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followed where the Commissioner issues a notice of deficiency to
a taxpayer who has a pending refund action, provides for the stay
of the refund action and, where appropriate, the shifting of
jurisdiction to the Tax Court.
Section 7422(e) provides in pertinent part as follows:
SEC. 7422(e). Stay Of Proceedings.–-If the
Secretary prior to the hearing of a suit brought by a
taxpayer in a district court or the United States
Claims Court for the recovery of any income tax, estate
tax, gift tax, or tax imposed by chapter 41, 42, 43, or
44 (or any penalty relating to such taxes) mails to the
taxpayer a notice that a deficiency has been determined
in respect of the tax which is the subject matter of
taxpayer’s suit, the proceedings in taxpayer’s suit
shall be stayed during the period of time in which the
taxpayer may file a petition with the Tax Court for a
redetermination of the asserted deficiency, and for 60
days thereafter. If the taxpayer files a petition with
the Tax Court, the district court or the United States
Claims Court, as the case may be, shall lose
jurisdiction of taxpayer’s suit to whatever extent
jurisdiction is acquired by the Tax Court of the
subject matter of taxpayer’s suit for refund. If the
taxpayer does not file a petition with the Tax Court
for a redetermination of the asserted deficiency, the
United States may counterclaim in the taxpayer’s suit,
or intervene in the event of a suit as described in
subsection (c) (relating to suits against officers or
employees of the United States), within the period of
the stay of proceedings notwithstanding that the time
for such pleading may have otherwise expired. * * *
Section 7422(e) does not provide for the tolling of the
normal 90-day period during which a petition for redetermination
is required to be filed with this Court under section 6213(a).
Cf. sec. 6213(f)(1). The plain language of section 7422(e)
indicates that, if the Commissioner issues a notice of deficiency
to a taxpayer who has a pending refund action, the taxpayer must
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Last modified: May 25, 2011