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Kennedy v. Commissioner of Internal Revenue

November 20, 1964

TOMIE KENNEDY, PETITIONER,
v.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT



Author: Hastings

Before HASTINGS, Chief Judge, and DUFFY AND SCHNACKENBERG, Circuit Judges.

HASTINGS, Chief Judge.

Petitioner Tomie Kennedy, pro se, seeks review of an order of the Tax Court of the United States dismissing his petition seeking a redetermination of an assessed deficiency in his federa' income tax for the taxable year 1960. The Tax Court determined that petitioner owed a deficiency of $585 for 1960. Petitioner further seeks review of the Tax Court's refusal to redetermine an assessed deficiency against him for the taxable year 1961. This appeal was submitted on the briefs and record without oral argument.

On April 15, 1961, petitioner filed his federal income tax return for the taxable year ending December 31, 1960.

On June 4, 1962, Commissioner issued a notice of deficiency for the taxable year 1960 in which he disallowed the dependency exemptions claimed by petitioner for his four daughters on the ground that petitioner failed to prove he contributed over half of their support.

On August 17, 1962, petitioner filed a timely petition with the Tax Court seeking a redetermination of the deficiency.

On February 6, 1963, Commissioner issued a notice of deficiency for the taxable year 1961 in which he again disallowed these dependency exemptions. This deficiency notice was mailed to petitioner on February 6, 1963, by certified mail. On May 15, 1963, petitioner filed with the Tax Court a motion for leave to amend the petition previously filed for 1960, to add the year 1961.

Commissioner objected to this motion to amend on the ground that such amendment was improper and that if the motion was treated as a petition for the year 1961 it would not have been timely filed.

Petitioner filed a pleading entitled "Petitioner's Motion To Strike The Respondent's Objections," in which he stated he had received the deficiency notice for the taxable year 1961 on February 14, 1963. He argued that the ninety-day period for filing a petition should be deemed to run from the time of his receipt of the notice of deficiency.

The Tax Court held a hearing on June 19, 1963 and denied this motion. Petitioner had notice of this hearing but was not present.

On February 24, 1964, this case was called for trial before the Tax Court. Petitioner was present and appeared pro se. He informed the court he had no evidence to present with respect to the taxable year 1960. On motion of Commissioner, the petition with respect to 1960 was dismissed.

Commissioner objected to the introduction of any evidence or testimony with respect to the deficiency for the taxable year 1961 on the ground that the year 1961 was not before the court. This objection was sustained.

The Tax Court's order of dismissal was entered on March 6, 1964. Petitioner filed a timely petition for review.

On review, petitioner contends he contributed over half the support of his four daughters and that he timely filed the motion to amend the ...


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