MEMORANDUM OPINION
PARR,
Respondent determined deficiencies in petitioner's Federal income tax for years 1990 and 1991 in the respective amounts of $ 44,086 and $ 26,406. Respondent also determined an addition to tax and an accuracy-related penalty for tax year 1990 in the amounts of $ 3,799 and $ 330 pursuant to sections 6651(a)(1) and 6662(b)(1), respectively.
1996 Tax Ct. Memo LEXIS 95">*96 The deficiencies at issue are attributable to respondent's determination that: (1) Petitioner failed to report income for tax years 1990 and 1991, (2) petitioner failed to substantiate deductions for unreimbursed employee expenses for tax years 1990 and 1991, 2 and (3) petitioner's deduction for exemptions should have been reduced because his adjusted gross income was in excess of $ 125,000 for tax year 1991. The additions to tax at issue are attributable to petitioner's late filing of his 1990 Federal income tax return and an accuracy-related penalty for negligence for tax year 1990.
In his motion for summary judgment, petitioner argues, inter alia, 3 that (1) the amounts received from his civil rights lawsuit (hereafter civil action) are excludable from income, 1996 Tax Ct. Memo LEXIS 95">*97 (2) he did not receive any income in tax year 1991, (3) the Tax Court is without jurisdiction because of respondent's failure to comply with
The facts material to the disposition of the motion for summary judgment are the undisputed facts set out in the pleadings, the motion for summary judgment, the objection to the motion, and the reply to the objection.
On his 1990 Federal income tax return, petitioner reported income of $ 125,316.41, arising from his civil action. 4 However, believing such amount to be excludable from gross income, petitioner did not include the amount as taxable income on his return. He did report $ 27,118.33 as Federal income taxes withheld relating1996 Tax Ct. Memo LEXIS 95">*98 to such income, and therefore his return indicated an overpayment to be refunded in the amount of $ 29,612.13. On September 28, 1992, respondent refunded to petitioner the requested amount plus $ 433.43 in interest.
Petitioner claims that he filed his 1990 tax return on June 6, 1991. However, respondent's records indicated that the return was received by her on July 1, 1992. On December 14, 1993, respondent informed petitioner that she was examining his 1990 and 1991 Federal income tax returns. On or about April 7, 1994, petitioner had filed a complaint in the U.S. Court of Federal Claims concerning his tax liabilities for the tax years 1990 and 1991. The United States filed a motion to dismiss petitioner's case in the Court of Federal Claims, and, as of December 6, 1995, there had been no hearing in the case.
1996 Tax Ct. Memo LEXIS 95">*99 On May 12, 1995, respondent issued a notice of deficiency to petitioner, asserting, inter alia, that the payments petitioner received from his civil action were to be treated as backpay and should have been included in income for tax years 1990 and 1991. On June 20, 1995, petitioner filed a petition with this Court contesting the determinations made by respondent in her notice of deficiency.
Summary judgment is appropriate "if the pleadings, answers to interrogatories, depositions, admissions, and any other acceptable materials, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that a decision may be rendered as a matter of law". When a motion for summary judgment is made and supported as provided in this Rule, an adverse party may not rest upon the mere allegations or denials of such party's pleading, but such party's response, by affidavits or as otherwise provided in this Rule, must set forth specific facts showing1996 Tax Ct. Memo LEXIS 95">*100 that there is a genuine issue for trial. If the adverse party does not so respond, then a decision, if appropriate, may be entered against such party.
See
As a threshold matter, we find that genuine issues of material fact exist with respect to a number of petitioner's arguments; namely, whether or not petitioner received income during tax year 1991, whether the award from the civil action represents taxable or excludable income, whether petitioner has1996 Tax Ct. Memo LEXIS 95">*101 substantiated unreimbursed expenses, and whether petitioner filed his 1990 return in June 1991 or July 1992. All of these issues must be resolved with the introduction of written evidence and/or testimony, and therefore they are not ripe for summary adjudication.
It is well settled that the Tax Court is a court of limited jurisdiction, and we may exercise our jurisdiction only to the extent authorized by Congress. If the Secretary
Subsection (e) does not apply if the case in the Court of Federal Claims or the District Court, as the case may be, has already proceeded1996 Tax Ct. Memo LEXIS 95">*103 to a hearing, that is, to actual trial. S. Rept. 1622, 83d Cong., 2d Sess. 13, 611 (1954); see
Since respondent filed a notice of deficiency prior to the actual trial in the case before the Court of Federal Claims, and since petitioner filed a petition pursuant to
Petitioner argues that respondent is precluded from recovering1996 Tax Ct. Memo LEXIS 95">*104 tax on the amount refunded, because respondent's sole remedy to recover the refund of withheld income tax made to petitioner is by the institution of suit against him under the provisions of
A suit for the recovery of an erroneous refund under
Under the general rule of
The final argument we must consider in petitioner's motion for summary judgment appears to be an estoppel argument. Petitioner contends that because respondent accepted his return for 1990 and issued him a refund, respondent should now be1996 Tax Ct. Memo LEXIS 95">*107 barred from assessing a deficiency in petitioner's 1990 tax. Petitioner's argument seems to be that his position as to the amount received from the civil action was fully disclosed on his return and respondent refunded the income taxes withheld on the basis of the return.
However, petitioner's argument is without merit. Respondent is not estopped from determining a deficiency merely because she had previously accepted petitioner's return and issued a refund.
In sum, petitioner's motion for summary judgment will be denied as to all issues. To reflect the foregoing,
1. All Rule references are to the Tax Court Rules of Practice and Procedure, and all section references are to the Internal Revenue Code in effect for the taxable years in issue, unless otherwise indicated.↩
2. This adjustment results in a further adjustment because petitioner's itemized deductions are less than the standard deduction allowable; accordingly, respondent disallowed the remaining itemized deductions and allowed petitioner the standard deduction.↩
3. We have considered all other arguments made by petitioner in his motion for summary judgment, and have determined such arguments to be without merit.↩
4. Petitioner disclosed the amount of the payment on his tax return by attaching Form 4852 to his return. The form lists a total payment of $ 125,316.41 and designates $ 27,118.33 as Federal income tax withheld.↩