Weiss v. Comm'r of Internal Revenue

• Decision Date: 23 April 1987
• Docket Number: Docket No. 25537-86
• Citation: 88 T.C. 1036,88 T.C. No. 57
• Parties: HERBERT WEISS AND ESTATE OF ROBERTA WEISS, DECEASED, HERBERT WEISS, PERSONAL REPRESENTATIVE, PETITIONERS v. COMMISSIONER OF INTERNAL REVENUE, Respondent
• Court: U.S. Tax Court

88 T.C. 1036

88 T.C. No. 57

HERBERT WEISS AND ESTATE OF ROBERTA WEISS, DECEASED, HERBERT WEISS, PERSONAL REPRESENTATIVE, PETITIONERS

v.COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 25537-86

United States Tax Court

Filed April 23, 1987.

The Court determined that R's motion to dismiss for lack of jurisdiction should be granted. Ps then filed for an award of litigation costs pursuant to section 7430. HELD, after the issuance of a statutory notice of deficiency, the timely filing of a petition with this Court commences a civil proceeding. HELD FURTHER, section 7430 authorizes us to consider a motion for award of litigation costs. HELD FURTHER, we have jurisdiction to Michael I. Saltzman and Barbara T. Kaplan, for the petitioners.

Sharon Katz-Pearlman, for the respondent.

OPINION

WILLIAMS, JUDGE*:

By notice of deficiency dated April 9, 1986 the Commissioner determined a deficiency of $10,972.00 in petitioners' Federal income tax for their 1982 taxable year. The deficiency was based entirely on adjustments resulting from a disallowance of petitioners' distributive share of loss from Transpac Drilling Venture 1982-14, a limited partnership formed after September 3, 1982 and as to which the partnership audit and litigation provisions set out in subchapter C of chapter 63 of Subtitle F of the Code, section 6221 et seq. apply. ¹ Petitioners timely filed their petition on July 7, 1986.

On November 3, 1986, respondent, without objection from petitioners, filed a motion to dismiss for lack of jurisdiction based on respondent's failure to comply with the partnership audit provisions. This Court granted respondent's motion and dismissed the case on November 14, 1986. On January 9, 1987, petitioners filed a motion requesting this Court to award litigation costs pursuant to section 7430 and Rules 230 through 233. ² We vacated our order of dismissal to consider petitioners' motion. The issue we must decide is whether this Court may award litigation costs pursuant to section 7430 ³ after it determines that a case should be dismissed for lack of jurisdiction. ⁴

The facts are not in dispute. Petitioner Herbert Weiss resided at New York, New York when the petition in this case was filed. Herbert and Roberta Weiss timely filed a joint Federal income tax return for 1982. Roberta Weiss is now deceased.

In 1982 Herbert and Roberta became a limited partner ⁵ In Transpac Drilling Venture 1982-14 (‘Transpac‘). Their distributive share of loss from Transpac for 1982 was $42,837.00, which they reported on their 1982 income tax return. Transpac is a partnership to which the partnership audit and litigation provisions of the Code, section 6621 et seq., apply and the losses suffered in 1982 are partnership items within the meaning of section 6231(a)(3). Respondent has not issued a notice of final partnership administrative adjustment for 1982 to Transpac. See section 6223(a)(2). Respondent's notice of deficiency determines a deficiency attributable to a partnership item and an affected item. This Court lacks jurisdiction in a partner's individual tax case to determine any portion of a deficiency attributable to either a partnership item or an affected item. Maxwell v. Commissioner, 87 T.C. 783 (1986). We, therefore, determined that this case should be dismissed for lack of jurisdiction.

Petitioners claim that though their case should be dismissed for lack of jurisdiction and cannot be adjudicated on the merits, they have satisfied the conditions of section 7430 and are entitled to an award of litigation costs. We do not determine whether petitioners are prevailing parties ⁶ or have satisfied the many other conditions precedent to an award under section 7430(a). See section 7430(b).

The threshold issue that we must now decide is whether we may award litigation costs pursuant to section 7430 after we determine that a case should be dismissed for lack of jurisdiction. Until we dismiss a case for lack of jurisdiction, we have jurisdiction over it. The filing of a petition in this Court subsequent to the issuance of a statutory notice of deficiency gives us jurisdiction over the case. Pyo v. Commissioner, 83 T.C. 626, 632 (1984); Rule 20(a); section 6213(a); cf. Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1003 (1978).

