T.C. Memo. 2005-219

UNITED STATES TAX COURT

JOHN ERWIN HUNTER II AND ALMA ESTEBAN HUNTER, Petitioners v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 1397-05. Filed September 20, 2005.

John Erwin Hunter II and Alma Esteban Hunter, pro sese.

A. Gary Begun, for respondent.

MEMORANDUM OPINION

LARO, Judge: This matter is before the Court on

respondent’s motion to dismiss for failure to state a claim upon

which relief may be granted. All section references are to the

Internal Revenue Code, as amended, and all Rule references are to

the Tax Court Rules of Practice and Procedure.
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1 At the time of filing, petitioners resided in Ann Arbor,

Michigan.

Background

On December 2, 2004, respondent issued a notice of

deficiency in which respondent determined a $131,093 deficiency

in petitioners’ 2001 Federal income tax and a $26,218.60

accuracy-related penalty under section 6662. In January 2005,

the Court filed as an imperfect petition a document submitted by

petitioners in which they stated that they were contesting the

amounts set forth in the notice of deficiency.1 A week later,

the Court ordered petitioners to file a proper amended petition

and to pay the filing fee. On February 28, 2005, petitioners

filed an amended petition (first amended petition) in which they

alleged:

We are requesting injunctive relief totaling $50,000. Plus 

costs as The United States Tax Court deems appropriate. 

Because our 1040 tax form is subject to the 3 year statute 

of limitations that binds us and the commissioner. Instead,

IRS issued a 90 day letter without conducting a field audit 

at our former place of residence. This arbitrary decision 

involves $157,311.60 worth of retaliation and harassment 

contrary to The Tax Code or IRS rules. We ask dismissal or 

reversal of all determinations on record. 

About 2 weeks later, respondent filed a motion pursuant to

Rule 51(a) for a more definite statement as to the nature of

petitioners’ first amended petition, the relief requested

therein, and the reasons for which petitioners believed they were
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entitled to such relief. Petitioners submitted an unsigned

“Answer” to this motion in which they stated:

We come before the Court again. As we are seeking

injunctive relief totaling $57,083.67 in consideration. To

comply with the 22 March order, however, we ask the Court to

notice several specific errors in the respondent’s position:

(a) For the quarter ending 31 December 2005, the $976.00

deficiency or liability is underscored by our $1,169.36 in

paper assets such as mutual funds or a certificate of

deposit. This means our working capital or current ratio is

1.198 or 1 to 1. With $193.36 being our net working

capital. These positive numbers are set-off against the

phase-out formula that applies to the alternative minimum

tax liability.

The $56,107.87 Lein/Levy [sic] assessment may involve

questionable legality. Such as:

(a) Our 2002 tax form and supporting materials were sent via

certified mail, which was postmarked 09 April 2003. That

being 6 days prior to the 15 April 2003 deadline. However,

these facts are not mentioned in the transcript of 1-07-05. 

(b) Our tax filing date was erroneously reported as 07-07-

03. This constitutes an 82 to 88 day time gap, which

allowed us to be hit with a $55,686.75 tax assessment plus

interest and penalties. Thus amounting to an overall tax

liability of $56,107.87 or more. We respectfully disagree

with ambiguous nature of said procedure. 

Approximately 1 month later, the Court granted respondent’s

motion for a more definite statement and ordered petitioners to

file an amended petition by May 13, 2005. 

On May 16, 2005, petitioners, in purported compliance with

the Court’s order, filed with the Court a second amended

petition. The second amended petition stated:

Procedure Rule 331 directly answers the respondent’s motion

for a more definite statement. IN SUPPORT THEREOF, we

respectfully show unto the Court: The Detroit Appeals Office
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has granted us relief under IRC 6213 and 6330. Regardless

of the Notice of Deficiency alleging $131,093.00 in tax

liability. Plus a $26,218.60 penalty for tax year 2001. 

WHEREFORE, we the petitioners pray: that the Court enter an

order requiring the respondent to answer our claim. Or the

court award us injunctive relief.

 

On June 9, 2005, respondent filed the motion at hand. In

his motion, respondent asserts that petitioners in their second

amended petition have made no factual or justiciable claims of

error against respondent’s notice of deficiency. Respondent also

notes that petitioners have set forth in their second amended

petition no facts in support of any claimed error on the part of

respondent. 

