UNITED STATES TAX COURT
THEODORE FREEMAN, )
Petitioner, )
v. ) Docket No.xxxx
COMMISSIONER OF INTERNAL REVENUE, )
Respondent. )
THE RESPONDENT OBJECTS to petitioner’s Motion to Vacate decision entered on March 7, 2007.
IN SUPPORT THEREOF, the respondent respectfully states:
1. The Motion to Vacate requests the Court to allow petitioner to now file with the IRS a new Request for a Due Process Hearing (Form 12153). After a new CDP hearing petitioner requests that he be allowed to file new pleadings with the Court. Petitioner also seeks leave to reword his previous letters to the IRS and pleadings to this Court and states that he withdraws any previous letters to IRS or previous pleadings with the Court which were frivolous or groundless or which raised constitutional, political or religious issues.
2. As grounds for the requested relief petitioner for the first time raises as an issue that he did not receive a Statutory Notice of Deficiency or Notice and Demand letter. Petitioner does not specify for which year or years he did not receive the notices. This issue was not raised at the CDP hearing nor was it raised in the Tax Court proceeding.
3. This Court will only consider issues raised at the CDP hearing. Magana v. Commissioner, 118 T.C. 488, 493 (2002). Furthermore, Tax Court Rule 331(b)(4) requires a petition to contain separately lettered, clear and concise assignments of each and every error which petitioner alleges to have been committed in the notice of determination. Tax Court Rule 331(b)(5) requires clear and concise lettered statements of the facts underlying each error. Any issue not so raised in the petition about not receiving a Notice of Deficiency or a Notice and Demand letter. Therefore, that issue is deemed conceded.
4. The Tax Court has held that it is guided primarily by whether it would be in the interest of justice to vacate a prior decision. But, the Court also recognizes that litigation must end anytime. Cowan v. Commissioner, T.C. Memo. 2006-255. Justice does not demand that the decision in this case be vacated; petitioner makes no allegation of substantial error (other than his own) and there are no unusual circumstances present here. New issues raised for the first time in a motion to vacate a decision are not considered. Robert Half Trust v. Commissioner, 62 T.C. 145 (1974), affirmed on this issue, 510 F.2d 43 (1st Cir. 1975). As the Court explained in Koufman v. Commissioner, 69 T.C. 473 (1977), “If the Court granted a second chance to every party who lost because of his failure to act in some manner… [i]n effect [it] would be telling the parties that if they were not satisfied with the first opinion, try again.” 96 T.C. at 476.
5. As to the Court’s opinion, petitioner only complains about the Court’s holding that the Appeals officer did not abuse her discretion in determining a face-to-face hearing would not be productive. As the Court stated in the opinion, petitioner only pursued frivolous and groundless arguments and therefore was properly denied a face-to-face Appeals hearing.
6. Petitioner cites a case, “Marrett v. CIR” which respondent, after much searching, could not find. Petitioner does not identify in his motion any legitimate issue he raised with the Appeals Officer which would justify a face-to-face hearing.
7. Petitioner has not shown any error in the Court’s opinion. Regarding the filing of a new form 12153, receiving a new CDP hearing, and the filing of new Tax Court pleadings to raise new issues, it has long been the rule of this Court dispose of all timely and properly raised issues in one proceeding to avoid piecemeal and protracted litigation. Fazzio v. Commissioner, T.C. Memo. 1991-130
WHEREFORE, it is prayed that petitioner’s Motion to Vacate Decision be denied.