                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                       No. 13-3555
                                      _____________

                DOMINICK GALLUZZO and ANGELA GALLUZZO

                                           v.

                   COMMISSIONER OF INTERNAL REVENUE,
                                        Appellant
                             ______________

               APPEAL FROM THE UNITED STATES TAX COURT
                             (Docket No. 12-12914)
                       Judge: Honorable Juan F. Vasquez
                                ____________

                                Argued: April 8, 2014
                                   ____________

            Before: HARDIMAN, SLOVITER and BARRY, Circuit Judges

                            (Opinion Filed: April 24, 2014)
                                   ____________

John Schumann, Esq. (Argued)
Joan I. Oppenheimer, Esq.
Gilbert S. Rothenberg, Esq.
Rachel I. Wollitzer, Esq.
United States Department of Justice
Tax Division
950 Pennsylvania Avenue, N.W.
Post Office Box 502
Washington, DC 20044
William J. Wilkins, Esq.
Internal Revenue Service
1111Constitution Avenue, N.W.
Washington, DC 20224

Counsel for Appellant

Kenneth R. Cohen, Esq. (Argued)
Davidson, Sochor, Ragsdale & Cohen, L.L.C.
619 River Drive, Suite 200
Elmwood Park, NJ 07407

Counsel for Appellees

                                       ____________

                                         OPINION
                                       ____________

BARRY, Circuit Judge

       Taxpayers Dominick and Angela Galluzzo filed a petition in the Tax Court

seeking a redetermination of income tax deficiencies assessed by the Commissioner of

Internal Revenue (“Commissioner”). The Tax Court dismissed the action for lack of

subject matter jurisdiction, finding that the Commissioner had failed to mail a notice of

deficiency as required by the Internal Revenue Code (“Code”). The Commissioner

appeals only the dismissal of Mr. Galluzzo’s redetermination claim. We agree with the

Tax Court that it lacked jurisdiction, and will affirm its order of dismissal.

                                  I.     BACKGROUND

       Because we write primarily for the parties, we provide only a brief summary of

those facts necessary to our resolution of this appeal.

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       After conducting an examination of federal income tax returns filed by Galluzzo

and his wife in 1999, 2000, and 2001, the Internal Revenue Service (“IRS”) determined

that the couple was liable for a tax deficiency for each of the three years. According to a

U.S. Postal Service Form 3877, the IRS sent separate notices of deficiency by certified

mail to the Galluzzos at their home in Saddle Brook, New Jersey on June 2, 2005. On

November 7, 2005, having yet to receive payment, the IRS made its assessment of

liability for each tax year. It subsequently filed notices of a federal tax lien on the

Galluzzos’ property with the Clerks of Ocean County and Bergen County, New Jersey.

       On June 15, 2006, Mr. Galluzzo filed for Chapter 11 bankruptcy.1 The IRS filed

proofs of claim, listing a secured claim for unpaid taxes, penalties, and interest for the

1999-2001 tax years in the amount of $1,251,456.99. Galluzzo never filed an objection

to the proofs of claim and included the IRS’s secured claim in his plan of reorganization,

which was approved by the Bankruptcy Court in a March 2008 confirmation order. The

confirmation order stated that the IRS’s secured claim would be treated in the manner set

forth in the Court’s earlier “Stipulation and Order Determining Liens and Priority on

Ocean County Property” (“consent order”) resolving an adversary proceeding between

Galluzzo and several of his creditors, including the IRS. Among other things, the consent

order had stated that the IRS’s secured claim would be reduced by $200,000 and that the

IRS would “retain its lien for any remaining balance” on the Galluzzos’ New Jersey


1
  For her part, Angela Galluzzo filed two Chapter 13 bankruptcy proceedings on April
25, 2005 and July 26, 2005, respectively. Ms. Galluzzo voluntarily dismissed each
proceeding.
                                           3
properties. (J.A. 105.) The March 2008 confirmation order added a directive to Galluzzo

to pay the federal tax lien within six years of the date of assessment, i.e., by November

2011.

        Approximately seven months before that deadline, the Galluzzos filed a complaint

in the U.S. District Court for the District of New Jersey contesting their tax liabilities

based on the IRS’s failure to mail notices of deficiency. In a report and recommendation

adopted by the District Court, Magistrate Judge Joseph A. Dickson concluded that the

Galluzzos could not pursue relief in the District Court until they had paid the challenged

tax assessments and filed a claim for a refund or credit. Galluzzo v. United States, No.

11-cv-1607, 2012 WL 2005434, at *2-4 (D.N.J. May 15, 2012). He noted that, as an

alternative, the Galluzzos could file a petition in the Tax Court, which had authority to

determine, as part of its own jurisdictional analysis, whether valid notices were issued. A

Tax Court ruling that notices were never sent to the Galluzzos, he opined, would

“effectively void[] the assessment[s]” against them. Id. at *4. Accordingly, on May 21,

2012, the Galluzzos initiated an action in the Tax Court seeking redetermination of their

deficiency assessments. In the petition, the Galluzzos claimed that the Commissioner had

failed to furnish and they had not received any notices of deficiency, and, as a

consequence, the assessment of liabilities was barred.

        The Tax Court agreed that the Commissioner had failed to satisfy his burden of

proving he had prepared and sent notices of deficiency to the Galluzzos by certified or

registered mail in accordance with I.R.C. § 6212(a)-(b)(1). The Court specifically found

                                              4
that a Form 3877, standing alone, was insufficient to prove that a notice of deficiency had

been created and mailed. Highlighting the significance of its determination, the Tax

Court noted that, “under normal circumstances,” the IRS cannot assess a tax deficiency

until a notice of deficiency has been validly issued and mailed. (J.A. 6); see also I.R.C. §

6213(a). In the Tax Court’s view, proof of proper mailing was also a prerequisite for its

own assertion of subject matter jurisdiction. It, therefore, dismissed the action for lack of

jurisdiction. The Commissioner timely appealed.

