81 T.C. 855">*856 OPINION

This case is before the Court on petitioners' motion to dismiss for lack of jurisdiction, petitioners' motion for summary judgment, and respondent's motion for leave to file amendment to answer. ¹

1983 U.S. Tax Ct. LEXIS 11">*16 Petitioners filed a joint income tax return for the tax year 1978 with the respondent's Service Center at Fresno, Calif., on or about September 3, 1979 (having previously obtained an extension of time to file the return through September 17, 1979). The return disclosed a tax liability of $ 3,269.

81 T.C. 855">*857 On June 14, 1982, respondent mailed to petitioners what purported to be a notice of deficiency. The first page is a standard form letter 892, with petitioners' names and address and a statement that respondent had determined a deficiency with respect to petitioners' taxable year ending December 31, 1978, in the amount of $ 96,600. An attached Form 5278 entitled "Statement -- Income Tax Changes" purports to explain how the indicated deficiency was arrived at. This form shows an adjustment to income in the amount of $ 138,000 designated as "Partnership -- Nevada Mining Project." The Form 5278 has no information in the appropriate space for taxable income as shown on petitioners' return as filed. It shows as the "Total corrected income tax liability" the sum of $ 96,600 and indicates that this sum was arrived at by multiplying 70 percent times $ 138,000.

Another attached document, 1983 U.S. Tax Ct. LEXIS 11">*17 designated as "Statement Schedule 2," with the heading "Nevada Mining Project, Explanation of Adjustments," states as follows:

In order to protect the government's interest and since your original income tax return is unavailable at this time, the income tax is being assessed at the maximum tax rate of 70%.

The tax assessment will be corrected when we receive the original return or when you send a copy of the return to us.

The increase in tax may also reflect investment credit or new jobs credit which has been disallowed.

Also attached to the purported notice of deficiency is a document designated as "Statement Schedule 3," with the heading "Nevada Mining Project, Explanation of Adjustments" and the following statement:

It is determined that the alleged losses claimed by you in your income tax return for the taxable year(s) 7812 with respect to an alleged partnership known as NEVADA MINING PROJECT are not allowable because you have not established that the transactions in which the partnership was involved or in which you were involved with respect to the partnership were bona fide arm's length transactions at fair market value, that such transactions were entered into for1983 U.S. Tax Ct. LEXIS 11">*18 profit, or that such transactions had any economic substance other than the avoidance of taxes.

If the determination as set forth above is not sustained, then it is determined in the alternative that the partnership loss is not allowed for the following reasons:

(1) It has not been established that partnership expenses have been incurred, or, if incurred, were ordinary and necessary business expenses.

81 T.C. 855">*858 (2) In addition, you have failed to establish any adjusted basis in the NEVADA MINING PROJECT partnership by way of capital investment, partnership indebtedness, or otherwise. To the extent that you do have any adjusted basis, the claimed loss(es) in excess thereof are not allowable.

(3) In any event, any loss is limited to the amount you had at risk as defined in Section 465 of the Internal Revenue Code, which amount has not been established.

Therefore, your taxable income is increased as shown below.

Petitioners timely filed a petition with this Court on July 7, 1982. In their petition, they allege that they have never been associated with the "Nevada Mining 1983 U.S. Tax Ct. LEXIS 11">*19 Project Partnership" and did not claim on their 1978 return any expenses or losses related to this venture. Respondent filed an answer denying the substantive allegations of the petition.

On December 6, 1982, petitioners filed their motion to dismiss for lack of jurisdiction. In support of their motion, petitioners contend: (1) A determination, the prerequisite of a valid notice of deficiency, was never made by respondent; (2) if a determination was made, no meaningful notice thereof was sent to the petitioners as required; (3) the notice sent to petitioners advises of an assessment of tax concurrently with the notice, which action is inconsistent with the issuance of a notice of deficiency and fatal to its validity.

In his memorandum filed on February 4, 1983, in connection with his opposition to petitioners' motion, as well as at the hearing held on March 21, 1983, respondent agreed with petitioners' statement that petitioners "were not partners of any mining partnership nor did they have any investment or involvement in any mining activity. No item reported on Petitioners' income tax return involved any mining operation."