It is axiomatic that a case properly commenced is a civil proceeding. That a case terminates by reason of dismissal for lack of jurisdiction does not nullify the proceeding or void the petition. Section 7459(c). Indeed, the order of dismissal in this case will have binding legal effect by declaring the statutory notice of deficiency ineffectual, and respondent, therefore, may not assess the deficiency he determined. Section 6225(a); Maxwell v. Commissioner, 87 T.C. at 788; see also section 6215(a). ⁷ Section 7430(a) provides for an award of litigation costs in any civil proceeding. Because this case is a civil proceeding and does not lose its nature as a civil proceeding after it has been dismissed for lack of jurisdiction, section 7430(a)(2) authorizes, if otherwise appropriate, the award of reasonable litigation costs. ⁸

We recognize that the Seventh Circuit recently adopted a contrary view of our jurisdiction in Sanders v. Commissioner, 813 F.2d at 859 (7th Cir. 1987), affg. an unpublished order of this Court. In Sanders we dismissed the case for lack of jurisdiction because the statutory notice of deficiency had been mailed to the wrong address. See section 6212. Subsequent to our entering an order of dismissal, petitioner moved for an award of litigation costs pursuant to section 7430. The Seventh Circuit agreed with our unpublished order denying petitioner's motion on the ground that we had no jurisdiction to entertain the motion because we lacked jurisdiction to consider the merits of the case. The Sanders opinion does not, however, consider the effect of the language ‘in any civil proceeding‘ in analyzing the extent of our jurisdiction to entertain motions for an award of attorneys fees. This is likely because our Fuller opinion, which we today reject, also did not address this point. Citing an absence in section 7430 of any time within which petitioners must ask for an award of attorneys fees, the Seventh Circuit concluded that ‘Congress intended that a section 7430 motion be made before the final disposition of a case.‘ For purposes of the Internal Revenue Code, however, there is no ‘final disposition‘ of a case litigated in this Court until after the time for appealing our decision expires or appeals are exhausted. Section 7481(a). Furthermore, our rules require that petitioners wait until after the merits of a case have been resolved before asking for an award of litigation costs. Rule 231(a). This permits an orderly consideration of such motions and avoids needless argument. While our rules do not specifically contemplate the circumstances of a case dismissed for lack of jurisdiction, it seems appropriate to apply the 30-day period of Rule 231(a)(2) to such cases from the time the order of dismissal is entered.

We believe that Congress has given us authority to resolve all questions related to the issue of our jurisdiction, including ancillary matters such as an award of attorney fees. We think that the following portion of Judge Reynolds' concurring opinion in Sanders reflects our conclusions upon reconsidering the rationale of Fuller v. Commissioner, T.C. Memo. 1986-33:

Just because the tax court found that it did not have the power to determine the merits of the dispute between the parties, it does not follow that it lacked jurisdiction to award fees based upon the reasonableness of the parties' positions regarding a question over which the tax court did have jurisdiction, i.e., whether the tax court had jurisdiction. The tax court had jurisdiction over any questions which necessarily revolve around the question of jurisdiction, including attorney fees. [813 F.2d at 826-863 (7th Cir. 1987).]

This authority is confirmed by a plain reading of section 7430(e) ⁹ which provides that an order awarding or denying litigation costs shall be incorporated into the decision or judgment in the case. An order of dismissal for lack of jurisdiction is a final order, appealable as such, and surely is either a ‘judgment‘ or a ‘decision.‘ While neither ‘judgment‘ nor ‘decision‘ is defined in the Internal Revenue Code, an Order dismissing a case for lack of jurisdiction is minimally a final order and is appealable as either a ‘decision‘ or a ‘judgment‘ within the meaning of section 7430(e).

We believe that our decision to entertain a motion for award of litigation costs in this case effectuates the plain meaning of section 7430. When it enacted section 7430, Congress did so to deter abusive actions or overreaching by the Internal Revenue Service and to enable taxpayers to vindicate their rights regardless of their economic circumstances. H. Rept. 97-404, 97th Cong., lst Sess. 11 (1981). ¹⁰ As a result, this Court was authorized to award reasonable litigation costs ‘in any civil proceeding‘ where such an award is otherwise appropriate. This case is a civil proceeding. Therefore, we are authorized to determine whether petitioners are entitled to an award of reasonable litigation costs.

Having determined that section 7430 permits an award of litigation costs following a determination that a case should be dismissed for lack of jurisdiction, we must decide whether petitioners qualify for such an award. That judgment can be made only after respondent has an opportunity to reply to petitioners' motion and any necessary hearing is held.

An appropriate order will be issued.

Reviewed by the Court.

STERRETT, SIMPSON, CHABOT, NIMS, PARKER, WHITAKER, SHIELDS, HAMBLEN, COHEN, CLAPP, SWIFT, JACOBS, GERBER, WRIGHT, PARR, and WELLS, JJ., agree with this opinion.

* By Order of the Chief Judge, petitioners' Motion for Award of Litigation Costs was assigned to Judge Williams for disposition.¹ All section...