                 Case: 12-11711         Date Filed: 12/05/2012      Page: 1 of 7




                                                                        [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT
                               ________________________

                                       No. 12-11711
                                   Non-Argument Calendar
                                 ________________________

                                      Agency No. 10942-10




GERALD JAMES WARE,
MONICA SOMONIA WARE,

llllllllllllllllllllllllllllllllllllllllPetitioners - Appellants,

versus

COMMISSIONER OF IRS,

llllllllllllllllllllllllllllllllllllllllRespondent - Appellee.

                                ________________________

                               Petition for Review of a Decision
                                      of the U.S.Tax Court
                                ________________________

                                       (December 5, 2012)

Before JORDAN, WILSON and ANDERSON, Circuit Judges.
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PER CURIAM:

      Appellants Gerald James Ware and Monica Somonia Ware, pro se

taxpayers, appeal the Tax Court’s order denying their motions for reconsideration

and to vacate or reverse the Tax Court’s order of dismissal. The Tax Court

dismissed the Wares’ claims for lack of jurisdiction under I.R.C. § 6213(a) and

Tax Court Rule 13(a). 26 U.S.C. § 6213(a); Tax Ct. R. 13(a). The Commissioner

argues that because the Wares did not receive a notice of deficiency, the Tax Court

lacked the jurisdiction to hear their case. The Wares argue that two letters from

the IRS, a March 22, 2010 change notice and a March 23, 2010 adjustment to their

income tax liability, ought to be considered de facto notices of deficiency. In the

alternative, the Wares assert that they are entitled to a notice of deficiency as a

matter of law. In addition, the Wares contend that the Tax Court should have

considered their whistleblower claims. The Commissioner argues that the Wares

never filed a whistleblower claim. After a review of the record and the briefs, we

affirm.

      We have jurisdiction over this appeal under 26 U.S.C. § 7482(a), which

specifies that we review Tax Court decisions “in the same manner and to the same

extent as decisions of the district courts in civil actions tried without a jury.” 26

U.S.C. § 7482(a)(1). Accordingly, we review the Tax Court’s application of the

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Internal Revenue Code de novo and its findings of fact for clear error. See Estate

of Jelke v. Comm’r, 507 F.3d 1317, 1321 (11th Cir. 2007).

      It is well-established that the Tax Court is a court of limited jurisdiction and

that it may exercise its jurisdiction only to the extent permitted by Congress. See

26 U.S.C. § 7442; Comm’r v. McCoy, 484 U.S. 3, 6, 108 S.Ct. 217, 98 L.Ed.2d 2

(1987). Section 6213(a) of the Internal Revenue Code provides the Tax Court

with the jurisdiction to redetermine deficiencies assessed by the Commissioner.

See 26 U.S.C. § 6213(a). The Tax Court may only hear a deficiency case when the

Commissioner issues a notice of deficiency to the taxpayer and the taxpayer files a

timely petition for redetermination with the Tax Court. See 26 U.S.C. §6213(a);

Tax Ct. R. 13(a). Consequently, this case turns on whether the Wares received, or

were entitled to receive, a notice of deficiency.

      The Wares argue that the March 22 and March 23 letters meet the criteria

for a notice of deficiency under 26 U.S.C. § 6212. The Internal Revenue Code

defines deficiency as the difference between the taxpayer’s liability and the

liability shown on the taxpayer’s return. 26 U.S.C. § 6211. The Commissioner is

authorized to send notice whenever he determines that “there is a deficiency in

respect of any tax imposed.” 26 U.S.C. § 6212(a). While the Code does not

prescribe a particular form for a deficiency notice, the notice at a minimum must

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“indicate that the IRS has determined that a deficiency exists for a particular year

and specify the amount of the deficiency.” Benzvi v. Comm’r, 787 F.2d 1541,

1542 (11th Cir. 1986). In essence, the notice of deficiency advises a person that

the Commissioner means to assess him. See id. at 1542. We turn to the question

of whether the letters constitute notices of deficiency.