On March 25, 1983, petitioners filed a motion for summary1983 U.S. Tax Ct. LEXIS 11">*20 judgment based upon respondent's concession.

On April 5, 1983, respondent filed a motion for leave to file amendment to answer. In his proposed amendment to answer, respondent seeks to disallow deductions claimed by petitioners with respect to a video tape production on their 1978 return, 81 T.C. 855">*859 and to assert a resulting deficiency in the amount of $ 10,374. A letter dated November 29, 1982, from respondent's counsel to petitioners' counsel attached to respondent's memorandum sets forth a revised calculation of the asserted deficiency for the taxable year 1978 based on such disallowance in the amount of $ 10,374 and indicates that, prior to that time, a statutory notice of deficiency had been issued to petitioners disallowing such deductions for the taxable year 1977. At the hearing on March 21, 1983, petitioners' counsel admitted contact with respondent with respect to the taxable year 1977. The Court's records reveal that a statutory notice of deficiency for the taxable year 1977 disallowing deductions in respect of a video tape production was issued to petitioner on April 9, 1981, and that a petition was filed by petitioners on June 30, 1981.

At the hearing on petitioners' 1983 U.S. Tax Ct. LEXIS 11">*21 motion to dismiss for lack of jurisdiction, respondent's counsel explained the circumstances leading to the issuance of the purported notice of deficiency to petitioners and its erroneous association of petitioners with the Nevada Mining Project. Petitioners' 1978 return was placed in a "suspense status" by the Los Angeles District Director because of the District Director's association of the return with a tax shelter project. The tax shelter project was identified only by a "freeze code" number. In using respondent's computer, respondent's agents in the Los Angeles District transposed digits in the freeze code number and obtained proposed adjustment language for the Nevada Mining Project which was being audited by the Reno District Director. The correct freeze code number would apparently have produced information concerning Executive Productions, Inc., a video tape tax shelter which respondent now contends petitioners were involved in and with respect to which petitioners claimed deductions on their 1978 return. At no time prior to the issuance of the purported deficiency notice for the taxable year 1978 did respondent's agents make an effort to obtain petitioners' 1978 return1983 U.S. Tax Ct. LEXIS 11">*22 or to contact petitioners.

Petitioners' primary position with respect to their motion to dismiss for lack of jurisdiction is founded on the assertion that 81 T.C. 855">*860 respondent has not "determined that there is a deficiency" within the meaning of section 6212(a). ²1983 U.S. Tax Ct. LEXIS 11">*23 Petitioners argue that it is apparent from the face of the attachments to the purported notice of deficiency that the alleged "determination" bears no relationship to the return which the petitioners filed or should have filed and that respondent's "determination" did not satisfy the definition of "deficiency" in section 6211(a), in that he did not determine that there was an excess of the amount of tax allegedly due from petitioner over the amount shown as the tax on petitioners' return. ³ Respondent argues that the purported notice of deficiency, which was concededly properly addressed, set forth the amount which was claimed to be owed as a deficiency and the taxable year involved and that this satisfied the statutory requirement of section 6212(a). We agree with respondent.

We start from the established principle that no particular form is required for a statutory notice of deficiency. Commissioner v. Forest Glen Creamery Co., 98 F.2d 968">98 F.2d 968, 98 F.2d 968">971 (7th Cir. 1938); Jarvis v. Commissioner, 78 T.C. 646">78 T.C. 646, 78 T.C. 646">655-656 (1982). As Judge Learned Hand stated in Olsen v. Helvering, 88 F.2d 650">88 F.2d 650, 88 F.2d 650">651 (2d Cir. 1937),1983 U.S. Tax Ct. LEXIS 11">*24 "the notice is only to advise the person who is to pay the deficiency that the Commissioner means to assess him; anything that does this unequivocally is good enough." See also Commissioner v. Stewart, 186 F.2d 239">186 F.2d 239, 186 F.2d 239">241 (6th Cir. 1951), revg. a Memorandum Opinion of this Court.

