Taylor v. C.I.R., 85-3063

• Citation: 771 F.2d 478
• Decision Date: 17 September 1985
• Docket Number: No. 85-3063,85-3063
• Parties: -5926, 85-2 USTC P 9678 Billy D. TAYLOR, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. Non-Argument Calendar.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 478

771 F.2d 478

56 A.F.T.R.2d 85-5926, 85-2 USTC P 9678

Billy D. TAYLOR, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 85-3063

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

Sept. 17, 1985.

Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, Appellate Section, Gilbert S. Rothenberg, Steven I. Frahm, U.S. Dept. of Justice, Tax Div., Washington, D.C., for appellee.

Appeal from the Decision of the United States Tax Court.

Before TJOFLAT, VANCE and KRAVITCH, Circuit Judges.

PER CURIAM:

Appellant taxpayer contends that the United States Tax Court improperly dismissed his petition for failure to state a claim upon which relief can be granted. The Tax Court ruled that the petition did not comply with Tax Court Rule 34(b)(5), 26 U.S.C. foll. Sec. 7453, which requires that the petition set forth "clear and concise lettered statements of facts," and that it was therefore impossible to discern whether the petition stated a claim. We hold that where a petition fails to set forth facts as required by Tax Court Rule 34(b)(5), the Tax Court is correct in dismissing the petition for failure to state a claim.

On March 28, 1984, the Commissioner of Internal Revenue mailed a statutory notice of deficiency to the taxpayer, Billy D. Taylor, assessing him $95,577.50 in additional income taxes for 1980 and $4,778.88 in penalties. On June 25, 1984, the appellant filed a pro se petition in the Tax Court. The greater portion of the petition sets forth a standard tax protester diatribe; appellant admits in his brief before this court that the petition contained numerous items that were "extraneous, irrelevant and possibly down-right insulting." The petition did set forth the adjustments made by the Commissioner and assign them as error. It failed, however, to state any facts to show why the adjustments were in error.

The Commissioner filed a motion to dismiss the petition for failure to state a claim upon which relief could be granted. On September 25, 1984, the Tax Court issued an order holding the motion to dismiss in abeyance pending the receipt of an amended petition. The order informed the taxpayer that the petition contained large amounts of irrelevant material, making it difficult to determine whether the petition set forth justiciable issues, and ordered the taxpayer to file an amended petition by October 26, 1984. A copy of Tax Court Rule 34 was attached to the order to assist the taxpayer in preparing the amended petition.

Taylor filed an amended petition on October 30, 1984. The amended petition restated the original petition and in response to the request for specific statements of facts merely stated that he was appearing pro se, that his petition was in English, and that the Tax Court had accepted other informal petitions. The Tax Court ruled that Taylor had complied with Rule 34(b)(4) by assigning errors, but that he had not provided clear and concise facts and thus the petition did not comply with Rule 34(b)(5). Accordingly the court granted the Commissioner's motion to dismiss the petition.

The Commissioner's determination of a deficiency is presumed correct and the taxpayer has the burden of proving it incorrect. Welch v. Helvering, 290 U.S. 111, 115, 54 S.Ct. 8, 9, 78 L.Ed. 212 (1933); Potito v. Commissioner, 534 F.2d 49, 51 (5th Cir.1976), cert. denied, 429 U.S. 1039, 97 S.Ct. 736, 50 L.Ed.2d 751 (1977). ¹ In addition, the Tax ...