                      119 T.C. No. 14



                UNITED STATES TAX COURT



         EVANS PUBLISHING, INC., Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 8278-00.                Filed November 7, 2002.


     P moved to strike paragraphs from the answer to
the second amended petition, in which paragraphs R
affirmatively alleged that additional individuals (H
and W) were employees of P, that P compensated H and W
through the payment of commissions, personal expenses,
and wages disguised as loans, and that P was liable for
additional employment tax, additions to tax, and
penalties.

     Held: Pursuant to sec. 7436, I.R.C., the Court
has jurisdiction over R’s affirmative allegations
contained in the answer to the second amended petition
that the additional individuals are employees of P and
that P is liable for additional employment taxes,
additions to tax, and penalties for the taxable periods
in the notice of determination.

     Held, further, pursuant to sec. 7436, I.R.C., the
Court has jurisdiction to determine the amount of wages
P paid to individuals that R determined, or alleged in
the answer, to be employees of P.
                               - 2 -


          Held, further, P’s motion to strike is denied.


     Brian C. Bernhardt, Paul L. B. McKenney, and Eric M. Nemeth,

for petitioner.

     Linda C. Grobe, for respondent.



                              OPINION


     VASQUEZ, Judge:   This case is before the Court on

petitioner’s Motion to Strike Paragraphs 9 and 10 of the Answer

to Second Amended Petition.   The parties have presented both

written and oral arguments on the motion.

Background

     Respondent issued to petitioner a Notice of Determination

Concerning Worker Classification Under Section 7436 (notice of

determination).1   Respondent determined that petitioner’s sales

personnel and graphics personnel should have been treated as

employees rather than independent contractors for 1993, 1994, and

1995, and made adjustments to the amounts of employment taxes2


     1
        Unless otherwise indicated, all references to secs.
6214(a) and 7436 are to the Internal Revenue Code, as amended,
all other section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure.
     2
        For convenience, we use the term “employment taxes” to
refer to taxes under the Federal Insurance Contributions Act
(FICA), ch. 736, secs. 3101-3128, 68A Stat. 415 (1954), and the
Federal Unemployment Tax Act (FUTA), ch. 736, secs. 3301-3311,
                                                   (continued...)
                               - 3 -

owed by petitioner for 1993, 1994, and 1995.   Respondent also

determined additions to tax pursuant to section 6651(a)(1) and

penalties pursuant to section 6662.

     On July 27, 2000, petitioner petitioned this Court.

Petitioner disputed that its sales personnel and graphics

personnel should have been treated as employees rather than

independent contractors; i.e., petitioner sought a

redetermination of the classification determined by respondent.

Petitioner also disputed the amounts of the employment taxes,

additions to tax, and penalties that were set forth on the

schedule accompanying the notice of determination.

     On September 26, 2000, respondent filed a Motion to Dismiss

for Lack of Jurisdiction and to Strike as to the Amounts of

Employment Taxes Proposed for Assessment by the Respondent

(motion to dismiss).   Respondent sought to dismiss issues

regarding the amounts of the employment taxes, the additions to

tax, and the penalties and to strike from the petition references

to the amounts of petitioner’s employment tax.   Respondent relied

on our decision in Henry Randolph Consulting v. Commissioner, 112

T.C. 1 (1999) (holding that we did not have jurisdiction to

decide the amount of employment tax liabilities).

     On October 17, 2000, petitioner filed a response to


     2
      (...continued)
68A Stat. 439 (1954), and income tax withholding, secs. 3401-
3406.
                               - 4 -

respondent’s motion to dismiss.    In the response, petitioner

stated it wanted to file an amended petition in which petitioner

disputed respondent’s determination that petitioner’s sales

personnel and graphics personnel were employees rather than

independent contractors but no longer disputed the adjustments to

tax and interest determined by respondent.    We granted

respondent’s motion to dismiss and filed the amended petition.

