1 Unless otherwise indicated, section references are to the

Internal Revenue Code in effect for the year at issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.

T.C. Memo. 2002-257 

UNITED STATES TAX COURT

DIETER STUSSY, Petitioner v.

 COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4088-02. Filed October 8, 2002.

Dieter Stussy, pro se.

Angelique M. Neal, for respondent.

MEMORANDUM OPINION

GOLDBERG, Special Trial Judge: This matter is before the

Court on Respondent’s Motion To Strike Portions Of The Petition,

filed pursuant to Rule 52.1 The issue raised by the motion is

whether portions of petitioner’s attachment to his petition
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2 Petitioner’s attachment to his petition is made a part of

the petition.

should be stricken as frivolous, immaterial, nonjusticiable,

and/or incomprehensible, and as violating the requirements of

Rule 34(b)(5).2 A hearing was conducted in Los Angeles,

California. At the hearing, petitioner orally moved to have the

case dismissed for lack of jurisdiction, asserting that the

notice of deficiency is invalid. At the conclusion of the

hearing, the Court took both motions under advisement.

Background

Respondent determined a deficiency in petitioner’s Federal

income tax for the taxable year 1998 in the amount of $2,983. 

The cover page of the notice of deficiency shows a deficiency

amount of $2,938 for the 1998 taxable year. However, all of the

information contained in the explanatory statements accompanying

the notice shows the computation of the deficiency amount of

$2,983. Respondent simply made a $45 typographical error on the

face of the notice, resulting from the transposition of the last

two digits in the deficiency amount.

The notice of deficiency included the following documents: 

(1) A cover letter titled “Notice of Deficiency”; (2) a Form 870,

Waiver of Restrictions on Assessment and Collection of Deficiency

in Tax and Acceptance of Overassessment (Waiver Statement); (3) a

Form 4089-A, Notice of Deficiency Statement; (4) a Form 5278,
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Statement-–Income Tax Changes; (5) a statement titled

“Explanation of Adjustments”; and (6) a statement titled “1998-

Schedule A-Itemized Deductions”.

In the Explanation of Adjustments, respondent described in

detail the following adjustments made to petitioner’s 1998 tax

return: (1) Contributions of $2,306.78 deducted on Schedule A

were disallowed for lack of substantiation; (2) miscellaneous

other expenses of $2,700.27 deducted on Schedule A were

disallowed for lack of substantiation, failure to establish that

the expense was ordinary and necessary, and failure to establish

that the expense qualifies as a miscellaneous other expense

pursuant to the Internal Revenue Code (Code); (3) other

miscellaneous deductions of $4,074.36 for section 691 expense

deducted on Schedule A were disallowed for lack of substantiation

and failure to establish that the expense qualifies as an other

miscellaneous deduction pursuant to the Code; and (4) interest

expense of $4,665.21 deducted on Schedule C was disallowed for

lack of substantiation, failure to establish that the expense was

ordinary and necessary, and failure to establish that the expense

qualifies as interest pursuant to the Code.

On the Statement–-Income Tax Changes, respondent increased

petitioner’s taxable income by the disallowed amounts described

above and revised petitioner’s taxable income for the year at

issue. In accordance with the revised taxable income, respondent
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determined an increase in petitioner’s income tax of $2,983. The

increased income tax amount of $2,983 was also reflected on the

Waiver Statement and the Notice of Deficiency Statement.

Petitioner filed a petition with the Court, attaching an 8-

page statement that included a “detailed explanation of

disagreement” with respondent’s determinations and a request for

a finding that the notice of deficiency is invalid on its face.

Respondent filed a Motion To Strike Portions Of The

Petition, requesting the Court to strike various sentences in

paragraphs 1 through 7 of petitioner’s statement attached to the

petition. Respondent asserts that the language sought to be

stricken in the petition is not proper, does not comply with the

Rules, and makes frivolous, vague, and immaterial allegations and

assertions with no factual basis.