On July 25, 2005, petitioners submitted a notice of

objection to respondent’s motion, seeking costs, damages, and

refunds “starting at $157,311.60” for 2001. In support,

petitioners stated:

(1) On June 5, 2001, we did accomplish our Certified

Affidavit of Support under United States Immigration Law

213A of said Act. We did submit those documents to The

Department of Justice and The INS as well. The financial

statement and supporting paperwork are answer and rebuttal

to the respondent’s notice of deficiency dated December 2,

2004. In failing to collect our Affidavit, America is

responsible for reckless and intentional disregard under 26

USC 7433. 

(2) Under the February 17, 2005, letter of determination,

not following proper procedure also gives rise to an action

for economic damages under 26 USC 7430. Since the

respondent did willfully understate our tax liability by

invalid audit or investigation dated 7/17/2003, 6/23/2004,

and 11/18/2004. This inaccurate information was used in

full during and after the respondent’s issuing of the

deficiency notice dated December 2, 2004. 
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(3) We think our position is consistent with the

determination made under Arnett v. United States. (845 F

Supp 796 1994) Relative to White v. Commissioner. (T.C. Memo

1981-609) Furthermore, we think that our Accounts

Receivable can move our claim well past the 15 April 2005

Statute of Limitations under Klien v. Commissioner. (45 T.C.

308 1965) Nor did we sign away our taxpayer rights under

Goldsmith v. Commissioner. (31 T.C. 56 1958)

(4) We did exhaust our administrative remedies in

requesting refund of $1,593.91 taken from tax year 2004. We

would very much appreciate receiving the amount in question. 

Along with the $768.99 taken for tax year 2000-2001. As

this issue is a matter of prior judgment. 

(5) WHEREFORE, we pray that the court affirm or grant our

notice of objection.

Discussion

Rule 34(b)(4) requires that a petition filed in this Court

contain clear and concise assignments of each and every error

that the petitioning taxpayer alleges to have been committed by

the Commissioner in the determination of any deficiency, addition

to tax, or penalty in dispute. Rule 34(b)(5) further requires

that the petition contain clear and concise lettered statements

of the facts on which the taxpayer bases the assignments of

error. See Funk v. Commissioner, 123 T.C. 213, 215 (2004);

Jarvis v. Commissioner, 78 T.C. 646, 658 (1982); Meeker v.

Commissioner, T.C. Memo. 2005-146; Stearman v. Commissioner, T.C.

Memo. 2005-39. Any issue not raised in the pleadings is deemed

conceded. See Rule 34(b)(4); Funk v. Commissioner, supra; Jarvis

v. Commissioner, supra at 658 n.19; Gordon v. Commissioner, 73

T.C. 736, 739 (1980); Meeker v. Commissioner, supra; Stearman v.
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Commissioner, supra. Further, the failure of a party to plead or

otherwise proceed as provided in the Court’s Rules may be grounds

for the Court to hold the party in default, either on the motion

of another party or on the initiative of the Court. See Rule

123(a); Meeker v. Commissioner, supra; Stearman v. Commissioner,

supra; Ward v. Commissioner, T.C. Memo. 2002-147. The Court also

may dismiss a case and enter a decision against a taxpayer for

his failure properly to prosecute or to comply with the Rules of

this Court. See Rule 123(b); Meeker v. Commissioner, supra;

Stearman v. Commissioner, supra; Ward v. Commissioner, supra. 

We agree with respondent that petitioners have failed to

state a claim upon which relief can be granted. See Funk v.

Commissioner, supra at 216-217; Meeker v. Commissioner, supra;

Stearman v. Commissioner, supra. Although they had ample

opportunities to do so, petitioners have still failed to present

the Court with a petition containing clear and concise

assignments of errors that petitioners allege respondent has

committed in the determination of the deficiency or the

associated penalty. Petitioners have likewise failed to include

in their petition clear and concise statements of the facts on

which petitioners base their assignments of error. Instead,

petitioners have included in their petitions and other filings

with the Court virtually incoherent arguments. The petition

neither conforms to this Court’s Rules of Practice and Procedure
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nor states a claim upon which relief can be granted. Because of

the absence from the petition of specific justiciable allegations

of error and of supporting facts, this Court will grant

respondent’s motion. See Funk v. Commissioner, supra. 

Accordingly, we shall dismiss petitioners’ case and enter a

decision sustaining respondent’s determinations contained in the

notice of deficiency for 2001. 

An appropriate order of 

dismissal and decision will be 

entered.