                         T.C. Memo. 2011-254



                       UNITED STATES TAX COURT



           GERALD J. AND MONICA S. WARE, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 10942-10.              Filed October 31, 2011.



     Gerald J. and Monica S. Ware, pro sese.

     Marshall R. Jones, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    This matter is before the Court on

petitioners’ motion to restrain assessment or collection and

respondent’s motion to dismiss for lack of jurisdiction.

     At the time they filed the petition, petitioners resided in

Alabama.
                               - 2 -

                          FINDINGS OF FACT

     In 2005 petitioners won $993,7281 playing a slot machine at

the Imperial Palace Casino in Biloxi, Mississippi, but they

received only $604,093.   Petitioners believed they received

$389,635 less than they won because of Federal and State income

tax withholding.   According to respondent, the difference

resulted from petitioners’ decision to receive a lump-sum

payment, which was paid out at a discount.

     International Game Technology (IGT), the company responsible

for paying the slot machine winnings, issued petitioners a Form

W-2G, Certain Gambling Winnings, for 2005 that reported $604,093

of gross winnings and zero Federal income tax withheld.

Petitioners, believing that IGT had withheld Federal and State

taxes, changed the Form W-2G that they attached to their Form

1040, U.S. Individual Income Tax Return, for 2005 by writing in

$993,728 for gross winnings and $370,0222 for Federal income tax

withheld.3




     1
         All amounts are rounded to the nearest dollar.
     2
        Petitioners appear to have determined Federal income tax
withheld as follows: $993,728 (gross winnings) - $604,093
(amount petitioners received) - $19,613 (State income tax
withholding according to petitioners) = $370,022.
     3
        Petitioners also changed State income tax withheld from
$18,123 to $19,613. It is unclear on what basis petitioners made
this change. Petitioners also changed the date of the winnings
from July 11, 2005, to June 19, 2005.
                                - 3 -

     On their Form 1040 petitioners reported $993,728 of gambling

winnings as other income and Federal income tax withheld of

$370,022.   Petitioners reported a total tax liability of $239,896

and an overpayment of $130,126, the excess of the amount that IGT

purportedly withheld.   The Internal Revenue Service (IRS) issued

petitioners a refund of $130,126 on April 10, 2006.   The IRS did

not receive any of the $370,022 petitioners claimed IGT withheld.

     On March 22, 2010, respondent issued a notice to petitioners

informing them that the IRS had assessed $370,022 to correct

their overstatement of income tax withholding (March 22 notice).4

The notice also informed them that respondent had determined that

they were liable for penalties for not prepaying tax and for late

payment of tax and interest for late payment.

     On May 12, 2010, petitioners filed a petition with the

Court.    Although petitioners admit they never received a notice

of deficiency, in their petition they state that they were

disputing a notice of deficiency purportedly issued on March 22,

2010.    The petition also states that respondent has ignored

petitioners’ whistleblower claim that alleges that IGT failed to

remit the withheld Federal income tax.    On July 19, 2010,

respondent issued to each petitioner Notice CP 504, “URGENT!!    We

intend to levy on certain assets.    Please respond NOW.”   In

response petitioners filed a motion to restrain collection and


     4
         The March 22 notice was not introduced into evidence.
                                 - 4 -

assessment.     Respondent subsequently filed a motion to dismiss

for lack of jurisdiction.     At the time of the hearing on the

these motions petitioners had requested a collection due process

or equivalent hearing (CDP hearing), and one subsequently was

held, but no notice of determination regarding the CDP hearing

has been issued.

                                OPINION

I.   Motion To Dismiss

     The Tax Court is a court of limited jurisdiction, and we may

exercise our jurisdiction only to the extent authorized by

Congress.   Naftel v. Commissioner, 85 T.C. 527, 529 (1985).      The

Court’s jurisdiction to redetermine a deficiency depends upon the

issuance of a valid notice of deficiency and a timely filed

petition.     Rule 13(a), (c);5 Monge v. Commissioner, 93 T.C. 22, 27

(1989); Normac, Inc. v. Commissioner, 90 T.C. 142, 147 (1988).

