-7-
(A) to the Tax Court (and the Tax Court
shall have jurisdiction with respect to such
matter); or
(B) if the Tax Court does not have
jurisdiction of the underlying tax liability,
to a district court of the United States.
[Emphasis added.]
Under that version of section 6330(d)(1) we held that we
lack jurisdiction to review a notice of determination when the
underlying tax liability consists solely of frivolous return
penalties under section 6702.3 Johnson v. Commissioner, 117 T.C.
204, 208 (2001); Van Es v. Commissioner, 115 T.C. 324, 329
(2000); Dunbar v. Commissioner, T.C. Memo. 2006-184 (dismissing
the portion of the petition related to frivolous return penalties
for lack of jurisdiction, but not the portion related to income
tax); Henderson v. Commissioner, T.C. Memo. 2004-36. But see
Wagenknecht v. United States, 509 F.3d 729 (6th Cir. 2007)
(holding when the underlying tax liability consists of income tax
as well as section 6702 penalties, only the Tax Court has
jurisdiction to hear the entire appeal).
As we did not have jurisdiction to redetermine frivolous
return penalties assessed pursuant to section 6702, see sec.
6703(b) and (c), we lacked jurisdiction to hear a challenge to
3The frivolous return penalty is in addition to any other
penalty provided by law. Sec. 6702(b). It is assessed without a
notice of deficiency first being sent to the taxpayer, thus
generally depriving this Court of jurisdiction over the penalty.
Sec. 6703(b).
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