- 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.Page: Previous 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
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