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Full Opinion
T.C. Memo. 1995-545
UNITED STATES TAX COURT
ESTATE OF DORIS L. RICKMAN, DECEASED,
DORIS K. RICKMAN, EXECUTRIX, Petitioner, v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket. No. 13468-94. Filed November 16, 1995.
T. Scott Tufts, for petitioner.
James E. Gray, for respondent.
MEMORANDUM OPINION
ARMEN, Special Trial Judge: This case is before the Court
on petitioner's Motion to Dismiss for Lack of Jurisdiction, as
Amended, and petitioner's Motion to Strike. The issue for
decision concerns the validity of the notice of deficiency issued
in this case and whether respondent "determined" a deficiency in
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petitioner's Federal estate tax within the meaning of section
6212(a).1
Background
Petitioner is the Estate of Doris L. Rickman. Doris L.
Rickman (decedent) died on October 24, 1990, in Franklin,
Georgia. Decedent's husband, James R. Rickman, died on October
19, 1990, 5 days before decedent died.
Doris K. Rickman, decedent's daughter, was duly appointed
executrix of the decedent's estate under letters testamentary
issued by the clerk of the Superior Court of Macon County, North
Carolina, on October 30, 1990.2 Doris K. Rickman is also the
duly appointed executrix of the Estate of James R. Rickman. At
the time the petition herein was filed, Doris K. Rickman resided
in Franklin, North Carolina.
On or about March 22, 1991, Doris K. Rickman filed separate
Forms 709 (United States Gift Tax Return) on behalf of both James
R. Rickman (Mr. Rickman) and decedent for the taxable years
ending on the date of their deaths. Schedule A of Form 709 filed
on behalf of Mr. Rickman lists the following gifts:
1
All section references are to the Internal Revenue Code,
as amended, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
2
The record in this case indicates that Doris K. Rickman
is also known as Kaye Rickman.
- 3 -
Donee Date Amount
1. Doris K. Rickman 1/1/90 $10,000
10/16/90 227,583
2. Janet R. Tipton 10/16/90 207,583
10/16/90 16,255
3. James O. Tipton 10/16/90 20,000
Janet R. Tipton and James O. Tipton are identified as decedent
and Mr. Rickman's daughter and son-in-law, respectively.
Form 709, lines 12 through 18, permit a taxpayer to elect to
split gifts with his or her spouse as prescribed under section
2513; i.e., to have gifts made by the taxpayer and his spouse to
third parties during the calendar year considered as made one-
half by each. Lines 12 through 17 of the Form 709 filed on
behalf of Mr. Rickman indicate that gifts made by Mr. Rickman
during the taxable period would be split with decedent. In
particular, decedent is identified by name and Social Security
number, and it is acknowledged that Mr. Rickman was married to
decedent during the taxable period, and that a gift tax return
will be filed by decedent for the same period. However, line 18,
which provides space for decedent's signature signifying her
consent to the gift-splitting election, was not signed on
decedent's behalf. The only marks on line 18 are the handwritten
letters "SRB".3
3
Although the parties agree that the letters "SRB" were
entered by one of respondent's examiners, they disagree as to
their meaning. Respondent contends that the letters signify that
the spouse's return is in the same batch of returns as the return
(continued...)
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The Schedule A of Form 709 filed on behalf of decedent lists
the following gifts:
Donee Date Value
1. Doris K. Rickman 3/22/90 $10,000
2. Janet R. Tipton 3/22/90 $10,000
Lines 12 through 18 of the Form 709 filed on behalf of decedent
indicate that gifts made by decedent during the taxable period
would be split with Mr. Rickman. Line 18 of the Form 709 is
signed "Kaye Rickman, Executrix".
During July 1991, Doris K. Rickman filed separate Forms 706
(United States Estate Tax Return) on behalf of both the Estate of
James R. Rickman and petitioner. Schedule A of Form 706 filed on
behalf of the Estate of James R. Rickman lists 7 parcels of real
estate included in the gross estate as follows:
Description Value at date of death
1 LOT AND BRICK HOME $59,500
86 GOLFVIEW DRIVE; FRANKLIN, N.C.
VALUE BASED ON APPRAISAL, COPY
WHICH IS ATTACHED
1 LOT AND BRICK HOME $135,500
92 GOLFVIEW DRIVE; FRANKLIN, N.C.
VALUE BASED ON APPRAISAL, COPY
WHICH IS ATTACHED
1 LOT AND BRICK HOME $47,000
96 GOLFVIEW DRIVE; FRANKLIN, N.C.
3
(...continued)
under examination. In contrast, petitioner contends that the
letters serve as an instruction to send the return back to the
return preparer.