Petitioner’s Opposition To Respondent’s Motion To Strike

Portions Of The Petition was filed claiming respondent’s motion

has no merit. Petitioner claims that each paragraph in the

petition contains a clear and concise assignment of error

committed by respondent. Further, petitioner contends that

respondent misinterprets Rule 34(b) to require that “each and

every sentence of the petition be enumerated” and asserts that

respondent moves to strike portions of the petition solely on

that misunderstanding.
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Discussion

1. Petitioner’s Oral Motion To Dismiss for Lack of Jurisdiction

We first consider petitioner’s oral motion to dismiss for

lack of jurisdiction due to an invalid notice of deficiency. If

we sustain petitioner’s motion, finding the notice to be invalid,

the Court will lack jurisdiction to hear this case and

respondent’s motion to strike will become moot. Accordingly, the

Court’s jurisdiction over this matter is resolved initially.

The United States Tax Court is a court of limited

jurisdiction. See sec. 7442. Under section 6213(a), the Court

has jurisdiction to redetermine deficiencies determined by the

Commissioner. The Court’s jurisdiction over deficiency

proceedings is contingent upon the issuance of a valid notice of

deficiency and a timely filed petition. See Rule 13(a), (c);

DaBoul v. Commissioner, 429 F.2d 38 (9th Cir. 1970); Monge v.

Commissioner, 93 T.C. 22, 27 (1989). “Thus, a valid notice of

deficiency and a timely petition are essential to our deficiency

jurisdiction, and we must dismiss any case in which one or the

other is not present.” Monge v. Commissioner, supra at 27.

A notice of deficiency is intended to serve two purposes. 

Frieling v. Commissioner, 81 T.C. 42, 53 (1983). It is intended

to notify a taxpayer that a deficiency has been determined

against the taxpayer and provide the taxpayer with the 
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opportunity to petition this Court for a redetermination of that

deficiency. Id.

In Scar v. Commissioner, 814 F.2d 1363, 1368 (9th Cir.

1987), revg. 81 T.C. 855 (1983), the Court of Appeals for the

Ninth Circuit held that respondent must consider information

relating to a particular taxpayer before respondent can be said

to have determined a deficiency with respect to that taxpayer.

For purposes of determining whether the notice of deficiency

provides sufficient information to apprise the taxpayer that the

Commissioner has determined a deficiency in tax, a notice of

deficiency includes the cover page and all attached pages and

documents. Smith v. Commissioner, T.C. Memo. 1979-16.

If a notice of deficiency otherwise fulfills its purpose, we

have held that a mathematical error in the notice will not

invalidate the notice where the taxpayer is not misled by the

error. See Myers v. Commissioner, T.C. Memo. 1981-84; see also

Smith v. Commissioner, supra.

Despite a trivial transposition error on the cover page of

the notice of deficiency, petitioner was adequately informed of

the income tax and issues in controversy by the notice of

deficiency. The petition indicates that petitioner was not

misled by the transposition error; rather, petitioner was fully

aware of the typographical error’s existence. The notice of

deficiency was not misleading and put petitioner on notice that
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respondent had determined a deficiency in his Federal income tax

for the year at issue. We attach no credence to petitioner’s

argument that he was misled by such an insignificant error.

Petitioner cites Scar v. Commissioner, supra, and Foster v.

Commissioner, 80 T.C. 34 (1983), affd. in part and vacated in

part 756 F.2d 1430 (9th Cir. 1985), for the proposition that a

“[single] deficiency must be found” for the notice of deficiency

to be valid. Petitioner’s interpretation of both of these cases

is misplaced.

In Scar, the taxpayers received a notice of deficiency that

disallowed a loss deduction from a partnership in which the

taxpayers owned no interest. Further, the notice computed a tax

due using the highest marginal tax rate at the time. In

considering whether the notice of deficiency was valid, the Court

of Appeals for the Ninth Circuit held that a notice of deficiency

is invalid if it is clear from the notice itself that the

Commissioner had not reviewed the taxpayers’ return or otherwise

made a determination of a deficiency with respect to the

taxpayers’ liability for the particular taxable year. Scar v.

Commissioner, supra at 1370.