                                     II.    ANALYSIS2

       The threshold—and, ultimately, dispositive—question on appeal is whether the

Tax Court had jurisdiction over the Galluzzos’ redetermination action. We find, as did

the Tax Court, that it did not.

       The parties agree, as do we, that, in order for the Tax Court to exercise subject

matter jurisdiction over a redetermination action, the Commissioner must have mailed a

notice of deficiency in accordance with I.R.C. § 6212. Section 6214(a) of the Code

provides that “the Tax Court shall have jurisdiction to redetermine the correct amount of

[a] deficiency . . . notice of which has been mailed to the taxpayer.” (emphasis added).

Indeed, both our Court and the Tax Court have described the statutory notice

requirements in jurisdictional terms. We have stated that “the Tax Court has limited

jurisdiction, and is authorized only to hear petitions for redetermination after . . .


2
  We have authority under I.R.C. § 7482(a) to review the Tax Court’s order of dismissal.
We review the Tax Court’s legal conclusions de novo and its factual findings for clear
error. Anderson v. Comm’r, 698 F.3d 160, 164 (3d Cir. 2012).
                                           5
issu[ance of] a deficiency notice.” Chase Manhattan Bank, N.A. v. Gov’t of the V.I., 300

F.3d 320, 324 (3d Cir. 2002) (discussing Dudley v. Comm’r, 258 F.2d 182, 183-84 (3d

Cir. 1958)). In Dudley, “the Tax Court had no jurisdiction” because the notice at issue

did not comply in all respects with the Code. Id. The Tax Court has similarly dismissed

redetermination suits in the taxpayer’s favor for “lack of jurisdiction” on the basis that

notice was not properly mailed and no assessment could be enforced. See, e.g., Monge v.

Comm’r, 93 T.C. 22, 27-30 (1989); Shelton v. Comm’r, 63 T.C. 193, 197-98 (1974); see

also Offiler v. Comm’r, 114 T.C. 492, 498 (2000) (“[T]he absence of a valid notice of

deficiency is a basis for dismissal for lack of jurisdiction.”).

       On appeal, the Commissioner does not take issue with the fact, and fact it be, that

it was his burden to establish that deficiency notices had been prepared and mailed to the

Galluzzos. See Pietanza v. Comm’r, 92 T.C. 729, 736-37 (1989). Nor does he challenge

the Tax Court’s factual finding that he failed to satisfy that burden. He instead contends

that the Tax Court should not have made its own jurisdictional finding as to whether

notices of deficiency were issued and mailed (and, by extension, whether the IRS’s

assessment was valid), because the Bankruptcy Court’s consent and confirmation orders,

which establish that Galluzzo owes and must pay a debt to the IRS, are res judicata with

respect to the issues of notice and his tax liability, more generally. To allow the Tax

Court to consider the proof of notice question anew, argues the Commissioner, would

undermine the finality and validity of the Bankruptcy Court’s rulings.

       That argument is not without appeal. Galluzzo was able to, but did not, dispute

                                               6
the validity of the IRS’s secured claim before the Bankruptcy Court. His assertion in the

Tax Court that he never received a mailed notice of deficiency does appear to be a

belated attempt to dodge his tax debt based on what the Commissioner essentially

describes as a technicality.

       Nonetheless, we find the Commissioner’s position unpersuasive. Jurisdiction is

not a mere technicality. It must exist for a federal court to adjudicate a case. Arbaugh v.

Y & H Corp., 546 U.S. 500, 514 (2006). Moreover, the Commissioner offers no legal

authority for the proposition that the Tax Court is required to give preclusive effect to

rulings in a prior proceeding when, in a subsequent proceeding, it must determine facts

relevant to its own subject matter jurisdiction. On the contrary, well-established case law

points in the other direction. “When at any time and in any manner it is represented to

the [Tax] Court that it does not have jurisdiction, the [Tax] Court should examine the

grounds of jurisdiction before proceeding further . . . .” Shelton, 63 T.C. at 198. The Tax

Court’s “jurisdiction cannot be enlarged by agreement of the parties, or waiver, or failure

to object.” Romann v. Comm’r, 111 T.C. 273, 281 (1998). Thus, a party’s invocation of

res judicata, even if well-founded, cannot prevent the Tax Court from fully assessing its

own subject matter jurisdiction. Galluzzo’s failure to advance an invalid notice argument

in the Bankruptcy Court could not preclude the Tax Court from reviewing whether any

such notice was properly issued and mailed, as that is a question vital to its own

jurisdiction.

       We are well aware of the unusual dimensions of the Tax Court’s jurisdictional

                                             7
holding under review. Galluzzo has used the Tax Court’s lack of jurisdiction to obtain, at

least in the Tax Court, a favorable judgment, essentially on the merits. Decisions of our

Court and of the Tax Court establish, however, that the issuance of a valid deficiency

notice is a jurisdictional necessity, and the Commissioner offers no contrary authority;

indeed, he endorses that very rule. Accordingly, the Tax Court did not err by taking steps

to assure itself that this threshold jurisdictional requirement had been met and by

dismissing the Galluzzos’ action once it became clear that the Commissioner had not met

his burden to show that mailing of the notice had taken place.

                                 III.    CONCLUSION

       For the foregoing reasons, we will affirm the Tax Court’s order of dismissal.




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