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VALUE BASED ON APPRAISAL, COPY
WHICH IS ATTACHED
1 LOT; PALMER STREET BUILDING $250,000
FRANKLIN, N.C. VALUE BASED ON
APPRAISAL, COPY WHICH IS ATTACHED
3 ACRES; ROAD 1314; FRANKLIN, N.C. $17,520
VALUE BASED ON CURRENT YEAR
COUNTY APPRAISAL
3 ACRES; CARSON PROPERTY; ROAD 1315 $17,520
FRANKLIN, N.C. VALUE BASED ON
CURRENT YEAR COUNTY APPRAISAL
2.25 ACRES; ROAD 1164; FRANKLIN, N.C. $10,260
VALUE BASED ON CURRENT YEAR
COUNTY APPRAISAL.
The Form 706 filed on behalf of the Estate of James R. Rickman
includes a statement that his entire estate passed to decedent
(Doris L. Rickman) outright.
The Form 706 filed on behalf of petitioner includes a
Schedule A identical in all respects to the Schedule A included
with the Form 706 filed on behalf of the Estate of James R.
Rickman. Line 4 on the Form 706 filed on behalf of petitioner,
relating to the amount of adjusted taxable gifts, is blank.
On May 20, 1994, respondent issued a notice of deficiency
addressed to the Estate of Doris L. Rickman, Deceased, Doris K.
Rickman, in care of T. Scott Tufts, petitioner's counsel. The
notice of deficiency sets forth respondent's determination of a
deficiency in petitioner's Federal estate tax in the amount of
$190,785. There is no dispute that the notice of deficiency
- 6 -
lists decedent's correct Social Security number and date of
death.
The notice of deficiency includes an explanation of
adjustments which states:
(a) The decedent and her spouse filed Federal Gift Tax
Returns for the period ending December 31, 1990, and elected
to split the gifts made by each to third parties. The gift
tax returns did not correctly reflect this election. The
adjusted taxable gift of the decedent is determined to be
$85,711.00, rather than zero as reported at Line 4 of Page 1
of the Federal Estate Tax Return. Exhibits A and B of this
notice indicate how the gift tax returns should have been
filed. The corrections to the gift tax returns include the
determination that all gifts by both donors must be split
and that the gifts reported by the decedent's spouse were
overstated because a portion of the spouse's gifts were
incomplete and should not have been reported. See Item (i)
of this notice for a related adjustment.
Accordingly, the taxable estate is increased $85,711.00.
(b) On the controlling valuation date (date of decedent's
death) the fair market value of the real property identified
at Item 1 of Schedule A of the Federal Estate Tax Return was
$74,500, rather than $59,500.00 as reported.
Accordingly, the taxable estate is increased $15,000.
(c) On the controlling valuation date the fair market value
of the real property identified at Item 3 of Schedule A was
$61,000, rather than $47,000.00 as reported.
Accordingly, the taxable estate is increased $14,000.
(d) On the controlling valuation date the fair market value
of the real property identified at Item 4 of Schedule A was
$311,580, rather than $250,000.00 as reported.
Accordingly, the taxable estate is increased $61,580.00.
(e) On the controlling valuation date the fair market value
of the real property identified at Item 5 of Schedule A was
$16,430, rather than $17,520.00 as reported.
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Accordingly, the taxable estate is decreased $1,090.00.
(f) On the controlling valuation date the fair market value
of the real property identified at Item 6 of Schedule A was
$23,520, rather than $17,520.00 as reported.
Accordingly, the taxable estate is increased $5,750.00.
(g) On the controlling valuation date the fair market value
of the real property identified at Item 7 of Schedule A was
$16,000, rather than $10,260.00 as reported.
Accordingly, the taxable estate is increased $5,740.00.
(h) When the decedent died she was the sole heir of her
predeceased spouse, James R. Rickman, who died on October
19, 1990. On August 8, 1990, James R. Rickman transferred
$20,000.00 to Janet and James O. Tipton by a check which
indicated that such funds were a loan on a home. It is
determined that this note was part of the estate of James R.
