1979 U.S. Tax Ct. LEXIS 197">*197 Respondent mailed petitioners a notice of deficiency determining an excise tax deficiency under
71 T.C. 564">*564 This matter comes before the Court on respondent's motion to dismiss for lack of jurisdiction insofar as the petition alleges error in the imposition of an excise tax pursuant to the provisions of
FINDINGS OF FACT
Petitioners are Irving Freedman and Thelma Freedman, husband and wife, who resided in Hollywood, Fla., at the time they filed the petition in this case. They filed joint Federal income tax returns for the period involved herein with the office of the Internal Revenue Service at New York, N.Y.
On January 12, 1978, respondent mailed petitioners a notice of deficiency (Internal Revenue Form L-50AD (Rev. 11-74)) determining1979 U.S. Tax Ct. LEXIS 197">*201 an excise tax deficiency under
Petitioners timely filed a petition with this Court in which they contested both the income and excise tax deficiencies. On 71 T.C. 564">*565 June 7, 1978, respondent filed a motion to dismiss the portion of the petition pertaining to the excise tax deficiency on the ground that this Court is without jurisdiction to redetermine petitioners' liability for the excise tax set forth in the petition.
OPINION
The issue presented involves the jurisdiction of this Court to redetermine an excise tax deficiency imposed under
1979 U.S. Tax Ct. LEXIS 197">*203 The jurisdiction of the Tax Court to redetermine a deficiency and determine an overpayment is conferred by statute. Sec. 7442. Cf.
Section 6212(a) dealing with the notice of deficiency, currently provides:
If the Secretary determines that there is a deficiency in respect of any tax 71 T.C. 564">*566 imposed by subtitle A or B or chapter 41, 42, 43, or 44, he is authorized to send notice of such deficiency to the taxpayer by * * * mail. 4
A deficiency is currently defined by section 6211(a) as follows:
(a) In General. -- * * * in the case of income, estate, and gift taxes imposed by subtitles A and B and excise taxes imposed by chapters 41, 42, 43, and 44 the term "deficiency" means the amount by which the tax imposed by subtitle A or1979 U.S. Tax Ct. LEXIS 197">*204 B, or chapter 41, 42, 43, or 44 exceeds the excess of -- (1) the sum of (A) the amount shown as the tax by the taxpayer upon his return, if a return was made by the taxpayer and an amount was shown as the tax by the taxpayer thereon, plus (B) the amounts previously assessed (or collected without assessment) as a deficiency, over -- (2) the amount of rebates, as defined in subsection (b)(2), made.
We believe the nature and purpose of the excise tax in issue reinforces our reading of the statute. We note that section 1494(a) provides that the tax "
Nor do we believe that minor drafting errors in the Tax Reform Act of 1969 require a different result. Prior to that1979 U.S. Tax Ct. LEXIS 197">*207 Act, section 6211(a) then provided:
in the case of income, estate, and gift taxes, imposed by subtitles A and B, the term "deficiency" means the amount by which the tax imposed by subtitles A or B exceeds the excess of * * *
Section 6211(a) was amended by section 101(f) of the Tax Reform Act of 1969 to read as follows:
in the case of income, estate, gift, and excise taxes, imposed by subtitles A and B, and chapter 42, the term "deficiency" means the amount by which the tax imposed by subtitle A or B or chapter 42 exceeds the excess of * * *
The addition of the word "excise" to section 6211(a) in 1969 suggests the possibility that Congress intended to extend the statutory deficiency procedures, and the jurisdiction of this Court, to the excise tax imposed by
1979 U.S. Tax Ct. LEXIS 197">*209 Petitioners' argument that this Court possesses jurisdiction regarding
1. All section references are to the Internal Revenue Code of 1954, as amended and in effect for the year of the transaction in issue (1969), unless otherwise indicated.↩
2.
There is hereby imposed on the transfer of stock or securities by a citizen or resident of the United States, or by a domestic corporation or partnership, or by a trust which is not a foreign trust, to a foreign corporation as paid-in surplus or as a contribution to capital, or to a foreign trust, or to a foreign partnership, (1) the value of the stock or securities so transferred, over (2) its adjusted basis (for determining gain) in the hands of the transferor.
[Emphasis added.]↩
3. SEC. 1494. PAYMENT AND COLLECTION
(a) Time for Payment. -- The tax imposed by
4. Subtitle A contains secs. 1-1564. These sections concern the income tax, although they also include the excise tax provisions here in issue (secs. 1491-1494). Subtitle B contains secs. 2001-2622, the estate and gift tax provisions. Chs. 41, 42, 43, and 44 contain secs. 4911-4981, certain miscellaneous excise tax provisions located in subtitle D.↩
5. It should be noted that sec. 1057 does not apply to the instant case. Sec. 1057 provides that in lieu of payment of the tax imposed by
6. Sec. 101(k)(1) of the Tax Reform Act provides that "the amendments made by this section shall take effect on January 1, 1970."
7. The order of the language of sec. 6211(a) was corrected by a conforming and clerical amendment in 1974. Sec. 1016(a)(9), Pub. L. 93-406 (Employee Retirement Income Security Act of 1974).↩