The requirements of section 6212(a) are met if the notice of deficiency sets forth the amount of the deficiency and the 81 T.C. 855">*861 taxable year involved. See Foster v. Commissioner, 80 T.C. 34">80 T.C. 34, 80 T.C. 34">229-230 (1983). It need not contain any particulars or explanations as to how the deficiencies were determined. See Barnes v. Commissioner, 408 F.2d 65">408 F.2d 65, 408 F.2d 65">68 (7th Cir. 1969), affg. a Memorandum Opinion of this Court. See also Abatti v. Commmissioner, 644 F.2d 1385">644 F.2d 1385, 644 F.2d 1385">1389 (9th Cir. 1981), revg. on other grounds a Memorandum Opinion of this Court. ⁴

1983 U.S. Tax Ct. LEXIS 11">*25 We are satisfied that the deficiency notice herein meets the aforementioned standards insofar as any question of our jurisdiction is concerned. The fact that it subsequently develops even prior to trial that there was no deficiency on the basis of the grounds set forth in the deficiency notice is irrelevant. See Hannan v. Commissioner, 52 T.C. 787">52 T.C. 787 (1969). The definition of a "deficiency" contained in section 6211(a) does not require a different conclusion. As we see it, this definition simply outlines the method by which a notice of deficiency should be constructed and does not affect the jurisdiction of this Court. To conclude otherwise would make it mandatory for the Court to go behind the deficiency notice where the petitioner raises the question of whether respondent utilized his tax return in constructing the notice. Such a procedure would fly in the face of the long-established principle that this Court will ordinarily not look behind a deficiency notice. Riland v. Commissioner, 79 T.C. 185">79 T.C. 185, 79 T.C. 185">201 (1982); Greenberg's Express, Inc. v. Commissioner, 62 T.C. 324">62 T.C. 324, 62 T.C. 324">327 (1974). Clearly, 1983 U.S. Tax Ct. LEXIS 11">*26 no constitutional considerations are involved herein which might justify an exception to this general rule. 79 T.C. 185">Riland v. Commissioner, supra;62 T.C. 324">Greenberg's Express, Inc. v. Commissioner, supra at 328. Moreover, we note that, even in situations where the courts have gone behind a deficiency notice, they have not ruled that such notice was null and void, which would be the result herein if we accepted petitioners' contentions. See 62 T.C. 324">Greenberg's Express, Inc. v. Commissioner, supra at 328. But cf. Llorente v. Commissioner, 649 F.2d 152">649 F.2d 152, 649 F.2d 152">155 n. 4, 157 (2d Cir. 1981), modifying 74 T.C. 260">74 T.C. 260 (1980).

Similarly, we are not persuaded that we should reach a contrary conclusion because the deficiency notice herein reveals on its face that respondent's calculations were not 81 T.C. 855">*862 based upon, and did not bear any relationship to, petitioners' return. The concept that the requirement of section 6211(a) is one of methodology and has no jurisdictional significance is equally applicable whether or not respondent's failure to utilize a taxpayer's return1983 U.S. Tax Ct. LEXIS 11">*27 is patent or latent.

In sum, we hold that the deficiency notice herein was valid and that, with the filing of a timely petition, we have jurisdiction to proceed. Cf. Frieling v. Commissioner, 81 T.C. 42">81 T.C. 42 (1983); Mulvania v. Commissioner, 81 T.C. 65">81 T.C. 65 (1983). ⁵ In so holding, we emphasize that we view respondent's actions in constructing and issuing the deficiency notice herein as far from satisfactory. Respondent is reminded that, while a deficiency notice may be held to provide a sufficient foundation for jurisdictional purposes, it may nevertheless be held to be arbitrary and capricious, with the result that not only is its presumption of correctness destroyed, ⁶ but the burden of going forward or the burden of proof is shifted to respondent. Helvering v. Taylor, 293 U.S. 507">293 U.S. 507 (1935); Jackson v. Commissioner, 73 T.C. 394">73 T.C. 394, 73 T.C. 394">401 (1979). In the instant case, the combination of respondent's concession as to the substantive issue set forth in the deficiency notice and the fact that his amendment to answer raises a new issue makes it unnecessary for us to decide 1983 U.S. Tax Ct. LEXIS 11">*28 whether the deficiency notice is so inadequate as to produce this consequence. ⁷

