118 T.C. No. 33

UNITED STATES TAX COURT

RICHARD A. WILSON, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 13703-01. Filed June 12, 2002.

In conjunction with a criminal prosecution for tax

evasion, P executed a Plea Agreement in which he agreed

to file delinquent Federal income tax returns and

report specific amounts of income. After assessing the

tax liabilities reported on the delinquent returns, R

sent P a notice of deficiency determining only

additions to tax for fraudulent failure to file and

failure to pay estimated tax under secs. 6651(f) and

6654(a), I.R.C., respectively. P filed a petition for

redetermination. R moved to dismiss for lack of

jurisdiction, arguing that the deficiency notice was

invalid because R had not determined any “deficiency”

as defined in sec. 6211(a), I.R.C.

Held: This Court lacks jurisdiction over the

additions to tax for fraudulent failure to file because

such additions are not attributable to a deficiency. 

Sec. 6665(b)(1), I.R.C. 
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1 Unless otherwise indicated, 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.

Held, further, This Court lacks jurisdiction over

the additions to tax for failure to pay estimated tax

because P actually filed returns for the years in

issue. Sec. 6665(b)(2), I.R.C.

Howard B. Young and John A. Ruemenapp (specially

recognized), for petitioner.

Timothy S. Murphy and Tami Belouin, for respondent.

OPINION

DAWSON, Judge: This case was assigned to Special Trial

Judge Robert N. Armen, Jr., pursuant to the provisions of section

7443A(b)(5) and Rules 180, 181, and 183.1 The Court agrees with

and adopts the opinion of the Special Trial Judge, which is set

forth below.

OPINION OF THE SPECIAL TRIAL JUDGE

ARMEN, Special Trial Judge: This matter is before the Court

on respondent’s Motion to Dismiss for Lack of Jurisdiction. 

Respondent asserts that jurisdiction is lacking because “no

deficiency is raised in the notice of deficiency, pursuant to

I.R.C. sections 6211 and 6665, nor has respondent made any other

determination with respect to petitioner’s taxable years 1991,

1992, 1993, and 1994, that would confer jurisdiction on this
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Court.” As explained below, we shall grant respondent’s motion

to dismiss.

Background

On July 2, 1999, petitioner executed a Plea Agreement

pursuant to rule 11 of the Federal Rules of Criminal Procedure. 

In the Plea Agreement, petitioner agreed, inter alia, to file

with the Internal Revenue Service delinquent Federal income tax

returns for 1991, 1992, 1993, and 1994. In this regard, the Plea

Agreement states in pertinent part:

The defendant will file with the Internal Revenue

Service delinquent individual income tax returns, Forms

1040, for the years 1991, 1992, 1993, and 1994,

reporting, as income to him, diverted corporate

receipts and dividend income totaling $328,915,

$176,376, $222,472, and $251,839, respectively.

On March 22, 2000, petitioner filed U.S. Individual Income

Tax Returns, Forms 1040, for 1991, 1992, 1993, and 1994 in

compliance with the Plea Agreement. Petitioner reported tax

liabilities of $95,778, $48,262, $72,760, and $84,247 for the

years 1991, 1992, 1993, and 1994, respectively.

On September 13, 2001, respondent issued to petitioner a

notice of deficiency. In the notice, respondent determined that

although petitioner is not liable for any deficiencies in income

taxes, he is liable for additions to tax under section 6651(f)

(fraudulent failure to file) and section 6654 (failure to pay

estimated tax) for the years and in the amounts as follows:
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2 During the hearing, counsel for respondent argued that

although the Court lacks jurisdiction to redetermine the

additions to tax in question pursuant to its deficiency

jurisdiction under sec. 6213(a), the Court may have the authority

to review such additions to tax pursuant to its collection review

jurisdiction under secs. 6320 and 6330.

 Additions to Tax 

Year Tax Sec. 6651(f) Sec. 6654

1991 --- $71,834 $5,474

 1992 --- 36,197 2,105

 1993 --- 54,570 3,049

 1994 --- 63,185 4,372

On December 6, 2001, petitioner timely filed with the Court

a petition for redetermination, challenging the above-described

notice of deficiency. At the time that the petition was filed,

petitioner resided in Holly, Michigan.

In response to the petition, respondent filed a Motion to

Dismiss for Lack of Jurisdiction on the ground that the notice of

deficiency is invalid because respondent did not determine any

“deficiency” within the meaning of sections 6211 and 6665. 

