Gillies v. CIR

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 14, 2021
• Docket: 21-9000
• Status: Unpublished

Opinion

Appellate Case: 21-9000 Document: 010110618737 Date Filed: 12/14/2021 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 14, 2021 _________________________________ Christopher M. Wolpert Clerk of Court TOI GILLIES,

Petitioner - Appellant,

v. No. 21-9000 (CIR No. 12010-20) COMMISSIONER OF INTERNAL (United States Tax Court) REVENUE,

Respondent - Appellee. _________________________________

ORDER AND JUDGMENT* _________________________________

Before HARTZ, McHUGH, and CARSON, Circuit Judges. _________________________________

Toi Gillies filed a petition in the Tax Court alleging that she was a victim of

tax fraud and identity theft by her ex-husband and tax return preparer. The Tax Court

dismissed the petition for lack of jurisdiction. Appearing pro se, she appeals that

order. We have jurisdiction under 26 U.S.C. § 7482(a)(1), and we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Appellate Case: 21-9000 Document: 010110618737 Date Filed: 12/14/2021 Page: 2

I. Background

Ms. Gillies’s petition appeared to reference taxable years 2016 through 2019

as the periods in dispute, but she did not provide the date of any notices of deficiency

or liability determination she was disputing or identify the taxable years for which

such notices were issued. She also did not attach any notices of deficiency or

determination to her petition. Based on those and other deficiencies in the petition,

the Commissioner filed a motion for a more definite statement pursuant to Tax Court

Rule 51(a).

The Tax Court granted the motion and, as pertinent here, ordered Ms. Gillies

to (1) “file . . . a proper amended petition” that includes the dates of the notices of

deficiency or determination being disputed and the taxable years for which they were

issued, and (2) attach a copy of each disputed notice she relied on as the basis for the

court’s jurisdiction over the petition. R. at 23.

About two weeks later, Ms. Gillies filed a response to the Commissioner’s

motion, arguing that her petition was not deficient and asserting that, because the

Commissioner had or would “have by the time of trial and initial disclosures[] all the

information necessary to understand the nature of [her] allegations,” a more definite

statement was unnecessary. R. at 26-27. She also maintained that the “demand [for]

. . . supporting documents” inappropriately “require[d] expansion of the pleadings . . .

when discovery [was] the proper method for obtaining information.” R. at 28

(internal quotation marks omitted). She attached an amended petition to her

response, but it, like her original petition, did not provide copies of any notices of

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deficiency or determination issued to her. The amended petition acknowledged that

she had not been issued a notice of deficiency or determination for the 2017 and 2018

tax years, did not address whether she had been issued a notice for the 2019 tax year,

and indicated that she had been issued a notice for the 2016 tax year but did not

attach a copy of the notice.

On the court-ordered deadline for filing a proper amended petition, the

Commissioner filed a status report acknowledging and attaching Ms. Gillies’s

response and amended petition and advising the court that she had filed nothing

further in response to the court’s order.

The court subsequently dismissed the petition for lack of jurisdiction,

explaining that Ms. Gillies had not filed a “proper amended petition suggesting any

basis for [the court’s] jurisdiction[.]” R. at 53. This appeal followed.

II. Discussion

A. Standard of Review

Because Ms. Gillies is pro se, we have construed her filings liberally. See

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).

Whether the Tax Court correctly dismissed a petition for lack of jurisdiction is

a mixed question of law and fact. See Anderson v. Comm’r, 62 F.3d 1266, 1270

(10th Cir. 1995). We review the Tax Court’s factual findings for clear error and its

legal conclusions de novo. Id.

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B. Tax Court Jurisdiction

“The Tax Court is a court of limited jurisdiction.” Alford v. Comm’r, 800 F.2d

987, 988 (10th Cir. 1986). The party invoking the Tax Court’s jurisdiction has the

burden of establishing that the jurisdictional requirements have been met. Page v.

Comm’r, 297 F.2d 733, 734 (8th Cir. 1962) (per curiam); Amanda Iris Gluck

Irrevocable Tr. v. Comm’r, 154 T.C. 259, 264-65 (2020).

As pertinent here, a taxpayer may invoke the Tax Court’s jurisdiction in one of

two ways—by filing a petition disputing a notice of deficiency, see 26 U.S.C.

§ 6212(a), or by filing a petition challenging a notice of determination following a

collection due process hearing, see id. § 6330(d)(1).

In a deficiency proceeding, “the determination of a deficiency and the issuance

of a notice of deficiency are absolute preconditions to Tax Court jurisdiction.”

Alford, 800 F.2d at 988; see also 26 U.S.C. § 6214(a) (providing that the Tax Court

has jurisdiction to redetermine the correct amount of any deficiency); Tax Ct.