Rickman which passed to the decedent and that the such loan
is included in her gross estate.
Accordingly, the taxable estate is increased $20,000.00.
(i) When the decedent died she was the sole heir of her
predeceased spouse, James R. Rickman, who died on October
19, 1990. On August 17, 1990, James R. Rickman directed the
First Union National Bank of North Carolina to transfer two
U.S. Treasury Notes totalling $300,000 to Kaye Rickman,
Janet Tipton and James Tipton. James R. Rickman died before
the bank transferred the Treasury Notes to the designated
donees. Therefore, the Treasury Notes were part of the
estate of James R. Rickman which passed to the decedent and
the value of the Treasury Notes are included in her gross
estate.
Accordingly, the taxable estate is increased
$300,000.00.
The parties agree that exhibits A and B referred to in paragraph
(a) of the explanation of adjustments were not attached to the
notice of deficiency that was sent to petitioner. Respondent
also concedes that there are two errors in the second sentence of
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paragraph (i) of the explanation of adjustments. In particular,
respondent admits that the second sentence should have read: "On
October 17, 1990, James R. Rickman directed the First Union
Brokerage Services of North Carolina to transfer two U.S.
Treasury Notes totalling $300,000 to Kaye Rickman, Janet Tipton
and James Tipton." (Emphasis added.)
In response to the notice of deficiency, petitioner filed a
timely petition for redetermination with this Court. Shortly
after respondent filed her answer to the petition, the parties
became embroiled in both a discovery dispute and a disagreement
over whether either party should be granted leave to file an
amendment to their initial pleading. A hearing was scheduled in
Washington, D.C., on June 28, 1995, for the purpose of resolving
five pending motions stemming from these particular disputes. On
the eve of this hearing, petitioner filed both a Motion to
Dismiss for Lack of Jurisdiction and a Motion for Summary
Judgment.4
In the meantime, by letter dated June 22, 1995, Doris K.
Rickman wrote to the Internal Revenue Service District Director
in Greensboro, North Carolina, and requested a written statement
pursuant to section 7517 explaining the property valuations
4
Although the June 28, 1995, hearing was conducted as
scheduled, the Court decided to reserve ruling on the various
collateral matters in dispute in favor of first ruling on the
jurisdictional issue raised in petitioner's motion to dismiss.
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determined by respondent in the notice of deficiency that was
issued to petitioner. Although it does not appear that the
District Director responded to this request, we observe that
petitioner's counsel was apparently provided with a copy of the
revenue agent's report on or about July 27, 1995.
Petitioner's motion to dismiss for lack of jurisdiction is
premised on the theory that the notice of deficiency is invalid
on the ground that respondent failed to make a valid
"determination" as required by Scar v. Commissioner, 814 F.2d
1363 (9th Cir. 1987), revg. 81 T.C. 855 (1983). Petitioner
subsequently filed an amendment to its motion to dismiss.
Relying primarily on Durkin v. Commissioner, 87 T.C. 1329, 1402
(1986), affd. 872 F.2d 1271 (7th Cir. 1989), and Pearce v.
Commissioner, 95 T.C. 250 (1990), revd. without published opinion
946 F.2d 1543 (5th Cir. 1991), petitioner contends that the
notice of deficiency should be declared invalid on the grounds
that each of the adjustments set forth therein is without merit
and reflects the "gross ineptitude" of the persons involved in
preparing the notice.
Respondent filed an objection to petitioner's motion to
dismiss. Respondent maintains that the adjustments set forth in
the notice of deficiency were determined based upon a review of
petitioner's estate tax return, and, therefore, the notice of
deficiency is valid under Scar v. Commissioner, supra. Attached
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as exhibits A and B to respondent's objection are the two
exhibits (referred to in paragraph (a) of the explanation of
adjustments portion of the notice of deficiency) that respondent
failed to attach to the notice of deficiency issued to
petitioner.5
Petitioner subsequently filed a Motion to Strike specific
portions of respondent's objection. In particular, petitioner
requests that we strike any reference to exhibits A and B
attached to respondent's objection on the ground that petitioner
was prejudiced by the fact that those exhibits were not attached
to the notice of deficiency.6 Petitioner further moves to strike
that portion of respondent's objection in which respondent refers
to the issue that respondent seeks to place in dispute by way of
her pending Motion for Leave to File Amendment to Answer.
