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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
4(...continued)
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.
(continued...)
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