     On December 18, 2000, respondent filed an answer to the

amended petition (first answer).    In the first answer, respondent

affirmatively alleged that Will L. Evans and Sherry L. Evans (Mr.

and Mrs. Evans), shareholders of petitioner, were employees of

petitioner during 1993, 1994, and 1995, and that petitioner is

not entitled to “safe harbor” relief as provided by section 530

of the Revenue Act of 1978, Pub. L. 95-600, 92 Stat. 2763, 2885

(section 530), with respect to Mr. and Mrs. Evans’ classification

as employees.   Respondent affirmatively alleged additional facts

to support this conclusion, including the fact that petitioner

compensated Mr. and Mrs. Evans through the payment of commissions

and other wages disguised as shareholder loans.

     On April 18, 2001, petitioner filed a Motion for Leave to

File Second Amended Petition (motion for leave).    In the motion

for leave, petitioner relied on Congress’s amendment of section

7436(a), retroactive to the effective date (August 5, 1997) of

section 7436(a), which provided this Court with jurisdiction to
                               - 5 -

decide the correct amounts of employment taxes which relate to

the Secretary’s determination concerning worker classification.

Community Renewal Tax Relief Act of 2000 (CRTRA), Pub. L. 106-

554, sec. 314(f), (g), 114 Stat. 2763A-463; Taxpayer Relief Act

of 1997, Pub. L. 105-34, sec. 1454(a), 111 Stat. 1055.   In light

of Congress’s action, petitioner sought to amend the amended

petition to place into dispute, as it had in its original

petition, the amounts of employment taxes, additions to tax, and

penalties determined by respondent.    Respondent did not object to

the granting of the motion for leave.

     We granted petitioner’s motion for leave and filed the

second amended petition.   In the second amended petition, as in

the original petition, petitioner sought a redetermination of the

classification determined by respondent and disputed the amounts

of the employment taxes, additions to tax, and penalties that

were set forth on the schedule accompanying the notice of

determination.

     On June 15, 2001, respondent filed an answer to the second

amended petition (second answer).   In the second answer,

respondent again affirmatively alleged that Mr. and Mrs. Evans

were employees of petitioner during 1993, 1994, and 1995, and

that petitioner is not entitled to “safe harbor” relief as

provided by section 530 with respect to Mr. and Mrs. Evans’

classification as employees.   Respondent affirmatively alleged
                               - 6 -

additional facts to support this conclusion, including the fact

that petitioner compensated Mr. and Mrs. Evans through the

payment of commissions, personal expenses, and other wages

disguised as shareholder loans.   Respondent also alleged the tax

period, type of tax, amounts of employment taxes, amounts of

additions to tax, and the amounts of penalties petitioner was

liable for regarding the alleged wages paid to Mr. and Mrs.

Evans.

     On July 16, 2001, petitioner filed a Motion to Strike

Paragraphs 9 and 10 of the Answer to Second Amended Petition

(motion to strike).3   On July 31, 2001, respondent filed an

Objection to Petitioner’s Motion to Strike.   On August 20, 2001,

petitioner filed a reply.

     On October 31, 2001, the Court held a hearing on the motion

to strike.   At the hearing, respondent conceded that he has the

burden of proof regarding the classification of Mr. and Mrs.

Evans as employees and the compensation of Mr. and Mrs. Evans

through the payment of commissions and other wages disguised as

shareholder loans.

     At the hearing, the issue arose regarding whether, pursuant

to section 7436, the Court had jurisdiction over additional


     3
        Pars. 9 and 10 of the second answer contain respondent’s
affirmative allegations regarding Mr. and Mrs. Evans’
classification as employees, the compensation of Mr. and Mrs.
Evans through disguised loans, and petitioner’s liability for
additional tax, additions to tax, and penalties.
                                 - 7 -

individuals and additional amounts raised by the Commissioner in

the answer.4    The Court ordered the parties to brief this

jurisdictional issue.

Discussion

I.   Jurisdiction

     It is well settled that the Tax Court is a court of limited

jurisdiction, and we may exercise our jurisdiction only to the

extent authorized by Congress.     Commissioner v. Gooch Milling &

Elevator Co., 320 U.S. 418 (1943); Naftel v. Commissioner, 85

T.C. 527, 529 (1985).     The question of the Court’s jurisdiction

is fundamental and must be addressed when raised by a party or on

the Court’s own motion.     Naftel v. Commissioner, supra at 530.

If we find that we do not properly have jurisdiction to consider

an issue, then we may not decide the issue despite the choice of

the Tax Court as a forum to settle the dispute.     Id.