Upon due consideration of the foregoing matter, we fail to
see any meaningful prejudice to petitioner in respect of the
concerns expressed in its Motion to Strike. Consequently, and in
view of the action that we propose to take in respect of
5
The two exhibits in question are separate Forms 3233
(Report of Gift Tax Examination Changes) prepared by an Internal
Revenue Service examiner relating to a review of the previously
mentioned gift tax returns filed on behalf of decedent and Mr.
Rickman.
6
Although not particularly relevant to the jurisdictional
issue to be decided, we note that counsel for petitioner disputes
representations appearing in the Reports of Gift Tax Examination
Changes that the reports either were discussed with him or that
he agreed with the adjustments set forth therein.
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petitioner's motion to dismiss for lack of jurisdiction, we shall
deny petitioner's Motion to Strike.
A second hearing was conducted in this case, again in
Washington, D.C., on September 13, 1995. Counsel for both
parties appeared at the hearing and presented argument in respect
of petitioner's motion to dismiss. During the course of the
hearing, petitioner's counsel raised an issue whether
respondent's failure to comply with section 7517 provides an
alternative ground for holding the notice of deficiency invalid.7
Discussion
The issue to be decided is whether the notice of deficiency
issued in this case is invalid on the ground that respondent
failed to make a determination within the meaning of section
6212(a). As explained in greater detail below, we agree with
respondent that the notice of deficiency is valid.
This Court's jurisdiction to redetermine a deficiency
depends upon the issuance of a valid notice of deficiency and a
timely filed petition. Rule 13(a), (c); Levitt v. Commissioner,
97 T.C. 437, 441 (1991); Monge v. Commissioner, 93 T.C. 22, 27
(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).
7
At present, there are no fewer than eight motions pending
in this case. Regrettably, and despite a legal file now
comprised of four thick volumes, little or nothing has been done
in the way of preparing this case for trial. At this particular
juncture in the proceedings, this case serves as an excellent
illustration of petty bickering and unnecessary quarrelsomeness.
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Section 6212(a) expressly authorizes respondent, after
determining a deficiency, to send a notice of deficiency to the
taxpayer by certified or registered mail.
At a minimum, a notice of deficiency must indicate that
respondent has determined a deficiency in tax in a definite
amount for a particular taxable year and that respondent intends
to assess the tax in due course. Olsen v. Helvering, 88 F.2d
650, 651 (2d Cir. 1937); Perlmutter v. Commissioner, 44 T.C. 382,
400 (1965), affd. 373 F.2d 45 (10th Cir. 1967). Although section
7522(a) provides the general rule that a notice of deficiency
shall describe the basis for, and identify the amounts (if any)
of tax due, an inadequate description shall not invalidate the
notice under that provision.
In Scar v. Commissioner, 814 F.2d 1363 (9th Cir. 1987),
revg. 81 T.C. 855 (1983), the taxpayers, after receiving a notice
of deficiency that disallowed a deduction from a partnership with
which the taxpayers had no connection, argued that the
Commissioner failed to determine a deficiency as contemplated
under section 6212(a). A review of various statements attached
to the notice of deficiency revealed that the Commissioner had
issued the notice without reviewing the taxpayers' tax return
(which admittedly had been filed). Further, the Commissioner
admitted to having done so "to protect the government's
interest". Scar v. Commissioner, supra at 1365.
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After invoking this Court's jurisdiction, the taxpayers
filed a motion to dismiss for lack of jurisdiction. We held the
notice of deficiency to be valid and denied the taxpayers' motion
to dismiss. Scar v. Commissioner, 81 T.C. 855 (1983).
In analyzing the issue on appeal, the Court of Appeals for
the Ninth Circuit concluded that the Commissioner must consider
information relating to a particular taxpayer before it can be
said that the Commissioner determined a deficiency with respect
to that taxpayer. Scar v. Commissioner, 814 F.2d at 1368. With
this standard in mind, the court found the notice of deficiency
to be invalid under section 6212(a) because the notice on its
face revealed that the Commissioner had not reviewed the
taxpayers' return or otherwise made a determination respecting
the taxpayers' liability for the particular taxable year. Scar
v. Commissioner, supra at 1370.
Significantly, the courts applying Scar, including both this
Court and the Court of Appeals for the Ninth Circuit, have
limited the rule established in that case to its facts. See
Sealy Power, Ltd. v. Commissioner, 46 F.3d 382, 387-388 (5th Cir.