Petitioner filed an Objection to respondent’s motion to dismiss. 

Thereafter, pursuant to notice, respondent’s motion was called

for hearing at the Court's motions session in Washington, D.C.2

Discussion

The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

statute. Naftel v. Commissioner, 85 T.C. 527, 529 (1985). The

Court’s jurisdiction to redetermine a deficiency depends upon the
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issuance of a valid notice of deficiency and a timely filed

petition. Rule 13(a), (c); Monge v. Commissioner, 93 T.C. 22, 27

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

The pivotal issue in this case is whether respondent

determined a “deficiency” in petitioner’s Federal income tax

within the meaning of sections 6211 and 6665. The term

“deficiency” is defined in section 6211(a) as the amount by which

the tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44,

of the Internal Revenue Code exceeds the excess of the sum of the

amount shown as the tax by a taxpayer on the taxpayer’s return

plus the amounts previously assessed (or collected without

assessment) as a deficiency, over the amount of rebates made.

Consistent with section 6211(a), the definition of a

deficiency is influenced in part by the definition of the term

“tax”. In this regard, section 6665(a) states the general rule

that additions to tax are treated as “tax” for purposes of

assessment and collection. However, section 6665(b) provides an

exception to the general rule as follows:

SEC. 6665(b) Procedure For Assessing Certain

Additions To Tax.--For purposes of subchapter B of

chapter 63 (relating to deficiency procedures for

income, estate, gift, and certain excise taxes),

subsection (a) shall not apply to any addition to tax

under section 6651, 6654, 6655; except that it shall

apply--

(1) in the case of an addition described in

section 6651, to that portion of such addition

which is attributable to a deficiency in tax

described in section 6211; or
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(2) to an addition described in section 6654

or 6655, if no return is filed for the taxable

year.

In sum, section 6665(b) provides in pertinent part: (1) An 

addition to tax under section 6651 will be treated as a tax for

purposes of the deficiency procedures only to the extent that the

addition to tax is attributable to a deficiency as defined in

section 6211, and (2) an addition to tax under section 6654 will

be treated as a tax for purposes of the deficiency procedures

only if no return is filed for the year in question. 

The record in this case shows that, consistent with a

criminal plea agreement, petitioner filed delinquent Federal

income tax returns for 1991, 1992, 1993, and 1994. Respondent

accepted those returns as filed and immediately assessed the

taxes reported therein. See sec. 6201(a)(1); Meyer v.

Commissioner, 97 T.C. 555, 559 (1991). The amounts shown as

taxes by petitioner on his returns do not constitute deficiencies

within the meaning of section 6211(a).

Respondent also determined that petitioner is liable for

additions to tax for fraudulently failing to timely file his tax

returns and failing to pay estimated taxes for the years in

question. Applying the plain language of sections 6211 and

6665(b) to the facts presented, we hold that the additions to tax

under section 6651(f) determined in the notice of deficiency are

not attributable to “deficiencies” within the meaning of section
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6211(a), and, therefore, the Court lacks jurisdiction over such

additions to tax in this case. The additions to tax that

respondent determined under section 6651(f) were computed by

reference to the taxes shown by petitioner on his delinquently

filed returns; thus, those additions are not attributable to a

deficiency as defined in section 6211. See Estate of Forgey v.

Commissioner, 115 T.C. 142 (2000); Meyer v. Commissioner, supra

at 559-563; Estate of DiRezza v. Commissioner, 78 T.C. 19, 25-32

(1982); Estate of Scarangella v. Commissioner, 60 T.C. 184

(1973); Newby’s Plastering, Inc. v. Commissioner, T.C. Memo.

1998-320. Further, the additions to tax that respondent

determined under section 6654 are not subject to the deficiency

procedures because petitioner actually filed tax returns, albeit

delinquently, for the years in question. See Meyer v.

Commissioner, supra at 561-563.

Finally, we repeat what we said nearly 30 years ago in a

case similar to the present one:

We recognize the difficult position in which

petitioners are placed by not being able to come to the

Tax Court to test the validity of the respondent’s

action in asserting the penalty. Nevertheless, that is

the law and we must take it as we find it.

Estate of Scarangella v. Commissioner, supra at 186-187.
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To reflect the foregoing,

An order will be entered

granting respondent’s Motion to

Dismiss for Lack of Jurisdiction.