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Monday, March 17, 2003


The IRS issued Paul L. Hickey and Nellida F. Hickey separate Notices of Determination Concerning Collection Action(s) for tax years 1996 and 1997 on July 13. On August 8, IRS issued the Hickeys a Notice of Determination Concerning Collection Action(s) for tax year 1998. On August 9, the Hickeys filed a Complaint with the District Court with regard to the notices dated July 13. On September 10, the Hickeys filed an Amendment to their complaint seeking to add a challenge to the notice dated August 8. On February 15, District Court issued an order dismissing the complaint for lack of subject matter jurisdiction. On March 1, the Hickey filed a timely motion for reconsideration with the District Court. On April 11, District Court entered an order denying the motion for reconsideration. On May 15, the Hickeys filed a petition with the Tax Court challenging all of the notices. IRS moved to dismiss for lack of jurisdiction due to late filing.

Tax Court held that because each tax year is a separate legal issue, the motion to amend the complaint with the District Court did not make the addition of the new tax year effective as of the original date of the return, but as of the date of the motion to amend. Thus the date of filing to challenge the August 8 notice was September 10. This was more than 30 days, and so that notice was not challenged timely. Tax Court dismissed the petition with regards to tax year 1998.

However, Tax Court also ruled that the District Court�s order denying reconsideration changed to date dismissal from District Court to the date of the order denying reconsideration. The petition in Tax Court was filed within 30 days after the order denying reconsideration, therefore Tax Court ruled that subject matter jurisdiction with respect to tax years 1996 and 1997 was proper.

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