Petitioners' assertion that the notice of deficiency is invalid because it advises them of an assessment concurrently with the notice is without merit. Petitioners1983 U.S. Tax Ct. LEXIS 11">*29 concede that no assessment has been made. Webster's Third New International Dictionary (1965 ed.), defines "assess" as meaning "to determine the rate or amount of" a tax. The use of the word "assessment" in the instant deficiency notice meant no more 81 T.C. 855">*863 than that. Such use may have been technically incorrect, but it clearly does not rise to the level of depriving the deficiency notice of its validity. Cf. 98 F.2d 968">Commissioner v. Forest Glen Creamery Co., supra at 971. Bromberg v. Ingling, 300 F.2d 859">300 F.2d 859 (9th Cir. 1962), cited by petitioners, is clearly distinguishable. That case, in addition to dealing with a special situation relating to Guam, involved an injunction where the taxpayer had been assessed and had not been given an opportunity for prepayment review.

We turn now to respondent's motion for leave to file an amendment to his answer and petitioners' motion for summary judgment. Initially, we observe that each of these motions was served by the moving party on the other party, but the Court has neither served such other party with a notice for response nor set either motion for hearing. Usually, the Court would1983 U.S. Tax Ct. LEXIS 11">*30 take such action. However, it is not required to do so where, as is the case herein, each nonmoving party has been apprised of the motion (see Rule 50(b)(3), Tax Court Rules of Practice and Procedure) and, under the circumstances, we are satisfied that no purpose would be served by so doing. We are satisfied that, on the basis of the existing record herein and our own research, we can proceed to dispose of both motions.

The fact that, if the deficiency notice herein had not been issued, the issuance of a notice of deficiency covering the disallowed deductions in respect of the video tape production for 1978 would presumably have been barred by the statute of limitations ⁸1983 U.S. Tax Ct. LEXIS 11">*32 does not require us to deny respondent's motion. Here, a timely deficiency notice, which we have held to be valid, was issued and that notice tolled the statute of limitations. See sec. 6213(a); 81 T.C. 42">Frieling v. Commissioner, supra.Compare Deakman-Wells Co. v. Commissioner, 213 F.2d 894">213 F.2d 894, 213 F.2d 894">897-899 (3d Cir. 1954), revg. 20 T.C. 610">20 T.C. 610 (1953). Under these circumstances, even if respondent had asked for an increased deficiency (respondent1983 U.S. Tax Ct. LEXIS 11">*31 has actually reduced his asserted deficiency herein, see p. 859 supra) as well as asserting a totally new issue, allowance of an amendment to his answer 81 T.C. 855">*864 could be granted. Teitelbaum v. Commissioner, 346 F.2d 266">346 F.2d 266 (7th Cir. 1965), affg. a Memorandum Opinion of this Court. ⁹ In considering what action we should take on respondent's motion, we think it significant that the substantive issue, which respondent seeks to place before the Court, is already the subject of a pending case with respect to petitioners' taxable year 1977. See pp. 858-859 supra. Thus, petitioners will, in any event, be put to the expense of defending the substantive issue of the disallowance of the deductions in respect of the video tape production. Moreover, we note that the case has not yet been set for trial. Thus, no element of surprise is involved.

In view of the foregoing, we can see no prejudice to petitioners in granting respondent's motion. We observe, however, that we would not necessarily reach the same conclusion if we did not have the ameliorating circumstance of the pendency of the case involving the taxable year 1977. We do not think that our holding that a deficiency notice is valid for jurisdictional purposes requires us to conclude that respondent may amend his answer as a matter of right and irrespective of the circumstances at any time "at or before the hearing or a rehearing" of a case (see sec. 6214(a)), if, in the exercise of our discretion, we should determine that respondent should not be permitted to do so. Cf. Jasionowski v. Commissioner, 66 T.C. 312">66 T.C. 312, 66 T.C. 312">317 (1976). See also Commissioner v. Long's Estate, 304 F.2d 136">304 F.2d 136, 304 F.2d 136">144 (9th Cir. 1962); Koufman v. Commissioner, 69 T.C. 473">69 T.C. 473, 69 T.C. 473">476 (1977); Estate of Horvath v. Commissioner, 59 T.C. 551">59 T.C. 551, 59 T.C. 551">554-556 (1973).1983 U.S. Tax Ct. LEXIS 11">*33 ¹⁰ Respondent will, of course, have the burden of proof on the issues raised by the amendment to his answer. Rule 142(a).

