- 44 -
We think petitioners’ contention has been essentially
answered by the Court of Appeals for the Sixth Circuit, the
circuit to which these cases are appealable, see sec.
7482(b)(1)(A), in Johnston v. Commissioner, 429 F.2d 804 (6th
Cir. 1970), affg. 52 T.C. 792 (1969). In that case, the taxpayer
filed a petition with this Court contesting the assessment,
without the prior issuance of a notice of deficiency, of an
addition to tax under section 6654(a) for failure to pay
estimated tax. We granted the Commissioner’s motion to dismiss
for lack of jurisdiction, holding that section 6659(b)17 did not
require the issuance of a notice of deficiency for the particular
addition involved. In so holding, we stated:
We are not aware of any case that holds that the
assessment of a tax before the taxpayer is given his
day in Court is a denial of due process. To the
contrary, see Phillips v. Commissioner, 283 U.S. 589
(1931). Prior to the establishment of the Board of Tax
Appeals (now the Tax Court) prepayment of the tax was a
prerequisite to the right to test in court all taxes
determined to be due by the Commissioner of Internal
Revenue. [Johnston v. Commissioner, 52 T.C. at 793.]
In affirming our action, the Court of Appeals acknowledged
that “the payment of taxes as a precondition to sue for their
return places a burden on the taxpayer”. Id. at 806. However,
the Court of Appeals went on to hold that given the availability
of a refund action, such burden “does not so deprive him of an
17 Sec. 6659 has been renumbered several times. In the
current Internal Revenue Code, it appears as sec. 6665.
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