NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 23-3108 __________

ANASTASIOS M. SMALIS, Petitioner

v.

COMMISSIONER OF INTERNAL REVENUE ____________________________________

On Appeal from the United States Tax Court (U.S. Tax Court No. 21-5882) Tax Court Judge: Honorable Travis A. Greaves ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) November 21, 2024 Before: RESTREPO, MATEY, and CHUNG, Circuit Judges

(Opinion filed: December 18, 2024) ___________

OPINION* ___________

PER CURIAM

Anastasios Smalis appeals pro se from the Tax Court’s dismissal of his petition for

lack of jurisdiction and the denial of his motion to vacate or revise the decision. We will

affirm.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. I.

In 2021, Smalis filed a petition in the Tax Court to challenge Internal Revenue

Service (“IRS”) actions allegedly taken for his 1992 tax deficiencies. He challenged a

notice of deficiency, a notice of determination concerning a collection action, a notice of

final determination for disallowance of interest abatement, and a notice of determination

concerning relief from joint and several liability. He claimed that the IRS improperly

mailed notices to a prior address even though he submitted a change of address form in

1995, that he was deprived of adequate notice in violation of due process, and that the

IRS abused its discretion by refiling a lien.

Smalis did not attach any of the alleged notices to his petition. Instead, he

attached a balance reminder from the IRS. He also provided a Collection Appeal Request

form he completed in 2016. And he submitted records showing that in May 2017, the

IRS issued notice of a federal tax lien for the tax period ending in 1992, assessed in 1994.

Additionally, he attached his 2020 Social Security Benefit statement showing a

garnishment or levy on his benefits.

The Commissioner of Internal Revenue moved to dismiss for lack of jurisdiction.

The Commissioner stated that the IRS had not sent Smalis any of the alleged notices he

purported to challenge in his petition, and that Smalis had not produced any notice or

determination sufficient to confer the Tax Court with jurisdiction. In response, Smalis

argued that the IRS violated due process by seizing his assets without providing him

adequate notice and an opportunity to dispute his liability.

2 The Tax Court concluded it lacked jurisdiction to review the petition and

dismissed the case. Smalis moved for reconsideration, which the Tax Court construed as

a motion to vacate or revise the decision under Tax Court Rule 162. Smalis asserted he

was “never served with a copy of deficiency or a determination relating to his case,” and

he was entitled to a hearing to dispute the IRS’s collection. The Tax Court denied the

motion, and Smalis appealed.

II.

We have jurisdiction under

(a)(1). We review the Tax Court’s

dismissal for lack of jurisdiction de novo, and we review its factual findings for clear

error. Culp v. Comm’r,

, 200 (3d Cir. 2023). We review the Tax Court’s

denial of a motion to vacate for abuse of discretion. Drobny v. Comm’r,

(7th Cir. 1997).

The party asserting Tax Court jurisdiction has the burden to establish it. See

Shands v. Comm’r,

, 7 (D.C. Cir. 2024). The Tax Court’s jurisdiction is

limited to what is expressly authorized by Congress. See

; Sunoco Inc.

v. Comm’r,

(3d Cir. 2011). For example, Congress has authorized the

Tax Court to review deficiency determinations. See generally

But

the Tax Court acquires jurisdiction to review a deficiency determination only after the

IRS issues a notice of deficiency. Dudley v. Comm’r,

(3d Cir. 1958);

1 A tax “deficiency” occurs when the tax amount imposed by the IRS exceeds the tax amount reported by the taxpayer on his return. See Lazore v. Comm’r,

(3d Cir. 1993);

. 3 see also Delman v. Comm’r,

(3d Cir. 1967) (stating that the notice of

deficiency is the taxpayer’s “ticket” to Tax Court); Est. of Davenport v. Comm’r,

, 1182 n.2 (10th Cir. 1999) (“A valid deficiency notice is a prerequisite to Tax

Court jurisdiction.”); Tax Court Rule 13(a). Similarly, the Tax Court may review the

IRS’s collection activities, see

(d), but only after the IRS issues a notice

of determination, see Adolphson v. Comm’r,

(7th Cir. 2016).

Additionally, the Tax Court lacks jurisdiction to review a decision not to abate interest

until the IRS has issued a determination not to abate interest. See

(h);

Williams v. Comm’r,

(2008); cf. Wright v. Comm’r,

, 219-

20 (2d Cir. 2009) (holding that the Tax Court had jurisdiction to determine whether the

taxpayer was entitled to an abatement of interest because the IRS had issued a notice of

determination that did not grant abatement). And the Tax Court may review a

determination not to grant relief from joint and several liability under

only “if an individual files a petition in the court no later than ninety days after the IRS

mails its notice of final determination.” Rubel v. Comm’r,

(3d Cir.

2017).

The parties do not contest that Smalis did not receive the alleged notices, and the

IRS determined that it never sent the challenged notices, nor any document that could

qualify as one. Without providing such a notice, Smalis did not meet his burden to

establish that the Tax Court had jurisdiction over his petition. See Shands, 111 F.4th at 7.

Smalis asserts that because he never received a notice, he had no opportunity for a

collection due process hearing, and thus he was deprived of due process. Even if we 4 assume Smalis is correct, without a notice of deficiency or determination, the Tax Court

had no jurisdiction over his petition. This remains true even in circumstances where the

Commissioner is at fault for failing to carry out the statutory duty to issue notice. See

Adolphson,

; see also Musso v. Comm’r,

(5th Cir.

1976) (explaining that the Tax Court has no equity powers).

Thus, the Tax Court did not err by dismissing Smalis’s petition for lack of

jurisdiction. And because Smalis re-argued the same points in his post-decision motion,

the court did not abuse its discretion by denying his motion to vacate or revise the

decision. Accordingly, we will affirm the Tax Court’s judgment.

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