Kensei not happei

[ASITStands]

Thanks. And, sorry for calling you, 'Observer,' when you're obviously, 'The Operative.'

Senior moment! Or, Friday Afternoon Moment of Zen (though it was written in the morning).

Maybe I've had too much coffee? Don't know. Ain't seeing straight yet.

Still thinking about 'Weston's Excellent Adventure!' on Quatloos. Hoping he still reads us.

[mutter]

someone explain why the tax court would not have jurisdiction to review/over turn anything the IRS has done. isnt that its entire reason for existance? Judicial review of tax matters. speaking of the frivilous penalties here

Other explanations aside, I believe there's a simpler answer to your question.

Essentially, there are only two places a taxpayer can invoke the jurisdiction of tax court.

The first involves the receipt of a notice of deficiency (which is a proposed assessment) at which time the taxpayer may petition tax court for a redetermination of said deficiency.

Filing a petition in tax court on a proper issue invokes its jurisdiction.

The second involves the receipt of a notice of determination (which is a proposed collection action under lien or levy) at which time the taxpayer may petition tax court for any abuse of discretion in the upholding of the collection action by Appeals.

The only issue is whether Appeals correctly upheld the lien or levy.

This is the spot in which 'Kensei' finds himself, except he forfeited his right to a collection due process hearing before an Appeals Officer, and therefore, his right to tax court.

This is a rather simple answer, as there are other opportunities to petition tax court, but in the case of frivolous penalties, it's the precise time to challenge them before payment.

That's the part 'Kensei' and Lost Horizons missed. It was the only time in which to challenge the frivolous penalties under IRC § 6702 without having to pay the entire amount first.

'Kensei' should not have forfeited his right to a collections due process hearing.

And, 'Tax Protester's' assertion we've overlooked his first point (something about a claim for refund) itself overlooks the fact, the only way to make a claim for refund is to first of all pay the entire amount of the disputed tax or penalty, before making a claim on Form 843.

And, of course, any claim brought in district court or the court of claims comes later.

EDIT: Among other statutes, take a look at IRC § 6212(a) and IRC § 6330(d), which grant an opportunity to petition tax court at the notice of deficiency and notice of determination.

so in essence because kensei did not follow the administrative procedures(due process?) he barred the tax court from ever gaining subject matter jurisdiciton.
BTW does it not say in the IRC that tax court is an Article 3 court? I remember reading that section cos I was surprised it wasnt an article 1, but cant cite the section

[Famspear]

BTW does it not say in the IRC that tax court is an Article 3 court? I remember reading that section cos I was surprised it wasnt an article 1, but cant cite the section

The Tax Court is an Article One court, per 26 USC 7441.

[Famspear]

Here is some background on the status of the U.S. Tax Court, from an editorial summary by the staff attorneys at CCH, a major publisher of tax law related materials:

[ . . . . ](d) An Article I court, which exercises judicial power, can be a "Court of Law," within the meaning of the Appointments Clause. The reference to "Courts of Law" cannot be limited to Article III courts merely because they are the only courts the Constitution mentions. Congress has wide discretion to assign the task of adjudication to legislative tribunals [ . . . .]

(e) The Tax Court is a "Court of Law" within the Clause's meaning. It exercises judicial power to the exclusion of any other function; its function and role closely resemble those of the federal district courts; and it is independent of the Executive and Legislative Branches, in that its decisions are appealable in the same manner as those of the district courts. [ . . . . ]

--from CCH headnote commentary on the case of Freytag v. Commissioner, 501 U.S. 868, 111 S. Ct. 2631 (1991) (copyright by CCH).

In the Freytag case, the Supreme Court itself stated:

The text of the Clause [the Appointments Clause of the Constitution] does not limit "the Courts of Law" to those courts established under Article III of the Constitution. The Appointments Clause does not provide that Congress can vest appointment power only in "one supreme Court" and other courts established under Article III, or only in tribunals that exercise broad common-law jurisdiction. Petitioners argue that Article II's reference to "the Courts of Law" must be limited to Article III courts because Article III courts are the only courts mentioned in the Constitution. It of course is true that the Constitution "nowhere makes reference to 'legislative courts.' " See Glidden, 370 U.S., at 543. But petitioners' argument fails nevertheless. We agree with petitioners that the Constitution's terms are illuminated by their cognate provisions. This analytic method contributed to our conclusion that the Tax Court could not be a department. Petitioners, however, underestimate the importance of this Court's time-honored reading of the Constitution as giving Congress wide discretion to assign the task of adjudication in cases arising under federal law to legislative tribunals. See, e.g., American Ins. Co. v. Canter, 1 Pet. 511, 546 (1828) (the judicial power of the United States is not limited to the judicial power defined under Art. III and may be exercised by legislative courts); Williams v. United States, 289 U.S. 553, 565-567 (1933) [ . . . .].

Having concluded that an Article I court, which exercises judicial power, can be a "Court of Law," within the meaning of the Appointments Clause, we now examine the Tax Court's functions to define its constitutional status and its role in the constitutional scheme. See Williams, 289 U.S., at 563-567. The Tax Court exercises judicial, rather than executive, legislative, or administrative power. It was established by Congress to interpret and apply the Internal Revenue Code in disputes between taxpayers and the Government. By resolving these disputes, the court exercises a portion of the judicial power of the United States.

The Tax Court exercises judicial power to the exclusion of any other function. It is neither advocate nor rulemaker. As an adjudicative body, it construes statutes passed by Congress and regulations promulgated by the Internal Revenue Service. It does not make political decisions.

The Tax Court's function and role in the federal judicial scheme closely resemble those of the federal district courts, which indisputably are "Courts of Law." Furthermore, the Tax Court exercises its judicial power in much the same way as the federal district courts exercise theirs. It has authority to punish contempts by fine or imprisonment, 26 U.S.C. §7456(c) ; to grant certain injunctive relief, §6213(a) ; to order the Secretary of the Treasury to refund an overpayment determined by the court, §6512(b)(2) ; and to subpoena and examine witnesses, order production of documents, and administer oaths, §7456(a) . All these powers are quintessentially judicial in nature.

The Tax Court remains independent of the Executive and Legislative Branches. Its decisions are not subject to review by either the Congress or the President. Nor has Congress made Tax Court decisions subject to review in the federal district courts. Rather, like the judgments of the district courts, the decisions of the Tax Court are appealable only to the regional United States Courts of Appeals, with ultimate review in this Court. The Courts of Appeals, moreover, review those decisions "in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury."

--from Freytag, cited above.