Schlosser v. Comm'r of Internal Revenue
| Citation | 94 T.C. No. 51,94 T.C. 816 |
| Decision Date | 11 June 1990 |
| Docket Number | Docket No. 29514-89. |
| Parties | GABRIEL SCHLOSSER AND MARY ELLEN SCHLOSSER, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent |
| Court | United States Tax Court |
OPINION TEXT STARTS HERE
Ps moved to restrain the collection of taxes, alleging that the IRS was demanding payment of deficiencies for 1983, 1984, and 1985 prior to a final decision of the Tax Court. R moved to dismiss for lack of jurisdiction as to P-husband based on the automatic stay provisions of the Bankruptcy Code.
HELD, R's motion to dismiss for lack of jurisdiction as to P-husband will be granted. 11 U.S.C. sec. 362(a)(8). HELD FURTHER, because the collection efforts in question relate in part to overstated withheld income taxes summarily assessed under secs. 6201(a)(3) and 6213(b)(1), I.R.C., and in part to a taxable year not before the Court, Ps' motion to restrain collection will be denied. Sec. 6213(a), I.R.C. Gabriel Schlosser, pro se.
Steve R. Johnson and Julius Gonzalez, for the respondent.
This case is before the Court on petitioners' motion to restrain the collection of taxes and respondent's motion to dismiss for lack of jurisdiction as to petitioner Gabriel Schlosser.
By statutory notice dated October 11, 1989 (deficiency notice), respondent determined deficiencies in and additions to petitioners' Federal income taxes for the years 1983, 1984, and 1985 as follows:
+--------------------------------------------------------------------+
¦ ¦ ¦ ¦Additions to tax ¦ ¦
+------+------------+-----------------+------------------+-----------¦
¦Year ¦Deficiency ¦Sec. 6653(b)(1) ¦Sec. 6653(b)(2) ¦Sec. 6661 ¦
+------+------------+-----------------+------------------+-----------¦
¦1983 ¦$36,117 ¦$18,058 ¦1 ¦$9,029 ¦
+------+------------+-----------------+------------------+-----------¦
¦1984 ¦8,130 ¦4,065 ¦1 ¦2,033 ¦
+------+------------+-----------------+------------------+-----------¦
¦1985 ¦22,072 ¦11,036 ¦1 ¦5,518 ¦
+------+------------+-----------------+------------------+-----------¦
¦ ¦ ¦ ¦ ¦ ¦
+--------------------------------------------------------------------+
FN1 50 percent of the interest due on the deficiency.
At the time petitioners filed their petition with this Court, on December 14, 1989, husband Gabriel Schlosser was incarcerated in a Florida correctional institution and wife Mary Ellen Schlosser resided in Sarasota, Florida. References hereinafter to petitioner in the singular are to Gabriel Schlosser.
Included with petitioners' filed petition was a ‘Motion To Stop Collection Action,‘ which states that an Internal Revenue Service (Service) employee named K. T. McNally (McNally) had been using threatening letters and telephone calls to demand payment of the ‘tax assessment‘ or ‘tax deficiency‘ relating to 1983, 1984, and 1985. According to this motion (hereinafter referred to as a motion to restrain collection), McNally's collection activities also included in-person demands for money from petitioner's wife and contacts with her parents. The legal ground for petitioners' motion was described as follows:
The petitioner states this court has jurisdiction under 26 U.S.C. 6212 and 6213(a). Petitioners received notice of deficiency on Oct. 11, 1989 and have 90 days to petition the Tax Court of the United States for a redetermination. No collection action may be maintained against the taxpayer until the notice has been mailed and the ninety-day period has run, and, if a petition has been filed with the Tax Court, until the judgment of that court has become final.
On January 3, 1990, this Court notified respondent of petitioners' motion and directed respondent to file any notice of objection on or before January 23, 1990. The body of respondent's timely filed notice of objection reads in its entirety: ‘Respondent hereby objects to petitioner's Motion to Stop Collection Action filed on December 14, 1989 as the Tax Court is not the proper forum for the filing of said motion.‘ By order of this Court dated January 26, 1990, respondent was directed to file a supplemental notice of objection, on or before February 12, 1990, setting forth the specific basis for his objection to petitioners' motion.
Respondent's supplemental notice of objection, filed on February 12, 1990, has several attached exhibits. It neither confirms nor denies the specific collection actions mentioned in petitioners' motion, but states that the collection efforts referred to by petitioners concerned tax liabilities, for 1982, 1983, and 1984, not covered by the deficiency notice applicable to the instant case.