The courts applying Scar have limited the rule established

in the case to its specific facts. See Kantor v. Commissioner,

998 F.2d 1514, 1521-1522 (9th Cir. 1993), affg. in part and revg.

in part T.C. Memo. 1990-380; Clapp v. Commissioner, 875 F.2d
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1396, 1402 (9th Cir. 1989). Simply stated, the rule set forth in 

Scar applies in the narrow set of circumstances where the notice

of deficiency on its face reveals that respondent failed to make

a determination. See Campbell v. Commissioner, 90 T.C. 110, 112-

113 (1988).

Here the facts are in no way analogous to the facts in Scar. 

Respondent did review petitioner’s 1998 tax return and made

adjustments to petitioner’s Schedule A and Schedule C. Based on

those adjustments, respondent determined a deficiency in tax for

the tax year at issue. The transposition error on the cover page

does not affect the validity of the notice.

Furthermore, the holding in Foster is inapplicable here and

does not stand for the proposition asserted by petitioner. See

Foster v. Commissioner, supra.

Additionally, petitioner cites Wilson v. Commissioner, T.C.

Memo. 1997-515, and Violette v. Commissioner, T.C. Memo. 1994-

173, for the proposition that a “typographical error in a

critical place” on the notice of deficiency is sufficient to

invalidate the notice. Petitioner’s interpretation incorrectly

broadens the holding in each case to encompass all typographical

errors. The error in each of those cases was in the address to

which the deficiency notice was mailed and was deemed sufficient

to affect delivery of the notice. The facts in each case are

therefore easily distinguishable from the facts here.
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We find the transposition error in the notice of deficiency

to be inconsequential and hold that the notice of deficiency is

valid. Consequently, we deny petitioner’s oral motion to dismiss

for lack of jurisdiction.

2. Respondent’s Motion To Strike Portions of the Petition

Pursuant to Rule 52, respondent moves to strike various

portions of the petition as frivolous, vague, and immaterial

allegations and assertions with no factual basis. Pages 2 and 3

of respondent’s motion identify the specific portions of the

petition which respondent seeks to strike. We need not detail

each specific statement sought to be stricken as petitioner was

properly served and is aware of respondent’s position.

Under Rule 52, this Court, upon timely motion by a party or

upon the Court’s own initiative at any time, may order stricken

from any pleading any insufficient claim or defense or any

redundant, immaterial, impertinent, frivolous, or scandalous

matter.

A motion to strike matter from a pleading will be granted

only if the moving party establishes (1) that the matter has no

possible bearing upon the subject matter of the litigation, and

(2) that prejudice will result to the moving party if the motion

is not granted. Estate of Jephson v. Commissioner, 81 T.C. 999,

1001 (1983).

A petition must contain (1) clear and concise assignments of
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each and every error which the petitioner alleges to have been

committed by the Commissioner in the determination of the

deficiency, and (2) clear and concise lettered statements of the

facts on which petitioner bases the assignments of error. Rule

34(b)(4) and (5).

The portions of the petition which respondent seeks to

strike include various code sections, regulations, public laws, a

revenue ruling, and several cases from this Court and other

Federal courts. In addition, the petition includes petitioner’s

opinions, arguments, legal theories, and conclusions.

We have read the petition and find that the matter which

respondent seeks to strike from the petition has no possible

bearing upon the subject matter of the litigation. The

objectionable material does not contain assignments of errors or

statements of facts as required by the Rules. See Rule 34(b)(4)

and (5). The language used is immaterial and impertinent to a

properly pled petition.

Petitioner is not prejudiced in any way by striking this

language. With the language stricken, any justiciable assignment

of error or statement of fact on which petitioner relies remains

in the petition. Additionally, petitioner is free to raise legal

arguments, cite authority, and draw conclusions therefrom at the

proper time. Striking the matter from the petition is warranted 
- 11 -

by Rules 34, 40, and 52. Cf. Ballantine v. Commissioner, 74 T.C.

516 (1980).

Accordingly, respondent’s motion to strike the language from

the petition will be granted, and our order will specify what

portions of the petition are to be stricken.

To reflect the foregoing,

An appropriate order will

be issued.