Our granting of respondent's motion for leave to file the amendment to his answer obviously results in the existence of issues of fact which preclude the granting of petitioners' motion for summary judgment.

81 T.C. 855">*865 Petitioners' motion to dismiss for lack of jurisdiction will be denied.

Respondent's motion for leave to file amendment to answer will be granted.

Petitioners' motion for summary judgment will be denied.

Chabot, J., concurring: Tax returns are not supposed to be merely negotiation documents. Similarly, notices of deficiency are not supposed to be merely negotiation documents. Each such document has legal consequences. Each such document ought to be prepared with care, as befits documents the mere mailing of which has significant legal consequences.

1983 U.S. Tax Ct. LEXIS 11">*34 The notice of deficiency in the instant case clearly was not prepared with care. The notice ignores petitioners' tax return, which had been filed about 33 months earlier. The notice asserts petitioners' involvement in a tax shelter in which petitioners were not involved and disallows a deduction which petitioners did not claim. Finally, the notice applies a marginal tax rate of 70 percent to determine the tax deficiency.

The notice acknowledges the likelihood of errors, at least as to those flowing from ignoring petitioners' tax return, but seeks to excuse respondent's precipitous action because this action was taken "In order to protect the government's interest and since your original income tax return is unavailable at this time".

Respondent should not seek to excuse his failure to do his job properly by claiming that his irresponsible actions are taken "to protect the government's interest". The Congress has defined the Government's interest. Part of that definition of the Government's interest (as distinct from the tax collector's interest) is the statute of limitations. The Congress has determined that respondent ordinarily has 3 years to mail an income tax notice of deficiency. 1983 U.S. Tax Ct. LEXIS 11">*35 If respondent needs more time to complete the process of auditing and sending a meaningful notice of deficiency, then respondent should ask the Congress for a longer statute of limitations. If respondent needs more auditors, then respondent should ask the Congress for the 81 T.C. 855">*866 funds necessary to hire and train more auditors. If respondent needs more computer capability, then respondent should ask the Congress for the funds and authority necessary to secure the expanded computer capability and to provide appropriate training programs for his computer personnel.

When respondent sent the notice of deficiency in the instant case, he had all the information necessary to show that the statements in the notice of deficiency were incorrect and that these errors were material. Almost 8 months after mailing the notice of deficiency, respondent got around to acknowledging that he already had the information which showed that his notice of deficiency was wrong. Respondent abused his authority both by acting hastily to send the notice of deficiency and by acting leisurely to acknowledge his earlier error. Notwithstanding this abuse, the notice of deficiency meets all the formal requirements1983 U.S. Tax Ct. LEXIS 11">*36 that this Court has hitherto specified for such documents. Accordingly, I agree with the majority's analysis as to petitioners' motion to dismiss for lack of jurisdiction, and with their denial of this motion.

Rule 41(a), Tax Court Rules of Practice and Procedure, provides that, in the circumstances of the instant case, respondent was permitted to amend his answer within 30 days after it was served. "Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be given freely when justice so requires." (Emphasis supplied.)

The issue in dispute in the instant case is already before this Court because of another notice of deficiency and another petition for a different year and so, regardless of how we decide the motions before us in the instant case, this Court will be put to the trouble of deciding the issue and petitioners will be put to the trouble of presenting their view as to this issue. If it were not for this fortuitous event, I would conclude that justice did not require us to grant respondent's motion for leave to file an untimely amendment to his answer. Because of the peculiar facts in the instant case, 1983 U.S. Tax Ct. LEXIS 11">*37 I join in the majority's conclusion that respondent's motion should be granted.

Respondent should be aware that a long history of abuse of governmental powers has in the past caused courts to overrule prior analysis as to the effects of such abuse. Perhaps the most striking illustration of the courts' finally becoming "fed up" with such abuse is with regard to the admissibility of illegally 81 T.C. 855">*867 obtained evidence. See, e.g., discussion in Linkletter v. Walker, 381 U.S. 618">381 U.S. 618, 381 U.S. 618">636-637 (1965). Respondent's action in the instant case, taken "to protect the government's interest", has very nearly injured the Government's interest. If respondent continues to take such precipitous action in the future, it is likely that the Government's interest will be severely injured.

