                        T.C. Memo. 2001-138



                      UNITED STATES TAX COURT



                 KENNETH J. SIGEL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1851-00.                        Filed June 12, 2001.



     Kenneth J. Sigel, pro se.

     Frederick Petrino, for respondent.



                        MEMORANDUM OPINION


     SWIFT, Judge:   This case is before us on respondent's motion

to dismiss.   The issue presented is whether we lack jurisdiction

over petitioner's claims that an addition to tax under section

6654(a) should be waived and that assessed interest should be

abated under section 6404.
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     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the year in issue.


                            Background

      As a result of an error by petitioner in the computation of

his estimated income tax due January 15, 1999, petitioner

underpaid estimated income tax for the last quarter of 1998 by

approximately $11,000.   Upon recognizing the error, on

February 14, 1999, petitioner filed early his individual Federal

income tax return for 1998, and petitioner paid the above

$11,000, plus additional taxes owed.

     On September 20, 1999, respondent indicated by letter to

petitioner that petitioner owed $594 as an addition to tax under

section 6654(a) relating to petitioner's $11,000 underpayment of

estimated income tax for the last quarter of 1998 and that

petitioner owed $5 of interest with respect thereto.

     On October 29, 1999, by letter to respondent's Office of the

Taxpayer Advocate in Memphis, Tennessee, petitioner requested

that, based on his unblemished record in years before 1998 of

full compliance with Federal tax laws, the $594 addition to tax

be waived and that the $5 of interest be abated.

     On December 9, 1999, respondent mailed a letter to

petitioner explaining generally how additions to tax for

underpayment of estimated income taxes are computed.
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     On January 10, 2000, by letter to respondent's Office of the

Taxpayer Advocate in Nashville, Tennessee, petitioner again

requested waiver of the $594 addition to tax and abatement of the

$5 of interest.

     By letter dated January 25, 2000, respondent's Nashville

Office of the Taxpayer Advocate informed petitioner that his

requests for waiver of the addition to tax and for abatement of

the interest were denied because it was concluded that

petitioner's $11,000 underpayment of estimated income tax for the

last quarter of 1998 was not caused by casualty, disaster, or

other unusual circumstances and because it was concluded that

imposition of the addition to tax would not be against equity and

good conscience.   The letter from respondent also informed

petitioner that he possessed certain “appeal rights”, but the

letter did not explain those appeal rights.

     On February 15, 2000, petitioner filed his petition with the

Tax Court seeking relief from the above addition to tax and

abatement of the above interest.   At the time the petition was

filed, petitioner resided in the Bronx, New York.

     As of November 30, 2000, the date of trial, petitioner had

not filed a Form 843, Claim for Refund and Request for Abatement

of Interest, and respondent had not issued to petitioner a notice

of final determination with regard thereto.
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                            Discussion

     Section 6654(a) provides additions to tax for taxpayers who

fail to pay a sufficient amount of estimated income taxes.      See

Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980); Hart v.

Commissioner, T.C. Memo. 2000-78.      Respondent has the authority

to waive a section 6654(a) addition to tax where respondent

determines that by reason of a “casualty, disaster, or other

unusual circumstances the imposition of such addition to tax

would be against equity and good conscience.”     Sec.

6654(e)(3)(A).

     Generally, the Tax Court has jurisdiction to redetermine

additions to tax attributable to a deficiency under the

deficiency procedures of section 6213(a).     See Reese v.
Commissioner, T.C. Memo. 1997-346.     Because such additions to tax

generally are assessed and collected in the same manner as income

taxes, respondent generally issues a notice of deficiency before

collecting those additions to tax.     See secs. 6665(a) and (b),
6213(a).   Taxpayers may then petition the Tax Court (within 90

days of receiving the notice of deficiency) to redetermine the

additions to tax determined by respondent.     See sec. 6213(a).

     Additions to tax under section 6654(a), however, are subject

to the deficiency procedures of section 6213(a) only if no

Federal income tax return was filed for the year before the

Court, and the Tax Court therefore has jurisdiction to

redetermine additions to tax under section 6654(a) only if no

Federal income tax return was filed.     See sec. 6665(b)(2);
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Meyer v. Commissioner, 97 T.C. 555, 562 (1991); Hart v.

Commissioner, T.C. Memo. 2000-78; Miner v. Commissioner, T.C.

Memo. 1999-358; Harvey v. Commissioner, T.C. Memo. 1999-229;

Fujita v. Commissioner, T.C. Memo. 1999-164, affd. without

published opinion 225 F.3d 662 (9th Cir. 2000); Cherry v.

Commissioner, T.C. Memo. 1998-360; Reese v. Commissioner, supra.

In other words, if a Federal income tax return is filed for the

year before the Court, a proposed section 6654(a) addition to tax

will not be subject to the deficiency procedures of section

6213(a), no notice of deficiency will be mailed to the taxpayer,

and the Tax Court will not have jurisdiction to redetermine the

addition to tax under section 6654(a) relating to the

underpayment of estimated income tax.   See sec. 6665(b)(2).

     As stated, petitioner timely filed his 1998 Federal income

tax return.   Accordingly, we lack jurisdiction under section

6665(b)(2) to redetermine the $594 addition to tax relating to

petitioner's underpayment of estimated income tax for the last

quarter of 1998.

     With regard to petitioner's claim that we abate the $5 of

interest, the Tax Court under section 6404(i)(1) does not have

jurisdiction to decide whether respondent's failure to abate

interest under section 6404 constitutes an abuse of discretion

unless or until respondent has made a “final determination” not

to abate interest.   See Bourekis v. Commissioner, 110 T.C. 20,

25-26 (1998) (declining to treat a notice of deficiency as notice

of final determination not to abate interest); Dai Ho Cho v.
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Commissioner, T.C. Memo. 1998-363 (declining to treat

respondent's 6-month delay responding to a formal request for

abatement of interest as final determination not to abate

interest).

     In order for respondent to make a final determination

regarding a request for abatement of interest, section

301.6404-1, Proced. & Admin. Regs., directs that taxpayers first

file with respondent's appropriate office a formal request for

abatement, Form 843.    See also Bourekis v. Commissioner, supra

at 26.

     As of November 30, 2000, petitioner had not filed a Form

843, and respondent had not made a final determination with

regard to petitioner's request for abatement of the $5 of

interest.    Accordingly, we lack jurisdiction thereof.

     While we empathize with petitioner's situation in light of

the unclear letters petitioner received from respondent,1 we

simply do not have jurisdiction to grant petitioner relief from

either the addition to tax or the related interest.




1
    In respondent's September 20, 1999, December 9, 1999, and
January 25, 2000, letters to petitioner, respondent did not
inform petitioner that before respondent could make a final
determination with regard to the abatement of the $5 of interest
petitioner must submit a Form 843, Claim for Refund and Request
for Abatement of Interest.
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To reflect the foregoing,

                                         An order will be entered

                                    granting respondent's motion

                                    to dismiss for lack of

                                    jurisdiction.
