In what circumstances will the Commissioner be dismissed or remanded to the Tax Court for failing to review a Notice of deficiency?

In Scar, we found no jurisdiction over taxpayer's petition because the notice of deficiency stated on its face that the Commissioner had not reviewed the taxpayer's actual return, and the notice referred to a tax shelter that had no connection to the petitioner. In the present case, the Commissioner's notice to the Tolls and Leavitts plainly states that their returns were unavailable for review, although it does refer to the correct tax shelter. A mere failure to review the returns is enough to result in a jurisdictionally fatal defect. Id. at 1367 n. 6; Kong v. Commissioner, 60 T.C.M. 696 (1990) (where return not reviewed, that alone is sufficient to require dismissal). Therefore, the same result must obtain here.

The Commissioner suggests that we remand to the tax court so that he can have an opportunity to prove that a proper determination was made. That request is made at this time because, unlike other reported cases, the Tolls and the Leavitts first raised the jurisdiction issue on appeal, and that deprived the Commissioner of an opportunity to demonstrate compliance. In Clapp v. Commissioner, 875 F.2d 1396, (9th Cir.1989), we indicated, in dicta, that "where the notice of deficiency reveals on its face that the Commissioner failed to make a determination ... the Commissioner [is] required to prove that he did in fact make a determination." Id. at 1402. See also Campbell v. Commissioner, 90 T.C. 110, 112-113 (1988) to the same effect.