     Section 6212(a) authorizes the issuance of a notice of

deficiency.     No particular form is required.   Scar v.

Commissioner, 814 F.2d 1363, 1367 (9th Cir. 1987), revg. on other

grounds 81 T.C. 855 (1983); Jarvis v. Commissioner, 78 T.C. 646,

655-656 (1982).     However, the notice must fulfill the purpose of

providing formal notification that a deficiency in tax has been

determined.     Foster v. Commissioner, 80 T.C. 34, 229-230 (1983),


     5
        Unless otherwise indicated, all section references are to
the Internal Revenue Code, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
                                - 5 -

affd. in part and vacated in part 756 F.2d 1430 (9th Cir. 1985).

The notice is “only to advise the person who is to pay the

deficiency that the Commissioner means to assess him; anything

that does this unequivocally is good enough.”      Olsen v.

Helvering, 88 F.2d 650, 651 (2d Cir. 1937).      The notice must (1)

advise the taxpayer that the Commissioner has, in fact,

determined a deficiency and (2) specify the year and the amount

of the deficiency.   Foster v. Commissioner, supra at 229-230.

     Petitioners argue that the March 22 notice satisfies the

requirements to be a notice of deficiency.      However, petitioners

have not established that the March 22 notice (1) advised

petitioners that respondent determined a deficiency and (2)

specified the year and the amount of the deficiency.

Accordingly, petitioners have failed to show that the March 22

notice operates as a notice of deficiency for purposes of

conferring jurisdiction on this Court.

     Moreover, respondent was not required to issue a notice of

deficiency.   An assessment to correct an overstatement of Federal

income tax withholding is made in the same manner as an

assessment for a mathematical or clerical error appearing on the

return.   Sec. 6201(a)(3).   A notice of assessment arising out of

a mathematical or clerical error is not a notice of deficiency,

and taxpayers cannot file a petition with this Court based on

that assessment.   Sec. 6213(b)(1).     In addition, respondent is
                                  - 6 -

not required to issue a notice of deficiency for the penalties

and interest arising from petitioners’ underpayment of tax.        See

secs. 6665(a), 6601(e)(1).

       Because respondent did not, and was not required to, issue a

notice of deficiency, we lack jurisdiction.      Accordingly, we

shall grant respondent’s motion to dismiss.6

II.    Motion To Restrain

       In the absence of jurisdiction under section 6213, it

follows that the Court has no authority to act on petitioners’

motion to restrain assessment or collection.      See sec. 6213(a).

Accordingly, petitioners’ motion to restrain assessment or

collection will be denied.

III.       Whistleblower Claim

       Petitioners also contend that they filed a Form 211,

Application for Award for Original Information, which respondent

ignored.7      In order to apply for a whistleblower award, an

informant must file a formal claim on Form 211.      Sec. 301.7623-

1(f), Proced. & Admin. Regs.      A determination by the Commissioner

regarding a whistleblower claim can be appealed to the Tax Court


       6
        The Court reminds petitioners that once they receive a
notice of determination following their CDP hearing, they can
petition this Court pursuant to sec. 6330(d)(1) for judicial
review of the determination.
       7
        Petitioners allege that IGT committed fraud by
withholding Federal income tax from their winnings and not
remitting it to respondent.
                                 - 7 -

within 30 days.   Sec. 7623(b)(4); see Cooper v. Commissioner, 135

T.C. 70 (2010).

     Respondent has not issued a determination regarding

petitioners’ whistleblower claim, and there is no evidence that

they filed a Form 211.   Without a determination regarding

petitioners’ whistleblower claim, or even evidence that they

actually filed such a claim, this Court lacks jurisdiction with

respect to the whistleblower claim under section 7623(b).

     To reflect the foregoing,


                                     An appropriate order and order

                                 of dismissal will be entered.