       We agree with the Appellee that the letters, individually and collectively, do

not amount to a notice of deficiency. The March 22 letter serves as a notice to the

Wares that the IRS reduced the amount of income tax withheld by the Wares in

2005. The letter states: “We changed your 2005 account to correct your total

federal income tax withheld.” The March 23 letter is a companion piece to the

previous day’s letter. It provides the Wares with an IRS-prepared Form 4549-A

that catalogues the reduction to the Wares’ adjusted tax liability. Because both

letters served merely to notify the Wares’ of the reductions in their adjusted tax

liability, they cannot be said to have notified the Wares of a deficiency—the

difference between their liability and the liability shown on their tax return. See

Benzvi, 787 F.2d at 1542. In other words, these letters addressed only the former,

and not its relationship to the latter.

       We also agree with the Appellee that the Wares were not entitled to a notice

of deficiency. The Commissioner may assess an overstatement of credit for

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income tax withheld “in the same manner as in the case of a mathematical error

appearing upon the return . . . .” 26 U.S.C. § 6201(a)(3). When the Commissioner

assesses a mathematical or clerical error on a return, notice of the assessment

“shall not be considered as a notice of deficiency . . . and the taxpayer shall have

no right to file a petition with the Tax Court based on such notice . . . .” 26 U.S.C.

§ 6213(b)(1). It is clear from the record that the Commissioner assessed the Wares

for an overstatement of income tax withheld in 2005. In 2005 the Wares won a

jackpot playing a slot machine at the Imperial Palace Casino in Biloxi,

Mississippi. The stated amount of the jackpot was $993,728, the winnings to be

paid by International Game Technology (IGT). The Wares received $604,093.

The Wares maintain that IGT withheld $389,635 in federal income taxes, and

therefore they owe no taxes on their winnings. The Commissioner argues that the

Wares elected to receive a lump-sum of $604,093 rather than an annuity equaling

$993,728 in the aggregate. We need not settle this dispute to address the issues on

appeal. It is enough to say that the Commissioner assessed the Wares for an

overstatement of credit for income tax withheld, and that he determined the

overstatement to be due to a mathematical or clerical error. Consequently, the

letters from March 2010—in addition to reducing the Wares’ adjusted tax

liability—are also notices of assessment. Without a notice of deficiency, the Tax

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Court had no jurisdiction over the Wares. It also follows that the Tax Court could

not enjoin tax assessment and collection.

       The Wares’ final argument is that the Tax Court had jurisdiction over their

whistleblower claim. 26 U.S.C. § 7623.1 Under §7623, the Secretary of the

Treasury may pay a reward to an individual for bringing information to the IRS

about the underpayment of taxes. A whistleblower must file a Form 211:

Application for Reward for Original Information. 26 C.F.R. § 301.7623-1(f). If

the whistleblower disputes the determination regarding an award, the

whistleblower may appeal the determination to the Tax Court within thirty days.

26 U.S.C. § 7623(b)(4). The Wares failed to file a Form 211. As a result, the

Secretary did not issue a determination on a whistleblower claim, and the Tax

Court could not hear the case.

       In sum, the Wares received neither a notice of deficiency from the

Commissioner nor a whistleblower determination from the Secretary of the

Treasury. Because the Wares have not shown any statutory provision under which


       1
         Although the venue for most appeals from the Tax Court is geographically tied to a
petitioner’s legal residence, the normal route for a whistleblower claim is an appeal to the Court
of Appeals for the District of Columbia. See 26 U.S.C. § 7482(b)(1) (“If for any reason no
subparagraph of the preceding sentence applies, then such decisions may be reviewed by the
Court of Appeals for the District of Columbia.”). However, neither party suggested bifurcating
this case, and we agree that bifurcation would be inappropriate. See United States v. Horiri, 482
U.S. 64, 69 n.3, 107 S. Ct. 2246, 2250 n.3, 96 L.Ed.2d 51 (1987).

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the Tax Court had jurisdiction to consider their claims, we affirm the Tax Court’s

dismissal of their petition.

      AFFIRMED.




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