stated deficiencies for tax years 1968, 1969 and 1970 on the ground that he dtd not owe that much tax.
On August 22, 1975, the Commissioner filed his answer and simultaneously moved to have the unpetitioned adjustments set forth in the notice of deficiency deemed conceded. The unpetitioned adjustments were the additions to tax for the years 1968 through 1970. The Commissioner also stated in such motion that the Court was without jurisdiction over the year 1971 since no issues for such year were raised in the petition.
On November 7, 1975, an order was entered allowing the petitioner to file an amended petition and denying the Commissioner's motion ‘without prejudice to the right to renew same at a later date for good cause shown.’ On November 24, 1975, the petitioner filed an amended petition in which he seeks a redetermination of the deficiencies in and additions to tax for the years 1968 through 1971. The Commissioner's present motion is in response to the amended petition.
The issue to be decided is whether we have jurisdiction over the taxable year 1971 either as a result of the timely filing of the original petition in this case or as a result of the amended petition. The notice of deficiency in this case was mailed to the petitioner in the United States, and section 6213(a) provides that a petition to this Court may be filed within 90 days after the notice of deficiency was mailed to a taxpayer in the United States. If a petition for 1971 was not timely filed within such 90-day period, we are without jurisdiction over the deficiency in and addition to tax determined in the notice of deficiency for such year and must dismiss the amended petition insofar as it attempts to raise issues for such year. See C. Frederick Brave, Inc., 65 T.C. 1001 (1976); Estate of Frank M. Archer, 47 B.T.A. 228 (1942); I. Frank Sons Co., 22 B.T.A. 40 (1931); John R. Thompson Co., 10 B.T.A. 57 (1928).
It has been the consistent policy of this Court to be liberal in treating as petitions all documents filed by taxpayers within the 90-day period if they were intended as petitions. See, e.g., Michael A. Castaldo, 63 T.C. 285, 287 (1974); George Joannou, 33 T.C. 868 (1960). If such documents do not comply with the form and content requirements for petitions as set forth in our Rules, we are liberal in allowing the taxpayer to file an amended petition to correct the technical defects. See, e.g., Fletcher Plastics, Inc., 64 T.C. 35 (1975); John L. Brooks, 63 T.C. 709 (1975); Norris E. Carstenson, 57 T.C. 542 (1972); Anita R. Eaton, 49 T.C. 227 (1967). However, to be treated as a petition, the document must contain some objective indication that the petitioner contests the deficiency determined by the Commissioner against him. See Estate of Charles M. DuPuy, 48 T.C. 918 (1967); George Joannou, supra.
The original petition in this case clearly disputed the Commissioner's determination of deficiencies for the years 1968 through 1970. The Commissioner's determination of deficiencies and additions to tax for the years 1968, 1969, 1970, and 1971 was attached to the petition, but the petition contained no allegation of error in any manner for the year 1971. There is nothing in the petition indicating that the petitioner has contesting any issue for such year. In such circumstances, we acquired no jurisdiction over the year 1971 as a result of the...
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