“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
Whitaker, J., concurring in part and dissenting in part: I agree with the majority that the deficiency notice is valid and hence that we acquired jurisdiction upon the filing of the petition in this case. Thus, petitioners’ motion to dismiss for lack of jurisdiction must be dismissed. I strongly disagree, however, with the granting of respondent’s motion for leave to amend the answer and the consequent denial of petitioners’ motion for summary judgment.
The majority states: "In view of the foregoing, we can see no prejudice to petitioners in granting respondent’s motion.” In finding no prejudice, the majority places emphasis on the pendency before this Court of the prior year which includes the same, or an issue substantially similar, to the one which respondent seeks now to raise in the amended answer. The opinion totally ignores the sequence of events. The statutory notice was mailed on June 14,1982, and the petition was filed on July 7, 1982. Respondent, however, chose to wait until November 29, 1982, to advise petitioners informally of his error. His motion for leave to amend his answer was not filed until April 5, 1983. In the interim, petitioners have incurred substantial expense. Perhaps if respondent, in a timely filed answer, had conceded that the statutory notice was erroneous and had raised the issue which respondent now seeks to raise, the majority’s action would at least be defensible. But I cannot justify now excusing respondent’s gross negligence in the issuance of the statutory notice, compounded by the long delay in placing before petitioners and this Court the proper issue.
Rule 41(a) directs that leave to amend "shall be given freely when justice so requires.” I would hold that justice requires that we decline to grant leave to amend. Respondent’s actions warrant more than a mere slap on the wrist. I would deny the motion for leave to amend the answer and grant petitioners’ motion for summary judgment.
Wilbur, Korner, and Hamblen, JJ., agree with this concurring and dissenting opinion.