     A.      Additional Individuals and Additional Amounts

     Section 7436(a) provides:

          SEC. 7436(a). Creation of Remedy.--If, in
     connection with an audit of any person, there is an
     actual controversy involving a determination by the
     Secretary as part of an examination that--

                  (1) one or more individuals performing
             services for such person are employees of such
             person for purposes of subtitle C, or



     4
        The individuals and additional amounts are related to the
taxpayer and taxable periods contained in the notice of
determination.
                                 - 8 -

               (2) such person is not entitled to the
          treatment under subsection (a) of section 530 of
          the Revenue Act of 1978 with respect to such an
          individual,

     upon the filing of an appropriate pleading, the Tax
     Court may determine whether such a determination by the
     Secretary is correct and the proper amount of
     employment tax under such determination. Any such
     redetermination by the Tax Court shall have the force
     and effect of a decision of the Tax Court and shall be
     reviewable as such.

     Section 7436(d)(1) provides:

          SEC. 7436(d). Special Rules.--

               (1) Restrictions on Assessment and
          Collection Pending Action, Etc.--The
          principles of subsections (a), (b), (c), (d),
          and (f) of section 6213, section 6214(a),
          section 6215, section 6503(a), section 6512,
          and section 7481 shall apply to proceedings
          brought under this section in the same manner
          as if the Secretary’s determination described
          in subsection (a) were a notice of
          deficiency.

     Section 6214(a) provides:

          SEC. 6214(a). Jurisdiction as to Increase of
     Deficiency, Additional Amounts, or Additions to the
     Tax.--Except as provided by section 7463 [regarding
     disputes involving $50,000 or less], the Tax Court
     shall have jurisdiction to redetermine the correct
     amount of the deficiency even if the amount so
     redetermined is greater than the amount of the
     deficiency, notice of which has been mailed to the
     taxpayer, and to determine whether any additional
     amount, or any addition to the tax should be assessed,
     if claim therefor is asserted by the Secretary at or
     before the hearing or a rehearing.

     In Henry Randolph Consulting v. Commissioner, 112 T.C. 1

(1999), while rejecting the taxpayer’s claim that section 7436(d)

gave us jurisdiction to decide the amount of employment tax
                               - 9 -

liabilities, we stated how the principles of each section listed

in section 7436(d) could apply to a section 7436, before

amendment by CRTRA, case even if we lacked jurisdiction to decide

the amounts of tax due.   With regard to the possible application

of the principles of section 6214(a) to section 7436, before

amendment by CRTRA, we stated that the interaction of those two

sections may allow us to “decide worker classification claims

raised by the Commissioner that are not included in the notice of

determination (e.g., a claim regarding the status of additional

persons alleged to be employees) if such claims relate to the

taxpayer and taxable periods in the notice of determination.”

Id. at 6.

     It is well established that the Court has jurisdiction to

review an increased deficiency asserted by the Commissioner at or

before the hearing or rehearing.   Sec. 6214(a); Ferrill v.

Commissioner, 684 F.2d 261, 265 (3d Cir. 1982), affg. T.C. Memo.

1979-501; H.F. Campbell Co. v. Commissioner, 443 F.2d 965, 970

(6th Cir. 1971), affg. 53 T.C. 439 (1969); Commissioner v.

Finley, 265 F.2d 885, 888 (10th Cir. 1959), affg. O’Shea v.

Commissioner, T.C. Memo. 1957-15 and T.C. Memo. 1957-16;

Henningsen v. Commissioner, 243 F.2d 954, 959 (4th Cir. 1957),

affg. 26 T.C. 528 (1956).

     We conclude that, pursuant to section 7436, we have

jurisdiction over the Commissioner’s affirmative allegations
                                - 10 -

contained in the answer to the second amended petition that

additional individuals are employees of the taxpayer and that the

taxpayer is liable for additional employment taxes, additions to

tax, and penalties for the taxable periods in the notice of

determination.

