Rosa v. Commissioner, Docket No. 22753-95.
| Decision Date | 16 July 1996 |
| Docket Number | Docket No. 22753-95. |
| Citation | 72 T.C.M. 123 |
| Parties | B. Joe Rosa, Jr., an Accountancy Corporation v. Commissioner. |
| Court | U.S. Tax Court |
B. Joe Rosa, Jr., pro se. Peter Reilly and Thomas M. Rohall, for the respondent.
This case was assigned to Chief Special Trial Judge Peter J. Panuthos pursuant to the provisions of section 7443A(b)(4) and Rules 180, 181, and 183.1 The Court agrees with and adopts the opinion of the Special Trial Judge, which is set forth below.
PANUTHOS, Chief Special Trial Judge:
This matter is before the Court on respondent's Motion to Dismiss For Lack of Jurisdiction. The issue for decision is whether petitioner has the capacity to file a petition for redetermination with this Court.
On May 10, 1995, respondent issued three separate notices of deficiency to B. Joe Rosa, Jr., An Accountancy Corporation (petitioner), determining deficiencies in, additions to, and penalties in respect of its Federal income taxes as follows:
Additions to Tax and Penalties
-------------------------------------------------------
Sec. Sec. Sec. Sec
Tax Year Ended Deficiency 6653(b)(1)(A) 6653(b)(1)(B) 6653(b)(1) 6663(a)
6/30/87 ..................... $30,092 $23,176 50% of the -- --
interest due on
the deficiency
12/31/87 .................... 9,163 -- -- $ 6,872 --
12/31/88 .................... 30,414 -- -- 22,811 --
12/31/89 .................... 37,630 -- -- -- $28,223
12/31/90 .................... 41,595 -- -- -- 31,196
12/31/91 .................... 38,502 -- -- -- 28,881
On November 3, 1995, B. Joe Rosa, Jr., filed a petition on behalf of petitioner contesting the notices of deficiency described above. The first paragraph of the petition states that petitioner is a "defunct Professional Corporation".
In response to the petition, respondent filed a Motion to Dismiss for Lack of Jurisdiction asserting that the petition should be dismissed on the ground that the petition was not filed within the 90-day period prescribed in section 6213(a). Petitioner filed an objection to respondent's motion to dismiss asserting that the petition was timely filed pursuant to section 6213(f), which suspends the period for filing a petition with this Court for the period during which a taxpayer/debtor is prohibited by reason of bankruptcy from filing a petition and for 60 days thereafter. Petitioner's objection includes a statement that petitioner was dissolved under California State law prior to filing for bankruptcy. Respondent filed a reply to petitioner's objection asserting that: (1) Petitioner did not file a bankruptcy petition, and, thus, is not entitled to rely on section 6213(f); and (2) petitioner's purported dissolution under California State law would not preclude petitioner from filing a petition with this Court.
A hearing was conducted in this case in Washington, D.C. Counsel for respondent appeared at the hearing and presented a new theory in support of respondent's motion to dismiss. In particular, respondent offered evidence indicating that, rather than being dissolved, petitioner's corporate charter was suspended by the State of California as of May 3, 1993, for failure to pay State franchise taxes. Relying on Cal. Rev. & Tax Code sec. 23301(b) (West 1992), and Condo v. Commissioner [Dec. 34,715], 69 T.C. 149 (1977), respondent now contends that this case should be dismissed on the ground that petitioner lacks the requisite capacity to file a petition with this Court. See Rule 60(c).
The evidence submitted by respondent at the hearing regarding the suspension of petitioner's corporate powers was characterized by counsel for respondent as a computer "printout of Westlaw". The document in question includes the following statement: THIS DATA IS FOR INFORMATIONAL PURPOSES ONLY. CERTIFICATION CAN ONLY BE OBTAINED THROUGH THE SACRAMENTO OFFICE OF THE CALIFORNIA SECRETARY OF STATE. Following the hearing, we directed respondent to file a report with the Court attaching thereto a certification from the California Secretary of State (as described in Cal. Rev. & Tax Code sec. 23302(c) (West 1992)) establishing the date of petitioner's corporate suspension under California State law. Respondent complied with our order and filed a report with the Court with attached exhibits. Exhibit A to respondent's report is a Certificate of Filing and Suspension issued by the California Secretary of State on May 29, 1996, stating that petitioner's corporate powers, rights, and privileges were suspended on May 3, 1993. Exhibit B to respondent's report is a bankruptcy discharge order issued by the United States Bankruptcy Court for the Eastern District of California on June 17, 1995, in regard to the bankruptcy petition of B. Joe Rosa, Jr., and Osanna M. Rosa. Respondent offered the latter exhibit in support of her earlier contention that petitioner did not file a bankruptcy petition, and, therefore, petitioner cannot rely on section 6213(f) as a basis for its assertion that its petition was timely filed.
Although the record tends to show that petitioner did not file a bankruptcy petition,2 and that the petition was not timely filed under section 6213(a), we will decide respondent's motion to dismiss by focusing on the question of petitioner's capacity to invoke this Court's jurisdiction.
Rule 60(c) states that the capacity of a corporation to engage in litigation in this Court shall be determined by the law under which the corporation was organized. Brannon's of Shawnee, Inc. v. Commissioner [Dec. 35,500], 71 T.C. 108, 111 (1978); Condo v. Commissioner, supra at 151; Great Falls Bonding Agency, Inc. v. Commissioner [Dec. 32,867], 63 T.C. 304, 305 (1974). Because petitioner was organized in the State of California, we look to the law of that State to determine whether petitioner possesses the requisite capacity to invoke this Court's jurisdiction.
Cal. Rev. & Tax Code sec. 23301(b) (West 1992) provides (with exceptions not applicable here) that the corporate powers, rights, and privileges of a domestic taxpayer may be...
To continue reading
Request your trial