Swift, J., concurring: I concur in the majority opinion but disagree with the suggestion therein, in Judge Chabot's concurring opinion, and in Judge Whitaker's dissent that but for the presence of a similar issue before this Court for taxable year 1977, the Commissioner's motion to amend under Rule 41(a), Tax Court Rules of Practice and Procedure, would and should be denied.

Where1983 U.S. Tax Ct. LEXIS 11">*38 the Commissioner has been severely delinquent in moving to amend his answer to raise a new issue and where that delinquency results in significant prejudice to the taxpayer, this Court should not be hesitant to deny a motion to amend. However, the facts of this case do not begin to establish any such delinquency or prejudice. On November 29, 1982, just 4 1/2 months after the petition was filed, the Commissioner notified taxpayers of the issue concerning the video tape tax shelter, and on April 5, 1983, the Commissioner's motion to amend was filed. No discovery has occurred. No significant pretrial proceedings have occurred due to the dispute over the jurisdictional issue.

Factors which might result in a denial of a motion to amend an answer (e.g., stale evidence, unavailable witnesses or documents, passage of undue time, remoteness in time of taxable years involved in the underlying dispute, or completion of discovery and/or trial) are not present in this case. The majority opinion correctly concludes that the Commissioner's motion to amend its answer should be granted.

Whitaker, J., concurring in part and dissenting in part: I agree1983 U.S. Tax Ct. LEXIS 11">*39 with the majority that the deficiency notice is valid and 81 T.C. 855">*868 hence that we acquired jurisdiction upon the filing of the petition in this case. Thus, petitioners' motion to dismiss for lack of jurisdiction must be dismissed. I strongly disagree, however, with the granting of respondent's motion for leave to amend the answer and the consequent denial of petitioners' motion for summary judgment.

The majority states: "In view of the foregoing, we can see no prejudice to petitioners in granting respondent's motion." In finding no prejudice, the majority places emphasis on the pendency before this Court of the prior year which includes the same, or an issue substantially similar, to the one which respondent seeks now to raise in the amended answer. The opinion totally ignores the sequence of events. The statutory notice was mailed on June 14, 1982, and the petition was filed on July 7, 1982. Respondent, however, chose to wait until November 29, 1982, to advise petitioners informally of his error. His motion for leave to amend his answer was not filed until April 5, 1983. In the interim, petitioners have incurred substantial expense. Perhaps if respondent, in a timely filed1983 U.S. Tax Ct. LEXIS 11">*40 answer, had conceded that the statutory notice was erroneous and had raised the issue which respondent now seeks to raise, the majority's action would at least be defensible. But I cannot justify now excusing respondent's gross negligence in the issuance of the statutory notice, compounded by the long delay in placing before petitioners and this Court the proper issue.

Rule 41(a) directs that leave to amend "shall be given freely when justice so requires." I would hold that justice requires that we decline to grant leave to amend. Respondent's actions warrant more than a mere slap on the wrist. I would deny the motion for leave to amend the answer and grant petitioners' motion for summary judgment.

Fay, J., dissenting: I agree with Judge Chabot's concurring opinion insofar as he charges that respondent acted irresponsibly in preparing the notice of deficiency in this case. However, I disagree with his conclusion that the notice of deficiency nevertheless satisfies the formal requirements for such documents. 81 T.C. 855">*869 Accordingly, I would grant petitioners' motion to dismiss for lack of jurisdiction.

Sterrett, J., dissenting: The majority grants no substantive meaning 1983 U.S. Tax Ct. LEXIS 11">*41 to the statutory word "determination," forbids judicial review of the respondent's interpretation of the term, forces the recipient to court on the merits, and leaves him with the remedy that the trial judge will shift the burden of proof when convinced that an abuse has occurred.

Thus, it is that, under the majority opinion, the following qualifies as a valid statutory notice of deficiency within the meaning of sections 6211 and 6212 of the Code.