1995); Kantor v. Commissioner, 998 F.2d 1514, 1521-1522 (9th Cir.
1993); Clapp v. Commissioner, 875 F.2d 1396, 1402 (9th Cir.
1989); Campbell v. Commissioner, 90 T.C. 110, 114-115 (1988);
Pope & Associates, P.C. v. Commissioner, T.C. Memo. 1995-213;
Burnside v. Commissioner, T.C. Memo. 1994-308; Stinnett v.
- 14 -
Commissioner, T.C. Memo. 1993-429. Simply stated, the rule set
forth in Scar v. Commissioner, supra, applies in the narrow set
of circumstances where the notice of deficiency on its face
reveals that respondent failed to make a determination.
The following excerpt from Kantor v. Commissioner, supra,
reflects the Court of Appeals for the Ninth Circuit's view of the
applicability of Scar.
Before issuing a notice of deficiency pursuant to
26 U.S.C. [sec.] 6212(a), the Commissioner must make an
actual determination of the taxpayer's liability.
Scar, 814 F.2d at 1370. As a general rule, however, we
will not "look behind a deficiency notice to question
the Commissioner's motives and procedures leading to a
determination." Id. at 1368.
We recognized an exception to this rule in Scar,
where the notice of deficiency revealed on its face
that a determination had not been made using the
taxpayer's return. Id. * * *
We later emphasized in Clapp v. Commissioner,
however, that the kind of review exercised in Scar is
applicable "[o]nly where the notice of deficiency
reveals on its face that the Commissioner failed to
make a determination." 875 F.2d at 1402 (emphasis
added). In Clapp, we determined that the notices of
deficiency were adequate to establish jurisdiction
where they indicated various adjustments to income and
the fact that these adjustments were based upon the
disallowance of deductions. The taxpayers in Clapp
attempted to show that the Commissioner had not made an
actual determination of their deficiency by introducing
internal IRS documents which suggested that at the time
the notices were issued, the IRS had not decided which
legal theory it would rely upon to secure a deficiency
judgment. We nevertheless refused to question the
Commissioner's determination because there was no
indication on the face of the notices that a
determination had not been made. Id. at 1400-01. The
disallowed deductions did not refer to unrelated
entities, nor had the tax rate been arbitrarily set.
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After reviewing appellant's 1981 notice of
deficiency, we conclude that it was sufficient to
establish jurisdiction. The notice clearly indicates
that appellants' PCS, Ltd., pass-through deduction of
$12,500 was being disallowed, that their tax was being
recomputed, and that a negligence penalty was being
imposed. There is neither blatant error nor any
statement which would suggest that the Commissioner had
not made a determination using appellants' tax return.
Kantor v. Commissioner, supra at 1521-1522.
Applying the principles discussed in Kantor v. Commissioner,
and by this Court in Campbell v. Commissioner, supra, to the
notice of deficiency issued to petitioner in the present case, we
are not convinced, as petitioner contends, that respondent failed
to make the requisite determination. There is no dispute that
the notice of deficiency relates to the decedent's estate and
that respondent correctly listed the decedent's social security
number. It is also evident that respondent's determination of a
deficiency in petitioner's Federal estate tax derived from a
review of both the estate tax and gift tax returns filed on
behalf of both petitioner and the Estate of James R. Rickman.
Specifically, we need go no further than to point out that the
valuation adjustments in respect of the 6 parcels of real estate
set forth in the notice of deficiency directly coincide with real
estate reported on petitioner's estate tax return. In sum, the
evidence is irrefutable that respondent examined petitioner's
estate tax return.
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Petitioner contends that respondent failed to make a
determination as required under section 6212(a) on the grounds:
(1) The adjustment described in paragraph (a) of the explanation
of adjustments was not adequately supported due to respondent's
failure to attach exhibits A and B referred to therein to the
notice of deficiency; (2) the valuation adjustments in respect of
the real estate listed on petitioner's return are purportedly
based on local real estate tax assessments for 1991 (as opposed
to 1990); (3) the adjustment described in paragraph (h) of the
explanation of adjustments has no basis in law or fact; and (4)
the adjustment described in paragraph (i) of the explanation of
adjustments contains certain errors in respect of both the date
of the transfer in question and the identity of the financial
institution involved in the transfer. In short, we are not
impressed with any of these contentions. Taking the notice of
deficiency as a whole, the errors and flaws that petitioner
relies on, while perhaps causing minor confusion, do not
demonstrate that respondent failed to make the requisite
"determination" contemplated by section 6212(a). See Mayerson v.