     B.     Moneys Disguised as Loans

     Although petitioner and respondent agree with our conclusion

that the Court has jurisdiction over the additional individuals

and the additional amounts of employment taxes,5 petitioner

argues that we do not have jurisdiction to rule on respondent’s

affirmative allegations that petitioner compensated its

shareholders through the payment of moneys disguised as loans.6

     Congress has specifically given the Court jurisdiction to

determine the proper amount of employment tax under the

Commissioner’s determination of whether an individual is an

employee.    Sec. 7436(a).   Employment taxes are calculated by



     5
        The fact that the parties agree that the Court has
jurisdiction over these issues is not sufficient to provide us
with such jurisdiction; the Court still must determine that
Congress has granted us jurisdiction. See Ewing v. Commissioner,
118 T.C. 494, 498-507 (2002).
     6
        With respect to respondent’s affirmative allegations that
“petitioner compensated its shareholders through the payment of
monies disguised as loans and that such loans should be
recharacterized as wages,” petitioner argues that “Such
affirmative allegations are not allegations of worker
classification, are not allegations regarding treatment under
section 530(a) of the Revenue Act of 1978, and are not
allegations regarding the proper amount of employment tax owed”.
                              - 11 -

applying specified percentages to an individual’s wages.7     Secs.

3101(a); 3111(a); 3301(a); 3402(a).    Thus, in order to compute

the proper amount of employment taxes it is necessary to

determine the total amount of each individual’s wages.

Therefore, it follows that the Court’s jurisdiction includes

determining the amount of wages paid to individuals that the

Commissioner determined, or alleged in the answer, to be

employees of the taxpayer.

     Additionally, section 6214(a) further supports this

conclusion.   See sec. 7436(d).   Section 6214(a) provides that the

Tax Court has jurisdiction to redetermine the correct amount of

the deficiency even if the amount so determined is greater than

the amount of the deficiency, notice of which has been mailed to

the taxpayer, and to determine whether any additional amount

should be assessed if claim therefor is asserted by the

Commissioner at or before the hearing or a rehearing.    In

applying section 6214(a) in the deficiency context, we do not

merely review whether respondent correctly calculated the amount

of tax due.   We review the determinations (e.g., understated

income, overstated deductions, etc.) underlying the deficiency.

     We conclude that, in order to determine the proper amount of

employment taxes, pursuant to section 7436 we have jurisdiction



     7
        “Wages”, for purposes of employment taxes, are defined in
secs. 3121(a), 3306(b), and 3401(a).
                               - 12 -

to decide the total amount of wages of each individual who the

Commissioner determined, or alleged in the answer, to be an

employee of the taxpayer.

II.   Motion To Strike

      Rule 290(a) provides:

           (a) Applicability: The Rules of this Title XXVIII
      set forth the provisions which apply to actions for
      redetermination of employment status under Code Section
      7436. Except as otherwise provided in this Title, the
      other Rules of Practice and Procedure of the Court, to
      the extent pertinent, are applicable to such actions
      for redetermination.

Title XXVIII does not set forth specific rules regarding motions

to strike.   See Rules 290-295.   Accordingly, we apply Rule 52 and

the case law thereunder in determining whether to grant or deny

the motion to strike.    See Liberty Ministries Intl. v.

Commissioner, T.C. Memo. 1984-260 (applying Rule 52, via Rule

210, in the context of an action for declaratory judgment).

      Rule 52 provides that this Court, upon a timely motion of

the parties or on its own initiative, may strike from any

pleading any insufficient claim or defense or any redundant,

immaterial, impertinent, frivolous, or scandalous matter.    Rule

52 was derived from rule 12(f), Federal Rules of Civil Procedure.

Estate of Jephson v. Commissioner, 81 T.C. 999, 1000 (1983);

Allen v. Commissioner, 71 T.C. 577, 579 (1979).    Accordingly, the

principles enunciated by the Federal courts in the interpretation

and application of that provision are applicable here.     Estate of
                              - 13 -

Jephson v. Commissioner, supra at 1000-1001; Allen v.

Commissioner, supra.

     In general, motions to strike pleadings have not been

favored by the Federal courts.   Estate of Jephson v.

Commissioner, supra at 1001; Allen v. Commissioner, supra.         A

matter will not be stricken from a pleading unless it is clear

that it can have no possible bearing upon the subject matter of

the litigation.   Estate of Jephson v. Commissioner, supra; Allen

v. Commissioner, supra.

