T.C. Summary Opinion 2009-169



                      UNITED STATES TAX COURT



               KEITH ROBERT CALDWELL, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9011-08S.              Filed November 18, 2009.



     Keith Robert Caldwell, pro se.

     Scott Little, for respondent.



     MORRISON, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,

and this opinion shall not be treated as precedent for any other

case.   Unless otherwise indicated, subsequent section references
                                - 2 -

are to the Internal Revenue Code as amended, and all Rule

references are to the Tax Court Rules of Practice and Procedure.

Background

     Petitioner Keith Robert Caldwell1 resided in Virginia at the

time his petition was filed.

     This case, which relates to Caldwell’s 2006 tax, is very

similar to Caldwell v. Commissioner, T.C. Summary Opinion 2008-

77, which related to his 2004 tax.      The procedural history of

each case is similar in the following respects.

     (1)    Caldwell filed a petition disputing respondent IRS’s

disallowance of his alimony deduction for the relevant year.

     (2)    The IRS conceded that the alimony deduction was to be

allowed in full and that he would have no deficiency for the

year.    The IRS conceded the previous case (i.e., the case

relating to his 2004 tax) because Caldwell supplied additional

substantiation for the alimony deduction, including (a) the court

order requiring Caldwell to pay the alimony and (b) documents

showing that the amount of retirement income Caldwell reported on

his return was being reported to him gross, not net, of the

alimony (a tax deduction in the latter situation would have been

duplicative).    We infer that this additional substantiation may




     1
      Caldwell has previously represented to the Court that he
has a doctorate in management.
                                 - 3 -

be what led the IRS to concede the alimony deduction in this case

as well.

     (3)   Caldwell refused to agree to any stipulations

reflecting the IRS’s concession.    In the previous case, he

refused to agree to the stipulations at least in part because he

wanted the IRS to also stipulate an issue relating to his 2003

tax year (even though the Court advised him that the issue was

not before it) and to “stipulate” that it would not audit him

with respect to the alimony issue for other years.    We do not

know why he refused to agree to stipulations in this case.     He

simply stated that he would not do so until the Court responded

to the motion discussed below.

     (4)   Caldwell filed a motion for (a) reasonable litigation

and administrative costs under section 7430; and (b) other types

of relief that we do not have authority to provide.

     Caldwell’s request in the previous case, purportedly

entirely under section 7430, was for $100,000 tax-free.    We infer

from the amount requested, the absence of any indication that he

had costs potentially recoverable under that section (which

generally allows recovery only of a taxpayer’s direct costs of an

audit or litigation, such as accountant’s and attorney’s fees and

court costs), and his vague reference in the motion in that case

to “significant physical and mental harm as well as financial

loss” that most of the amount instead reflected compensation for
                               - 4 -

generalized distress caused by the litigation and preceding

audit.

     Caldwell’s request in this case is for reasonable litigation

and administrative costs and for an apology from the Commissioner

of Internal Revenue and a change in the IRS’s procedures to

protect him from “erroneous” audits.   Caldwell titled the motion

in this case (i.e., the 2006 case) “Motion to Require the

Respondent to Provide a Written Letter of Apology to the

Petitioner, and to Reimburse the Petitioner Administrative Costs

Related to Filing and Processing Legal Actions Relevant to this

Case.”   For convenience, we refer to the parts requesting

reimbursement of costs as the “Request for Costs,” and to the

parts requesting an apology and other relief as the “Request for

Apology.”2

     The IRS filed an objection to the motion in this case, which

we discuss below to the extent necessary to decide the motion.

     In neither case did Caldwell’s motion state, nor did

anything else before the Court indicate, what Caldwell’s

litigation and administrative costs were (aside from a $60 filing


     2
      Rule 54(b) requires in relevant part that “Unless otherwise
permitted by the Court, motions shall be separately stated and
not joined together * * *.” Although Caldwell’s motion might
more properly have been made as two separate motions, we decline
to question it on that ground because neither the IRS’s ability
to respond to the motion nor the Court’s ability to decide it
have been adversely affected. See Rule 1(d) (“The Court’s Rules
shall be construed to secure the just, speedy, and inexpensive
determination of every case.”).
                              - 5 -

fee for each case) or suggest that the costs were substantial.

