Civil lzing Tax Procedure: Applying General Federal Learning to Statutory Notices of Deficiency

Tax procedure has been rather isolated from the main currents of civil procedure. Using the statutory notice of deficiency as an exemplar, the article explores how viewing tax procedure issues from the perspective of general civil litigation can facilitate procedural regularity and foster fairness to United States Tax Court contestants. The statutory notice is the document by which the IRS forewarns a taxpayer of impending assessment of tax greater than the amount reported on the taxpayer\u27s return. The article identifies three functions of the notice and their general civil litigation analogues. First, like legal process, it provides the taxpayer with notice and an opportunity to be heard. Second, a valid statutory notice is a prerequisite to Tax Court subject matter jurisdiction. Third, like a complaint in general civil litigation, the notice helps to frame the issues and allocate the burden of proof. Taxpayers\u27 challenges to defective statutory notices are generally framed as notions to dismiss for lack of subject matter jurisdiction on the ground that the notice is invalid. The taxpayer\u27s incentive to make this motion is that only a valid notice tolls the statute of limitations on assessment; accordingly, on dismissal, the statue often will have expired, freeing the taxpayer from liability. The article recommends that the Tax Court borrow the learning of Bell v. Hood, that is, distinguish between allegations adequate to invoke subject matter jurisdiction and the additional requisites for pleading a cognizable claim. By doing so, the Tax Court could distinguish jurisdictional invalidity from other defects, and in turn apply remedies more appropriately geared to the several functions of the statutory notice