“If the taxpayer fails to file a Tax Court petition during this ninety day period, the Tax Court lacks jurisdiction to consider the deficiency”
How later courts described this case
- “If the taxpayer fails to file a Tax Court petition during this ninety day period, the Tax Court lacks jurisdiction to consider the deficiency”
- specifically citing and quoting Judge Sterrett 's dissent, at 1370 note 12
- providing an example of a clearly insufficient notice of deficiency without such a declaration
- deficiency notice is adequate if it states amount of deficiency and tax year involved
Written by the judges who cited it.
The opinion
Swift, J., concurring: I concur in the majority opinion but disagree with the suggestion therein, in Judge Chabot’s concurring opinion, and in Judge Whitaker’s dissent that but for the presence of a similar issue before this Court for taxable year 1977, the Commissioner’s motion to amend under Rule 41(a), Tax Court Rules of Practice and Procedure, would and should be denied.
Where the Commissioner has been severely delinquent in moving to amend his answer to raise a new issue and where that delinquency results in significant prejudice to the taxpayer, this Court should not be hesitant to deny a motion to amend. However, the facts of this case do not begin to establish any such delinquency or prejudice. On November 29,1982, just 4 y2 months after the petition was filed, the Commissioner notified taxpayers of the issue concerning the video tape tax shelter, and on April 5, 1983, the Commissioner’s motion to amend was filed. No discovery has occurred. No significant pretrial proceedings have occurred due to the dispute over the jurisdictional issue.
Factors which might result in a denial of a motion to amend an answer (e.g., stale evidence, unavailable witnesses or documents, passage of undue time, remoteness in time of taxable years involved in the underlying dispute, or completion of discovery and/or trial) are not present in this case. The majority opinion correctly concludes that the Commissioner’s motion to amend its answer should be granted.
Dawson and Simpson, JJ, agree with this concurring opinion.