Caldwell did not pay a lawyer or other representative to

represent him in this case.

     In the previous case, the Court issued an order on March 13,

2008, before Caldwell filed the foregoing motion in that case (or

the corresponding motion in this case) which provided in part as

follows.

          At an oral status report on this matter * * *.
     * * * petitioner indicated his desire to seek
     administrative and or litigation costs, pursuant to
     section 7430 and Rule 230 et seq. [Fn. ref. omitted.]

               *    *     *     *     *     *     *

          The Court advises petitioner that litigation and
     administrative costs are limited to substantiated, out
     of pocket costs incurred in addressing the tax dispute
     currently before the Court * * *.3 * * * In the event
     that petitioner elects to request an award of
     reasonable litigation and administrative costs pursuant
     to section 7430, petitioner should review section 7430
     and follow the requirements outlined in Rules 230
     through 233, particularly Rule 231(b) [requiring
     certain specific assertions] and (d) [requiring an
     affidavit describing the costs].
           3
           In section 4 of his petition, petitioner states,
     in part: “The Petitioner’s requested relief in this
     matter is $50,000.00.” In his January 29, 2008,
     memorandum * * * petitioner demands a $100,000 tax-free
     payment from the government to avoid public disclosure
     of respondent’s actions in challenging petitioner’s
     claimed alimony deduction. The Tax Court is a court
     with jurisdiction strictly limited by statute. We may
     exercise our jurisdiction only to the extent authorized
     by Congress. See sec. 7442; Naftel v. Commissioner, 

, 529 (1985). Petitioner should be mindful of
     the Court’s limited jurisdiction in any claim he might
     choose to make in this proceeding. For example, the
     Tax Court does not have jurisdiction to consider claims
     for punitive damages against the Internal Revenue
                                - 6 -

     Service. Grigoraci v. Commissioner, 

, 280
     (2004); Petito v. Commissioner, T.C. Memo 2002-271.
     See also Chocallo v. Commissioner, T.C. Memo 2004-152.

Discussion

     No Deficiency or Overpayment

     The IRS has conceded all issues other than those relating to

Caldwell’s motion discussed below, and we accept the IRS’s

concessions.   Accordingly, the Court will enter a decision of no

deficiency or overpayment for Caldwell’s 2006 taxable year.    See

Fazi v. Commissioner, 

, 444 (1995) (“It is within

this Court’s discretion to accept or reject a concession.”).

     Request for Apology

     The part of Caldwell’s motion which we characterize as a

“Request for Apology” asks that we require the IRS to enter into

the record “a written apology to the Petitioner, signed by the

Commissioner, Internal Revenue Service”, which must “explain the

steps that the IRS has taken to prevent future acts of erroneous

tax audits that were demonstrated in the IRS audit of the

Petitioner’s tax filings [for] 2006, 2004, and 2003.”

     The Tax Court may exercise jurisdiction only to the extent

authorized by Congress.    See sec. 7442; Naftel v. Commissioner,

, 529 (1985).    The question of the Court’s

jurisdiction is fundamental and must be addressed when raised by

a party or on the Court’s own motion.   See Estate of Young v.

Commissioner, 

, 880-881 (1983).   If we find that we do
                                - 7 -

not have jurisdiction to consider an issue, then despite a

party’s choice of the Tax Court as a forum to settle the dispute,

we may not decide the issue.    Naftel v. Commissioner, supra at

530.

       Despite the Court’s warning to him in the previous case that

the Court’s powers to grant relief are limited, Caldwell has not

stated why he believes that we have jurisdiction to order the

Commissioner of Internal Revenue to apologize to him or to order

the IRS prospectively to change its procedures.    The IRS objected

to the Request for Apology on the ground that Congress has not,

through section 7430 (relating to administrative or litigation

costs) or otherwise, authorized us to grant such relief.3    We

agree.

