Michael Gorrio v. Commissioner of Internal Revenue

• Court: Court of Appeals for the Third Circuit
• Decided: May 9, 2025
• Docket: 25-1206
• Status: Unpublished

Opinion

BLD-139 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 25-1206 ___________

MICHAEL GORRIO, Appellant

v.

COMMISSIONER OF INTERNAL REVENUE ____________________________________

On Appeal from the United States Tax Court (U.S. Tax Court No. 24-4299) Tax Court Chief Judge: Honorable Kathleen Kerrigan ____________________________________

Submitted on Appellee’s Motion for Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6 May 1, 2025 Before: SHWARTZ, MATEY, and CHUNG, Circuit Judges

(Opinion filed: May 9, 2025) _________

OPINION * _________

PER CURIAM

Michael Gorrio appeals pro se from an order of the United States Tax Court

dismissing his amended petition for lack of subject matter jurisdiction. The

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Commissioner of Internal Revenue (the “Commissioner”) has filed a motion to

summarily affirm the Tax Court’s order. For the reasons that follow, we will grant the

motion.

In July 2024, Gorrio filed an amended pro se petition in the United States Tax

Court against the Commissioner. His two-page form amended petition checked boxes

indicating that he was disputing a Notice of Determination Concerning Collection Action

and a Notice of Final Determination for Disallowance of Interest Abatement. The

petition alleged that he had been assigned two social security numbers at birth, and that

taxes were improperly and fraudulently collected from both of those numbers.

The Commissioner filed a motion to dismiss for lack of subject matter jurisdiction,

as Gorrio did not indicate any specific tax year that he was disputing, nor did he attach

any notice issued by the Commissioner. The Commissioner also represented that, after a

search of records for the taxable years 2018 through 2023, there was no record of the

specific notices Gorrio sought to challenge, nor was there any other record that would

give the Tax Court jurisdiction over Gorrio’s amended petition. Gorrio filed an

opposition, which again did not indicate any specific tax year that he was disputing and

did not attach any notice issued by the Commissioner. Instead, Gorrio attached two

filings, from his 2012 criminal court proceedings in Allegheny County, which list slightly

different (by one digit) social security numbers in his biographical information.

2 The Tax Court concluded that it lacked jurisdiction to review the amended petition

and entered an order dismissing the case. Gorrio timely appealed. The Commissioner

has filed a motion to summarily affirm the Tax Court’s order.

We have jurisdiction under 26 U.S.C. § 7482(a)(1). We review the Tax Court’s

dismissal for lack of jurisdiction de novo, and we review its factual findings for clear

error. Culp v. Comm’r, 75 F.4th 196, 200 (3d Cir. 2023). We may take summary action

if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.

10.6.

The Tax Court’s jurisdiction is limited to what is expressly authorized by

Congress. See 26 U.S.C. § 7442; Sunoco Inc. v. Comm’r, 663 F.3d 181, 187 (3d Cir.

2011). The party asserting Tax Court jurisdiction has the burden to establish it. See

Shands v. Comm’r, 111 F.4th 1, 7 (D.C. Cir. 2024). Congress has provided the Tax

Court with jurisdiction to review the IRS’s collection activities, but only after the IRS

issues a notice of determination. See 26 U.S.C. § 6330(d); Adolphson v. Comm’r, 842

F.3d 478, 480 (7th Cir. 2016); Weber v. Comm’r, 122 T.C. 258, 263 (2004) (describing

notice of determination as taxpayer’s “ticket” to the Tax Court). Similarly, the Tax Court

has jurisdiction to review a decision not to abate interest, but only after the IRS has

issued a notice of a determination not to abate interest or has failed to act on an

administrative request for abatement within 180 days. See 26 U.S.C. § 6404(h); Ahmed

v. Comm’r, 64 F.4th 477, 486–87 (3d Cir. 2023); Williams v. Comm’r, 131 T.C. 54, 56

(2008).

3 Here, there is no substantial question that Gorrio failed to establish any basis for

the Tax Court to exercise jurisdiction under those provisions or any other provision.

Gorrio never identified the tax year(s) that he was disputing, let alone provided any

evidence that he was ever issued a notice of determination for collection activities or a

notice of a determination not to abate interest. Absent such a showing, Gorrio did not

meet his burden to establish that the Tax Court had jurisdiction over his amended

petition, see Shands, 111 F.4th at 7, and the Tax Court properly dismissed it.

Accordingly, we will grant the Commissioner’s motion and summarily affirm the

Tax Court’s judgment.