FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 6, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14225

Non-Argument Calendar

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Agency No. 8390-08

O. DAVID SALERY,

Petitioner-Appellant,

versus

COMMISSIONER OF IRS,

Respondent-Appellee.

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Petition for Review of a Decision of the

United States Tax Court

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(March 6, 2009)

Before BIRCH, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

O. David Salery, proceeding pro se, appeals the Tax Court’s dismissal of his
petition for lack of jurisdiction. After a thorough review of the record, we affirm.

Salery filed a pro se petition disputing “notice of determination concerning

collection action” in the U.S. Tax Court alleging that he had received a notice of

taxes owed but that no liability in fact existed. Attached to the petition was a copy

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of a letter showing that Salery indicated on his 2006 tax return that he owed taxes

in the amount of $4,951. According to the letter, Salery had not paid the taxes

owed, thus accruing interest and penalties, for a total amount due of $6983.66.

Salery moved for a hearing, to compel discovery, and to show proof of

liability. Salery also challenged the IRS’s jurisdiction over him. Salery admitted,

however, that he had not received a notice of deficiency from the IRS. He

requested that the Tax Court conduct a determination of his liabilities.

Upon a motion by the government, the Tax Court dismissed the petition,

finding that there was no valid notice of deficiency and thus there was no

jurisdiction to seek redetermination of the deficiency. Salery moved to vacate the

“void” judgment, alleging that the Tax Court judge had committed fraud upon the

court. After the court denied the motion, Salery appealed, arguing that the court

and the IRS lacked jurisdiction to impose tax liabilities, and the court violated his

due process rights and committed fraud by failing to terminate the tax liens issued

This is not Salery’s first challenge to his tax liabilities. See Salery v. C.I.R., 203 Fed. 1

Appx. 251 (11th Cir. 2006) (challenging notice of deficiency for tax year 2001).

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against him.

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We review issues of jurisdiction de novo. Redeker-Barry v. United States,

476 F.3d 1189, 1190 (11th Cir. 2007). We also review de novo the Tax Court’s

interpretations of the Internal Revenue Code. L.V. Castle Inv. Group, Inc. v.

Comm’r, 465 F.3d 1243, 1245 (11th Cir. 2006).

The Tax Court has jurisdiction over challenges to an IRS determination of

income tax liability. 26 U.S.C. §§ 6212(a), 6213(a), 7442. The IRS has the

authority to determine the amount of taxes owed and “shall assess all taxes

determined by the taxpayer . . . as to which returns or lists are made” under the

Internal Revenue Code (“IRC”). 26 U.S.C. § 6201(a)(1). If the IRS determines

that there is a deficiency in the amount owed, the IRS must notify the taxpayer of

the deficiency. 26 U.S.C. § 6212. The IRC defines deficiency as the difference

between the taxpayer’s liability (as determined by the IRS) and the liability shown

on the taxpayer’s return. 26 U.S.C. § 6211. The mailing of a valid notice of

deficiency is generally a prerequisite to formal assessment and collection of the

deficiency by the IRS. Id. § 6213(a).

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A statutory notice of deficiency has a specific, technical meaning. As this

To the extent that Salery claims the government had no jurisdiction to assess taxes against 2

him, that argument is without merit. See 26 U.S.C. §§ 6012, 6651, 7701(a)(1).

Alternatively, the IRS may issue a lien and place a levy on property to collect unpaid taxes. 3

As the government explains, no lien has been imposed in this case.

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court has explained, the plain language of § 6212(a) requires that the notice, “at a

minimum indicate that the IRS has determined that a deficiency exists for a

particular year and specify the amount of the deficiency.” See Benzvi v. C.I.R.,

787 F.2d 1541, 1542 (11th Cir. 1986); see also 26 U.S.C. § 6212(a).

A taxpayer who receives a notice of deficiency may petition the Tax Court

for a “redetermination of the deficiency.” 26 U.S.C. § 6213(a). Thus, before a

taxpayer may petition the Tax Court for a redetermination of deficiency, the IRS

first must have notified the taxpayer that it has examined the taxpayer’s return and

made a deficiency determination. Id. § 6214; Benzvi, 787 F.2d at 1542.

Here, as Salery repeatedly concedes, no notice of deficiency ever issued.

Moreover, the letter Salery received cannot be construed as a notice of deficiency

because the letter merely identified the amount of taxes owed according to Salery’s

own tax returns. At no time has the IRS concluded that the amount owed differs

from the amount Salery identified on his returns. Thus, the letter does not qualify

as a notice of deficiency.

In the absence of such notice, the Tax Court properly determined that it

lacked jurisdiction over Salery’s petition. Accordingly, we AFFIRM.

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