1972 U.S. Tax Ct. LEXIS 174">*174 On June 17, 1971, petitioner was sent a notice of income tax deficiency in the amount of $ 291.54 for the year 1969. This amount was decreased to $ 182.84 in a subsequent report mailed to petitioner on Sept. 3, 1971. Petitioner filed a petition with the Tax Court on Sept. 13, 1971, for a redetermination of the deficiency and requested a jury trial. After obtaining an extension of time for answering the petition, respondent filed his answer. On Dec. 15, 1971, petitioner filed a motion to remove the case to the U.S. District Court for the District of New Jersey (Newark).
57 T.C. 720">*720 OPINION
On December 15, 1971, the petitioner filed a "Motion for Removal of Case to U.S. District Court" and a memorandum of points and authorities. The motion was served upon respondent and set for hearing at Newark, N.J., on February 7, 1972. On that date the arguments of both parties were heard.
The pertinent facts regarding the motion are as 1972 U.S. Tax Ct. LEXIS 174">*176 follows: Income tax of $ 116.32, reported but unpaid on petitioner's Federal income tax return for the year 1969, was paid in full by check on April 10, 1971, after the petitioner received a letter dated April 8, 1971, from a revenue officer concerning the delinquency in payment. On June 17, 1971, the respondent sent a notice of deficiency to petitioner which determined an income tax deficiency of $ 291.54 for the year 1969. Such amount was decreased by a subsequent report mailed to the petitioner 57 T.C. 720">*721 on September 3, 1971. The notice of deficiency is based upon the disallowance of part of a claimed foreign tax credit and part of a retirement income credit, both for lack of substantiation. On September 13, 1971, the petitioner filed her petition in this Court requesting a redetermination of the deficiency and demanding a trial by jury. Respondent filed his answer to the petition on December 15, 1971, after having obtained an extension of time. Also on December 15, 1971, petitioner filed with the Court her motion to remove this case to the U.S. District Court for the District of New Jersey (Newark).
Where, as here, a taxpayer receives a notice of an income tax deficiency 1972 U.S. Tax Ct. LEXIS 174">*177 and files a timely petition with the United States Tax Court, he gives the Tax Court exclusive jurisdiction. See
It is now a settled principle that a taxpayer may not unilaterally oust the Tax Court from jurisdiction which, once invoked, remains unimpaired until it decides the controversy. See
Accordingly, we conclude that petitioner's motion to remove this case to the U.S. District Court must be denied. 3
There is no merit to petitioner's request for a jury trial1972 U.S. Tax Ct. LEXIS 174">*181 in the Tax Court. See
1.
(a) Effect of Petition to Tax Court. -- If the Secretary or his delegate has mailed to the taxpayer a notice of deficiency under section 6212(a) (relating to deficiencies of income, estate, gift, and chapter 42 taxes) and if the taxpayer files a petition with the Tax Court within the time prescribed in section 6213(a), no credit or refund of income tax for the same taxable year, of gift tax for the same calendar year or calendar quarter, of estate tax in respect of the taxable estate of the same decedent, or of tax imposed by chapter 42 with respect to any act (or failure to act) to which such petition relates, in respect of which the Secretary or his delegate has determined the deficiency shall be allowed or made and no suit by the taxpayer for the recovery of any part of the tax shall be instituted in any court except -- (1) As to overpayments determined by a decision of the Tax court which has become final; and (2) As to any amount collected in excess of an amount computed in accordance with the decision of the Tax Court which has become final; and (3) As to any amount collected after the period of limitation upon the making of levy or beginning a proceeding in court for collection has expired; but in any such claim for credit or refund or in any such suit for refund the decision of the Tax Court which has become final, as to whether such period has expired before the notice of deficiency was mailed, shall be conclusive.↩
2. It should be noted that under
3. In
"It Is Ordered and Adjudged by this Court that this appeal from an order of the Tax Court of the United States be and the same is hereby dismissed with costs in that said appeal is prematurely taken from an order which is not a final or appealable order, but without prejudice, however, to the right of the appellant to eventually seek a review of the order in question, should he so desire, at such time as the proceeding may be brought to this Court from a final decision or appealable order."↩