R. 13(a) (providing that subject to exceptions not applicable here, “the jurisdiction of

the Court depends . . . upon the issuance by the Commissioner of a notice of

deficiency”). The notice of deficiency is thus the taxpayer’s “ticket” to the Tax

Court. Guthrie v. Sawyer, 970 F.2d 733, 735 (10th Cir. 1992) (internal quotation

marks omitted). In the same way, the notice of determination is a “ticket” to the Tax

Court for reviewing a collection due process determination. See Boyd v. Comm’r,

124 T.C. 296, 303 (2005), aff’d, 451 F.3d 8, 10 n.1 (1st Cir. 2006) (recognizing that

the Tax Court’s “jurisdiction under § 6330(d) depends upon the issuance of a valid

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notice of determination” (internal quotation marks omitted)). Thus, to meet her

burden of establishing the Tax Court’s jurisdiction, the taxpayer in both deficiency

and collection due process proceedings must plead the date of the notice of

deficiency or determination, see Tax Ct. R. 34(b)(2), 331(b)(2), and submit a copy of

the notice with the petition, id. R. 34(b)(8), 331(b)(8).

C. Application

The Tax Court dismissed Ms. Gillies’s petition for lack of jurisdiction because

she did not establish that the Commissioner had issued her a notice of deficiency or

determination. Accordingly, it did not address the merits of her identity theft

allegations. On appeal, Ms. Gillies does not address the Tax Court’s jurisdictional

determination, focusing instead on the merits of her underlying claims and alleging

that the Tax Court erred by failing to address them.

The Tax Court’s order granting the Commissioner’s motion for a more definite

statement directed Ms. Gillies to submit a “proper amended petition” that, among

other things, provided copies of the notices of deficiency or determination she was

relying on as the basis for the court’s jurisdiction, but she failed to do so. R. at 23.

We thus agree with the Tax Court’s determination that she did not establish the basis

for the court’s jurisdiction, and we find no error in its dismissal of her petition for

lack of jurisdiction. See Alford, 800 F.2d at 988-89 (affirming Tax Court dismissal

of petition in § 6212 proceeding for lack of jurisdiction where no notice of deficiency

was issued); see also Boyd v. Comm’r, 451 F.3d 8, 10-11 (1st Cir. 2006) (affirming

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Tax Court dismissal of petition in § 6330 proceeding for lack of jurisdiction where no

notice of determination was filed).

In so concluding, we reject Ms. Gillies’s contention that the Tax Court did not

consider her amended petition. In the dismissal order, the court noted that she had

“filed a response to the motion for more definite statement,” and it concluded she had

not filed a “proper amended petition as directed by the Court.” R. at 53. Contrary to

Ms. Gillies’s contention, the court’s finding that she did not file a “proper amended

petition” does not suggest it did not receive or consider her amended petition.

Rather, the court acknowledged her filing and found that the amended petition was

not “proper”—in other words, it did not comply with the applicable rules or the

court’s order and did not establish a basis for the court’s jurisdiction. Id.

We acknowledge that Ms. Gillies attached two letters she received from the

Internal Revenue Service to her opening brief, which she claims served as a notice of

deficiency for the 2016 tax year. See Aplt. Opening Br. at 19, 27-31. But she did not

attach the letters to her original or amended petition, so they were not before the Tax

Court when it issued the dismissal order. Accordingly, we may not consider them as

a basis for overturning that order. See Verlo v. Martinez, 820 F.3d 1113, 1125

(10th Cir. 2016) (explaining that we will not find error based on evidence that was

not part of the record below); United States v. Kennedy, 225 F.3d 1187, 1191

(10th Cir. 2000) (explaining that we “will not consider material outside the record

before the [lower] court” and that the parties may not “build a new record” on appeal

(internal quotation marks omitted)); Fed. R. App. P. 10(a)(1) (providing, as pertinent

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here, that the record on appeal consists of “the original papers and exhibits filed in

the” court from which the appeal is taken).

In any event, the letters merely advised Ms. Gillies of changes the IRS had

made to her 2016 tax return and of the resultant proposed tax increase—they did not

suggest the IRS had made a determination of her tax deficiency. Indeed, the second

letter expressly indicated that if she did not respond, the IRS “[would] issue a notice

of deficiency” that “[would] be legal notice of the proposed tax increase,” and it

advised her that if she “decide[d] to appeal the proposed tax increase after [the IRS]

issue[d] the deficiency notice, [she would] have to file a petition with the United

States Tax Court.” Aplt. Opening Br. at 31 (emphasis added). Accordingly, the

letters were not a notice of deficiency that could have invoked the Tax Court’s

jurisdiction. See Abrams v. Comm’r, 814 F.2d 1356, 1357 (9th Cir. 1987) (per

curiam) (joining six other circuits in holding that a pre-filing notification letter from

the IRS was not a notice of deficiency and was therefore not a basis for Tax Court

jurisdiction).

Having concluded that the Tax Court properly dismissed Ms. Gillies’s petition

for lack of jurisdiction, we do not address her arguments regarding the merits of her

identity theft and related innocent spouse claims.

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III. Conclusion

We affirm the Tax Court’s order dismissing Ms. Gillies’s petition for lack of

jurisdiction.

Entered for the Court

Carolyn B. McHugh Circuit Judge