1 Petitioner herein also has filed a motion to dismiss

which is being held in abeyance until resolution of respondent’s

motion to dismiss. Petitioner’s motion to dismiss is based on an

allegedly invalid notice of deficiency under the Tax Equity and

Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, 96

Stat. 324, partnership rules of sec. 6221. 

T.C. Memo. 2007-205

UNITED STATES TAX COURT

W. BRIAN McDERMOTT, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 19530-06. Filed July 26, 2007.

W. Brian McDermott, pro se.

Robert M. Fowler, for respondent.

MEMORANDUM OPINION

SWIFT, Judge: This matter is before us on respondent’s

motion to dismiss for lack of jurisdiction.1 Respondent also
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seeks damages against petitioner under section 6673.

Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect at all relevant times.

Petitioner objects, and petitioner seeks damages against

respondent under section 6673(a)(2) for making allegedly

frivolous arguments in support of respondent’s motion to dismiss.

Respondent’s motion to dismiss is based primarily on the

fact that petitioner’s petition herein was filed more than 6

years after respondent mailed to petitioner and his now deceased

wife the underlying notice of deficiency.

On March 29, 2000, respondent mailed to petitioner and his

wife a notice of deficiency determining that petitioner had

significant additional income for 1996 and that they owed a joint

Federal income tax deficiency in the amount of $263,778, plus an

accuracy-related penalty in the amount of $52,781.

Petitioner does not allege that he did not timely receive

respondent’s notice of deficiency, and the 90-day period for

timely filing a petition with this Court with regard to the

notice of deficiency expired on June 27, 2000.

On September 5, 2000, respondent assessed the above $263,778

additional Federal income taxes against petitioner and his wife.

In September of 2004, petitioner disputed respondent’s

collection activity relating to the above tax deficiency by

filing a collection appeal and thereafter a collection case in

this Court, asserting various tax protester arguments. William
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B. & Donna McDermott v. Commissioner, docket No. 16240-04L.

On May 18, 2005, in the above collection case, we granted a

motion for summary judgment that respondent had filed against

petitioner. In the order granting respondent’s summary judgment

and dismissal of petitioner’s collection case, we warned

petitioner that a penalty under section 6673 would be considered

if petitioner continued to make frivolous arguments.

Under section 6213(a), generally a petition must be filed

relating to a notice of deficiency within 90 days of the mailing

of the notice of deficiency to a taxpayer.

On September 25, 2006, more than 6 years after respondent

mailed the above notice of deficiency to petitioner and his wife,

petitioner filed his petition herein. Respondent’s motion to

dismiss is based on petitioner’s late petition.

In opposition, petitioner admits the untimeliness of his

petition, but petitioner argues that we still have jurisdiction

to rule on the validity of respondent’s notice of deficiency, and

petitioner argues that respondent’s notice of deficiency

erroneously charges to him income of a TEFRA partnership. Based

thereon, petitioner argues that the income charged to him in

respondent’s notice of deficiency should have been charged to him

by respondent in a TEFRA partnership proceeding utilizing a

Notice of Final Partnership Administrative Adjustment, and

petitioner argues that respondent’s motion to dismiss should be
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denied.

The factual issue as to whether income charged to petitioner

in respondent’s notice of deficiency represents income petitioner

earned in his individual capacity or income earned as a partner

in a TEFRA partnership does not go to the jurisdiction of this

Court.

In any event, because petitioner’s petition was filed late,

we shall grant respondent’s motion to dismiss for lack of

jurisdiction. In our discretion, we decline to award damages

against petitioner under section 6673.

To reflect the foregoing,

An appropriate order of

dismissal for lack of

jurisdiction will be entered.