Dear Taxpayer:

There is a rumor afoot that you were a participant in the Amalgamated Hairpin Partnership during the year 1980. Due to the press of work we have been unable to investigate the accuracy of the rumor or to determine whether you filed a tax return for that year. However, we are concerned that the statute of limitations may be about to expire with respect to your tax liability for 1980.

Our experience has shown that, as a general matter, taxpayers tend to take, on the average, excessive (unallowable) deductions, arising out of investments in partnerships comparable to Amalgamated that aggregate some $ 10,000. Our experience has further shown that the average investor in such partnerships has substantial taxable income and 1983 U.S. Tax Ct. LEXIS 11">*42 consequently has attained the top marginal tax rate.

Accordingly, you are hereby notified that there is a deficiency in tax in the amount of $ 7,000 due from you for the year 1980 in addition to whatever amount, if any, you may have previously paid.

Sincerely yours,

Commissioner of Internal Revenue

I dissent.

Goffe, J., dissenting: I would hold that the Commissioner has not "[determined] a deficiency" within the meaning of section 6212(a). This section requires him to do so as a condition precedent to the mailing of "notice of such deficiency" 81 T.C. 855">*870 to a taxpayer. Accordingly, the document mailed to petitioners on June 14, 1982, cannot constitute a notice of deficiency and cannot form the basis for filing a petition to invoke the jurisdiction of this Court. Petitioners' motion to dismiss for lack of jurisdiction should be granted.

The majority's holding that the purported notice of deficiency is valid is based upon cases dealing with the language of notices of deficiency. The instant case, however, concerns those actions which the Commissioner must take prior to mailing notices of deficiency.

The majority, without the citation of any authority, concludes that section 1983 U.S. Tax Ct. LEXIS 11">*43 6211(a), which defines a deficiency, "simply outlines the method by which a notice of deficiency should be constructed and does not affect the jurisdiction of this Court." This interpretation is too limited and fails to integrate the extensive usage of the term "deficiency" in the provisions granting jurisdiction to the Tax Court. "[It] is not the existence of a deficiency but the Commissioner's determination of a deficiency that provides a predicate for Tax Court jurisdiction." Hannan v. Commissioner, 52 T.C. 787">52 T.C. 787, 52 T.C. 787">791 (1969).

The definition of a "deficiency" in section 6211(a), and the limited grant of authority to the Secretary in issuing notices of deficiency in section 6212(a), mandate the procedure by which the Commissioner may lawfully issue "statutory notices." When, as in the instant case, the Commissioner blatantly and intentionally disregards these limitations upon his statutory authority, we should not confer jurisdiction which, as a matter of law, does not exist.

This is an issue of first impression. The statutory provisions involved here have not previously been construed by the courts. The first step, therefore, should be 1983 U.S. Tax Ct. LEXIS 11">*44 an examination of the applicable statutory language. Janowski v. International Brotherhood of Teamsters, Etc., 673 F.2d 931">673 F.2d 931, 673 F.2d 931">936 (7th Cir. 1982), cert. denied    U.S.    (1983). The Supreme Court recently reviewed this analytical process in American Tobacco Co. v. Patterson, 456 U.S. 63">456 U.S. 63, 456 U.S. 63">68 (1982), and declared that:

As in all cases involving statutory construction, "our starting point must be the language employed by Congress," Reiter v. Sonotone Corp., 442 U.S. 330">442 U.S. 330, 442 U.S. 330">337 (1979), and we assume "that the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U.S. 1">369 U.S. 1, 369 U.S. 1">9 (1962). Thus, "[absent] a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." 81 T.C. 855">*871 Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102">447 U.S. 102, 447 U.S. 102">108 (1980).

Applying this Supreme Court mandate requiring, at least initially, a literal examination of the statutory language in issue, it is apparent that Congress has enacted a comprehensive definition1983 U.S. Tax Ct. LEXIS 11">*45 of what constitutes a "deficiency." In section 6211(a), Congress declared that this term of art is:

the amount by which the tax imposed by subtitle A or B, or chapter 41, 42, 43, or 44 exceeds the excess of --

(1) the sum of

(2) the amount of rebates, as defined in subsection (b)(2), made.

[Emphasis added.]