1Rule references are to the Tax Court Rules of Practice and

Procedure.

T.C. Memo. 1997-489

 

UNITED STATES TAX COURT

HAROLD L. PERRY, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 15108-97. Filed October 29, 1997.

Jordan Musen, for respondent.

MEMORANDUM OPINION

CARLUZZO, Special Trial Judge: This case was assigned

pursuant to the provisions of section 7443A(b)(3) of the 

Internal Revenue Code, and Rules 180, 181, and 182,1 and is

before the Court on respondent's Motion to Dismiss for Failure
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to State a Claim Upon Which Relief Can Be Granted, filed

September 2, 1997, and petitioner's Motion to Change Place of

Hearing, filed October 7, 1997. Both motions were heard at the

Court's Motions Session in Washington, D.C., on October 8, 1997.

Background

On February 7, 1997, respondent mailed a letter to

petitioner advising him that respondent had no record of having

received a Federal income tax return from him for the year 1991. 

In this letter respondent: (1) Suggested that petitioner file a

1991 return, or explain why he was not required to do so; and (2)

invited petitioner to provide any information that petitioner

wanted respondent to consider in connection with the matter.

Apparently in response to respondent's February 7 letter to

him, petitioner sent a letter to respondent, dated March 3, 1997. 

Petitioner's March 3 letter consists of three printed pages of 32

questions or statements, many of which include references to

Supreme Court or other Federal Court citations ostensibly in

support of, or authority for, the specific question or statement. 

Question number 31 requests that respondent "prove to this

Citizen how the IRS Commissioner has jurisdiction over any

subject matter concerning this Citizen". In the final paragraph

of the letter, petitioner states, "this Citizen hereby pleads and

does give notice that the IRS Commissioner has an absence of

jurisdiction over this Citizen's person". 
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On April 11, 1997, respondent issued a notice of deficiency

to petitioner determining a deficiency in, and additions to, his

Federal income tax for 1991. In the notice of deficiency

respondent determined that petitioner failed to file a Federal

income tax return for 1991 and report thereon certain income (as

reported to respondent by various payers) received by him during

that year.

In response to the above-mentioned notice of deficiency, on

July 14, 1997, petitioner filed a timely petition with the Court. 

He was residing in Oakland, California, at that time. In the

petition, petitioner: (1) Admits that he did not file a Federal

income tax return for the year 1991; (2) alleges that he has been

denied the opportunity to meet with respondent to discuss his tax

liability for that year; and (3) alleges that respondent failed

to respond to his March 3 letter, in which he "requested

information" from respondent. The petition does not assign error

to any of the adjustments made in the notice of deficiency, nor

contain any allegations of fact in support of any assignments of

error. In the prayer for relief, petitioner requests "that this

matter be referred back to the Commissioner with instructions

that the Commissioner respond to * * * [his] request for

information". Petitioner's March 3 letter is attached to, and

incorporated by reference into, the petition. 
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2Rule 50(c) provides: If a motion is noticed for hearing,

then a party to the motion may, prior to or at the time for such

hearing, submit a written statement of such party's position

together with any supporting documents. Such statement may be

submitted in lieu of or in addition to attendance at the

hearing."

On September 2, 1997, respondent filed a Motion to Dismiss

for Failure to State a Claim Upon Which Relief Can Be Granted. 

By order dated September 4, 1997, petitioner was directed to file

a proper amended petition setting forth with specificity each

error allegedly made by respondent in the determination of the

deficiency and separate statements of every fact upon which the

assignments of error are based. In addition, the order provided

that respondent's motion would be called for hearing in

Washington, D.C., on October 8, 1997. In this regard

petitioner's attention was called to Rule 50(c).2

 Petitioner did not file an amended petition. Neither did 

he submit a written statement pursuant to Rule 50(c). Instead,

on October 7, 1997, petitioner filed a Motion to Change Place of

Hearing in which he requested that the hearing be held in San

Francisco, California, because he could not afford to travel to

Washington, D.C.

Discussion

Petitioner's Motion

Rule 130(a) provides that if a hearing is to be held on a

motion, then such hearing ordinarily will be held in Washington,
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D.C., at the Court's weekly motions session. To suit the

convenience of the parties and the Court, the Court may on its

own motion, or pursuant to the written request of any party to

the motion, direct that the hearing be held at a location other

than Washington, D.C. Rule 50(b)(2).

In this case petitioner has made no showing that an

evidentiary hearing is necessary with respect to respondent's

motion. See generally Maxfield v. Commissioner, 153 F.2d 325,

327-328 (9th Cir. 1946) (construing a Rule of this Court no

longer in effect); Bolton v. Commissioner, T.C. Memo. 1990-181. 

Given the nature of respondent's motion, and considering the

representations, allegations and prayer for relief made in the

petition, it is clear to us that any opposition petitioner might

have to respondent's motion would not depend upon the

introduction of evidence, but rather would consist of argument(s)

that could have been submitted in a written statement. We

understand that the expenses involved in traveling from San

Francisco to Washington, D.C. might have effectively prevented

petitioner's attendance at the hearing, but our Rules clearly

provide that his attendance was not required. Rules 50(c),

130(b). Petitioner was advised of the opportunity to submit a

written statement in lieu of his attendance at the hearing in

Washington, D.C. (and given the opportunity to file an amended

petition), and he has failed to so. Changing the place of the
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hearing in this matter from Washington, D.C. to San Francisco, as

requested in petitioner's motion filed one day prior to the date

of the scheduled hearing, would serve no purpose but to delay the

resolution of respondent's motion. Consequently, petitioner's

motion will be denied. 

Respondent's Motion

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

contain clear and concise assignments of each and every error

that the taxpayer alleges to have been committed by the

Commissioner in the determination of the deficiency and the

additions to tax in dispute. Rule 34(b)(5) further requires that

the petition contain clear and concise statements of the facts on

which the taxpayer bases the assignments of error. See Jarvis v.

Commissioner, 78 T.C. 646, 658 (1982).

The petition filed in this case does not satisfy the

requirements of Rule 34(b)(4) and (5). Although petitioner

states that he disagrees with respondent’s determinations, there

is neither assignment of error nor allegation of fact in support

of any assigned error. After having been provided the

opportunity to do so, petitioner failed to file a proper amended

petition as he was directed to by the Court. The allegations

contained in the petition that petitioner has not had an

opportunity to meet with respondent to discuss his 1991 Federal

income tax liability and that respondent has failed to respond to
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his request for information do not present justiciable issues.

Furthermore, the Court does not have the power to grant the

unusual relief requested in the petition.

Because the petition fails to state a claim upon which

relief can be granted, we shall grant respondent's motion to

dismiss. See Rules 34(a)(1), 123(b); Scherping v. Commissioner,

747 F.2d 478 (8th Cir. 1984).

To reflect the foregoing,

An appropriate order and

decision will be entered.