Mardi Rustam - Page 6

                                        - 6 -                                         
               The right to question the jurisdiction of this Court cannot            
          be waived by the actions or inactions of a party.  David Dung Le,           
          M.D., Inc. v. Commissioner, 114 T.C. 268 (2000), affd. 22 Fed.              
          Appx. 837 (9th Cir. 2001).  Consequently, respondent did not                
          waive the right to challenge our jurisdiction over the underlying           
          tax liability by instructing petitioner that the proper method              
          for disputing the determination was for petitioner to file a                
          petition with this Court.                                                   
               For the foregoing reasons, we conclude that this Court lacks           
          jurisdiction over the underlying section 6672 penalty in the                
          instant case and that respondent’s motion to dismiss must be                
          granted.5  Petitioner, however, is not necessarily without                  

               with respect to such penalty, effective on the day                     
               following the close of the 30-day period referred to in                
               this paragraph.                                                        
               5Petitioner also contends that respondent’s motion to                  
          dismiss is premature because respondent failed to notify                    
          petitioner or petitioner’s counsel before the filing of the                 
          motion pursuant to Rule 50(a), leaving petitioner with no                   
          opportunity to object to the motion.  This contention lacks                 
          merit.  Rule 50(a) provides:                                                
                    (a) Form and Content of Motion:  An application to                
               the Court for an order shall be by motion in writing,                  
               which shall state with particularity the grounds                       
               therefor and shall set forth the relief or order                       
               sought.  The motion shall show that prior notice                       
               thereof has been given to each other party or counsel                  
               for each other party and shall state whether there is                  
               any objection to the motion.  If a motion does not                     
               include such a statement, the Court will assume that                   
               there is an objection to the motion.                                   

Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next

Last modified: May 25, 2011