Commissioner, 47 T.C. 340, 348-349 (1966); Saint Paul Bottling
Co. v. Commissioner, 34 T.C. 1137 (1960).
We likewise reject petitioner's invitation to "carve out a
narrow extension of Scar", to be applied in cases involving so-
- 17 -
called "gross ineptitude".8 In our view, an extension of Scar in
this manner would, as a general rule, directly conflict with the
well-settled rule that, absent extraordinary circumstances, we
will not look behind a notice of deficiency. Riland v.
Commissioner, 79 T.C. 185, 201 (1982); Jackson v. Commissioner,
73 T.C. 394, 400 (1979); Greenberg's Express, Inc. v.
Commissioner, 62 T.C. 324, 327-328 (1974). We fail to see any
extraordinary circumstances in the present case justifying a
probe into respondent's motives and procedures leading to the
issuance of the notice of deficiency.
In addition to arguing that the notice of deficiency is
invalid under Scar, petitioner maintains that the notice of
deficiency might be deemed invalid by virtue of respondent's
failure to comply with section 7517. Section 7517, enacted as
section 2008(a)(1) of the Tax Reform Act of 1976, Pub. L. 94-455,
90 Stat. 1520, 1891, provides in pertinent part:
(a) General Rule.--If the Secretary makes a
determination or a proposed determination of the value
of an item of property for purposes of the tax imposed
under chapter 11, 12, or 13, he shall furnish, on the
written request of the executor, donor, or the person
required to make the return of the tax imposed by
chapter 13 (as the case may be), to such executor,
8
Petitioner's reliance on Pearce v. Commissioner, 95 T.C.
250 (1990), revd. without published opinion 946 F.2d 1543 (5th
Cir. 1991), is misplaced. For the reasons explained in Stinnett
v. Commissioner, T.C. Memo. 1993-429, we shall not reconsider our
opinion in Pearce v. Commissioner, supra, or its reversal by the
Fifth Circuit, in deciding this case. See 5th Cir. R. 47.5.1,
47.5.2, 47.5.3.
- 18 -
donor, or person a written statement containing the
material required by subsection (b). Such statement
shall be furnished not later than 45 days after the
later of the date of such request or the date of such
determination or proposed determination.
(b) Contents of Statement.--A statement required
to be furnished under subsection (a) with respect to
the value of an item of property shall--
(1) explain the basis on which the valuation was
determined or proposed,
(2) set forth any computation used in arriving
at such value, and
(3) contain a copy of any expert appraisal made
by or for the Secretary.
Initially, we find it significant that section 7517 does not
include an enforcement mechanism. Although petitioner has
suggested that respondent's failure to comply with section 7517
may provide grounds for holding the notice of deficiency invalid,
petitioner has failed to cite any authority for this proposition
and we are aware of none. In the absence of express language
declaring that a notice of deficiency will be deemed invalid as a
consequence of respondent's failure to comply with a written
request under section 7517, we will not graft such an extreme
remedy onto the provision.9
9
On the whole, petitioner's reliance on sec. 7517 seems
superficial. Although the District Director may not have
responded to petitioner's request pursuant to sec. 7517, we note
that petitioner's counsel was apparently provided with a copy of
the revenue agent's report on or about July 27, 1995. Moreover,
our Rules provide the means for petitioner to obtain such
information either through the required informal exchange of
(continued...)
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Finally, we observe that Congress has provided adequate
remedies for taxpayers confronted with an inaccurate deficiency
determination. In light of remedies such as shifting the burden
of proof to respondent and/or awarding litigation costs,
petitioner's call for an expanded substantive review of the
matters leading to respondent's determination is unwarranted.
See Clapp v. Commissioner, 875 F.2d 1396, 1403 (9th Cir. 1989);
Powers v. Commissioner, 100 T.C. 457 (1993).
Consistent with the foregoing, we shall deny petitioner's
motion to dismiss for lack of jurisdiction.
To reflect the foregoing,
An order denying petitioner's
Motion to Dismiss for Lack of
Jurisdiction, As Amended, and
petitioner's Motion to Strike will
be issued.
9
(...continued)
information contemplated under Rule 70(a) or later through formal
discovery requests such as a request for production of documents.