     A motion to strike should be granted only when the
     allegations have no possible relation to the
     controversy. When the court is in doubt whether under
     any contingency the matter may raise an issue, the
     motion should be denied. If the matter that is the
     subject of the motion involves disputed and substantial
     questions of law, the motion should be denied and the
     allegations should be determined on the merits. In
     addition, a motion to strike will usually not be
     granted unless there is a showing of prejudice to the
     moving party.

Estate of Jephson v. Commissioner, supra at 1001 (citations

omitted).

     Furthermore, in a case in which the taxpayer sought to

strike the portion of the answer alleging an increased deficiency

pursuant to section 6214(a) we stated:   “the * * * [taxpayer] has

no right to restrict the trial to the issues presented by him,

nor does he have a right to restrict the deficiency considered by

the Court to the amount placed in dispute by him.”      Bruno v.

Commissioner, 72 T.C. 443, 446 (1979).   We concluded that there
                              - 14 -

was no basis in law for depriving the Commissioner of the

authority given to him by section 6214(a) to raise new issues and

claim additional deficiencies.   Id.   We conclude that the same

holds true in this case brought pursuant to section 7436.

     A.    Second Exam

     Petitioner alleges that respondent’s affirmative allegations

that Mr. and Mrs. Evans should be classified as employees and

that petitioner compensated Mr. and Mrs. Evans through the

payment of commissions and other wages disguised as shareholder

loans, amounts to a second examination of petitioner which is not

permitted pursuant to section 7605(b).     Petitioner mistakes

legitimately raised new issues for a second examination.

     The statutory language and legislative history of section

7605(b) indicate that it was intended to apply under different

circumstances--that is, “where an overzealous tax examiner

harasses taxpayers by conducting multiple examinations”.     Tallal

v. Commissioner, 88 T.C. 1192, 1195 (1987).     By instituting a

proceeding in this Court, petitioner became subject to our Rules.

Id. at 1196.   Legitimately raised new issues do not constitute an

unauthorized second inspection within the purview of section

7605(b).

     B.    Additional Cost to Petitioner

     Petitioner further alleges that respondent’s affirmative

allegations will require that respondent review petitioner’s
                              - 15 -

books, petitioner produce “voluminous” records, petitioner meet

with respondent to discuss the merits of the issues, petitioner

and respondent stipulate facts, petitioner submit a trial

memorandum and posttrial brief, and petitioner spend substantial

time preparing for trial.   Petitioner claims that respondent’s

affirmative allegations will prejudice petitioner by requiring it

to expend unnecessary and duplicative attorney’s fees defending

itself from allegations that respondent previously examined and

specifically rejected.   Respondent contends that the fact that

petitioner may incur additional attorney’s fees to enable its

counsel to address the issue of Mr. and Mrs. Evans’ employment

status does not merit striking paragraphs 9 and 10 of the second

answer.

     After weighing petitioner’s claim of prejudice against

respondent’s claim that the affirmative allegations should be

tried, we conclude that the fact that petitioner will have to be

prepared at trial to counter respondent’s assertion that

petitioner compensated Mr. and Mrs. Evans through the payment of

commissions, personal expenses, and other wages disguised as

shareholder loans is not prejudicial to petitioner and is not a

sufficient basis for granting the motion to strike in this case.

Estate of Jephson v. Commissioner, supra at 1003 (alleged

prejudice of having to adduce evidence at trial to counter the

Commissioner’s assertion is insufficient to grant motion to
                               - 16 -

strike); see also Yamaha Motor Corp. v. Commissioner, T.C. Memo.

1992-110.    With regard to whether respondent may abuse the

discovery process, we believe that our Rules provide adequate

means to address any such eventuality.

     C.     Conclusion

     We are not deciding at this time that additional individuals

were employees of petitioner or that petitioner is liable for

additional employment taxes.    We conclude, however, that

respondent should have the opportunity to present these

allegations to the Court as the questions raised by the

allegations are better left for a determination on the merits.

Estate of Jephson v. Commissioner, supra at 1003.

     Paragraphs 9 and 10 of the Answer to the Second Amended

Petition are not redundant, immaterial, impertinent, frivolous,

or scandalous.    Accordingly, petitioner’s motion to strike is

denied.

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we find them to be irrelevant or without merit.

     To reflect the foregoing,

                                          An appropriate order will

                                     be issued.
