Harold Wilson - Page 3

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          income tax for 1999 in the amount of $335.  Respondent determined           
          that petitioner did not qualify for an earned income credit for             
          1999 and that petitioner was not entitled to a tax refund.                  
          Petitioner filed a timely petition with the Court                           
          challenging respondent’s determination.  In response to the                 
          petition, respondent filed a Motion to Dismiss for Failure to               
          State a Claim Upon Which Relief Can be Granted.  Respondent                 
          argued that section 32(c)(2)(B)(iv) expressly excludes from the             
          definition of earned income any amounts received for services               
          provided by an individual while the individual is an inmate at a            
          penal institution.  Respondent reasoned that, because petitioner            
          had no earned income within the meaning of section 32 during                
          1999, petitioner failed to state a claim for relief.                        
               This matter was called for hearing at the Court’s motions              
          session held in Washington, D.C.  Counsel for respondent appeared           
          at the hearing and offered argument in support of respondent’s              
          motion.  No appearance was made by or on behalf of petitioner at            
          the hearing.                                                                
               During the hearing, the question was raised whether                    
          respondent determined a “deficiency” in this case within the                
          meaning of section 6211.  Counsel for respondent argued that the            
          facts in the instant case were tantamount to a “frozen refund”              
          and that the Court had jurisdiction over the petition.  In                  
          response to petitioner’s challenge to the timeliness of                     

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