       We lack jurisdiction to order the IRS to grant the relief

requested in the Request for Apology, or similar relief, and will

accordingly deny the Request for Apology.

       Request for Costs

       We construe the remainder of Caldwell’s motion (Request for

Costs) as a motion for reasonable litigation and administrative

costs under section 7430.    (Caldwell has not stated what rule of




       3
      The IRS further argued that the Federal Government’s
sovereign immunity would prevent us from granting such relief.
Since nothing of which we are aware even suggests we could grant
the relief, we need not consider whether sovereign immunity
prevents us from granting it.
                              - 8 -

law may authorize us to consider the Request for Costs, but we

are not aware of any other than, possibly, section 7430.)

     Rule 231(b) requires that a section 7430 motion be in

writing and contain, among other things:   a statement that the

moving party has exhausted the administrative remedies available

to such party within the IRS; a statement that the moving party

has not unreasonably protracted the Court proceeding, and, if the

claim includes a claim for administrative costs, the

administrative proceeding; and a statement of the specific

litigation and administrative costs for which the moving party

claims an award, supported by an affidavit in the form specified

by Rule 231(d).

     Despite being directed by this Court to present his motion

for costs in the previous case in accordance with Rule 231 and

receiving an explanation in the Court’s opinion in that case that

his failure to do so was one of the reasons his motion for costs

was denied, Caldwell appears to have ignored Rule 231(b) entirely

in filing the Request for Costs.   He did not include any of the

statements discussed above, or ever indicate what his

administrative or litigation costs may have been aside from his

$60 filing fee.

     The IRS objected to Caldwell’s Request for Costs, stating,

among other things, that Caldwell failed to exhaust his

administrative remedies, failing, for example, to participate in
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an IRS Appeals office conference; that he unreasonably protracted

administrative and Court proceedings by not responding to an IRS

auditor’s requests for information and by refusing to agree to

the IRS’s full concession of this case (aside from the motion);

and that he failed to state what costs he is claiming.   Since it

is clear that Caldwell failed to state that he exhausted his

administrative remedies within the IRS--and the record before the

Court does not otherwise indicate that he exhausted them--we

shall simply deny the motion on that ground.4

     Although Rule 174(b) provides that “[t]rials of small tax

cases will be conducted as informally as possible consistent with

orderly procedure,” and we on occasion relax procedural rules in

such cases, we see no reason to direct that any further action be

taken before denying the Request for Costs for failure to comply

with our Rules (which section 7463(a) authorizes us to apply to a


     4
      The Request for Costs does not clearly indicate whether it
seeks “administrative costs”, which sec. 7430(c)(2) defines
basically as costs associated with an IRS audit, “litigation
costs”, which sec. 7430(c)(1) defines basically as costs
associated with a Tax Court case, or both. We infer from its
title’s reference to “filing and processing legal actions
relevant to this case” and its statement that the IRS “forced”
him to file the petition that the motion seeks litigation costs
at least. We observe from the absence of any mention in the
record before the Court of an unsuccessful request to the IRS for
administrative costs that Caldwell likely did not make such a
request. Such a failure would leave us without jurisdiction even
to consider whether to award him administrative costs. See secs.
7430(b)(4), (f)(2); Bent v. Commissioner, T.C. Memo. 2009-146 (“A
taxpayer who wants to claim administrative costs must first file
an application with the IRS and then file a petition with the Tax
Court * * *.”).
                              - 10 -

so-called “small tax case” such as this one).   Although this

Court has twice before explained to Caldwell that a motion for

administrative or litigation costs must conform to section 7430

and Rules 230-233, he has made no effort to comply with these

rules.   Moreover, he declined the Court’s offer at a calendar

call for this case (in a trial session at Washington, D.C., close

to his address--his home, we infer--in an outer suburb of the

city) to schedule a hearing to discuss the case and motion.

     The Court has considered all of Caldwell’s contentions,

arguments, requests, and statements.   To the extent not discussed

herein, we conclude that they are meritless, moot, or irrelevant.

     To reflect the foregoing,



                                         An appropriate order and

                                    decision will be entered.