According to this supplemental notice of objection, because petitioners' 1982 taxable year is not part of the deficiency notice, this Court lacks jurisdiction to enjoin collection activities relating to that year. With regard to petitioners' 1983 and 1984 taxable years, which unlike 1982 are included in the deficiency notice, respondent refers to sections 6201(a)(3) and 6213(b)(1) in summarizing:
The petitioners' motion also should be denied as to the previous collection actions directed at the 1983 and 1984 liabilities. Although 1983 and 1984 are years before the Court in this case, the Service is not and was not attempting to collect any deficiencies or additions to tax determined in the * * * [deficiency notice]. Instead, THE 1983 AND 1984 LIABILITIES SUBJECT TO COLLECTION AROSE FROM PROPER ASSESSMENTS WHICH WERE NOT SUBJECT TO THE DEFICIENCY PROCEDURES. Those liabilities arose from fraudulent withholding claims which are assessable like mathematical or clerical errors and do not require the issuance of a notice of deficiency. [Emphasis in original.]
More specifically, respondent's position is that petitioners for 1983 claimed an overstated amount for withheld income taxes (against a reported taxable income of zero), a portion of which was refunded to petitioners and the remainder of which was credited to petitioners' 1984 estimated tax payments. For 1984, respondent alleges that petitioners (again with reported taxable income of zero) were erroneously refunded overstated withheld income taxes and the estimated tax amount applied from 1983.
Respondent's supplemental notice of objection also contains a paragraph and exhibits purporting to explain petitioner's current incarcerated status:
[Petitioner] was subsequently indicted on 14 counts of tax and other crimes. He pleaded guilty to three of these counts, including Count 1 (fraudulent withholding claims on the 1983 return) and Count 5 (fraudulent withholding claims on the 1984 return). He was sentenced to prison and remains incarcerated. Attached hereto * * * are a copy of the indictment and a copy of a newspaper article describing * * * the guilty plea.
Petitioner submitted a written statement to the Court dated February 20, 1990, purporting to ‘object To Respondent Jurisdiction brief [sic].‘ The only part of this statement responsive to respondent's explanation of the collection activities, apart from the attachment referred to below, is a paragraph alleging that the Service's Sarasota office is biased and prejudiced against petitioner. According to this paragraph, petitioner had known McNally for some time prior to the subject collection activities and, as an accountant over the past 10 years, had represented clients with interests adverse to McNally. The paragraph further states summarily that the ‘statements‘ of McNally are untrue, although the statements petitioner refers to are not identified. Attached to petitioner's written statement is a copy of a letter purportedly sent to petitioner by McNally, which, in referring to certain delinquent amounts, begins: ‘We have previously made demand for payment of your 1982, 1983, and 1984 personal income tax.‘
On February 26, 1990, respondent moved in writing for leave to amend his supplemental notice of objection. The proffered amendment incorporates an affidavit from McNally, which concludes: ‘The facts as stated in the * * * Supplemental Notice of Objection are correctly stated and reflect my knowledge of this matter.‘
By order of this Court dated March 13, 1990, petitioners were directed to respond in writing, by March 29, 1990, to both respondent's supplemental notice of objection and respondent's motion for leave to amend his supplemental notice of objection. Petitioners did not so respond.
In addition to petitioners' motion to restrain collection, we have before us respondent's motion to dismiss for lack of jurisdiction as to petitioner, filed on January 23, 1990. The asserted legal ground is that petitioner has violated the automatic stay provisions of the Bankruptcy Code, namely 11 U.S.C. sec. 362(a)(8) (1988), and the supporting factual assertion is as follows:
On August 21, 1989 the petitioner Gabriel Schlosser filed a petition with the United States Bankruptcy Court for the Middle District of Florida under 11 U.S.C. Chapter 7. A copy of the Bankruptcy Court's Notice of First Meeting of Creditors and of automatic stay is attached hereto * * *.
By order of this Court dated January 26, 1990, petitioners were directed to file any objection to this motion on or before February 12, 1990.
Petitioner timely objected to the motion, but much of petitioner's response consists of vague constitutional arguments and a reassertion of petitioners' motion to restrain collection. This response does not deny petitioner's involvement in bankruptcy proceedings, nor does it even mention the automatic stay provisions of 11 U.S.C. sec. 362(a)(8) (1988). There is, however,...
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