Opinion
21409-22L
09-27-2023
JAMES ALFRED BRIDEN & LINDA BRIDEN, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Adam B. Landy Special Trial Judge
This case involves a Petition to review an August 15, 2022, Notice of Determination Concerning Collection Actions Under Section 6320 and/or 6330 (notice of determination) by the Internal Revenue Service Independent Office of Appeals.Pending before the Court is the Commissioner's Motion for Judgment on the Pleadings pursuant to Rule 120(a) (the "Rule 120(a) Motion"), filed June 20, 2023. By Order served on the parties on June 21, 2023, the Court ordered the Bridens to file a response to the Commissioner's Rule 120(a) Motion no later than July 19, 2023. The Bridens have not responded to either the Commissioner's Rule 120(a) Motion or the Court's June 21, 2023, Order. Also, the Court has been unable to contact the Bridens for a conference call to discuss the Rule 120(a) Motion.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Background
On September 22, 2022, the Bridens filed a Petition commencing this case, contesting the notice of determination dated August 15, 2022. The Bridens resided in Kansas at the time the Petition was filed. On November 18, 2022, the Commissioner filed an Answer, affirmatively alleging that the Petition was not filed within the time prescribed by section 6330(d)(1) as the 30-day period for timely filing a petition with this Court expired on September 14, 2022. On February 13, 2023, the Commissioner filed a Motion for Entry of Order that Undenied Allegations be Deemed Admitted Pursuant to Rule 37(c) (the "Rule 37(c) Motion"). By Order served on the parties on March 27, 2023, the Court ordered the Bridens to file a response to the Commissioner's Rule 37(c) Motion no later than May 8, 2023. The Bridens did not file a response as directed by the Court and thus by Order served on the parties on June 5, 2023, the Court granted the Commissioner's Rule 37(c) Motion and the allegations set forth in paragraphs 8 through 13 of the Commissioner's Answer were deemed admitted.
The Commissioner's Rule 120(a) Motion asks the Court to dismiss this case with prejudice because as alleged in the Commissioner's Answer, admitted by the Court's June 5, 2023, Order, the Petition was filed with the Court late or outside the 30-day statutory period prescribed in section 6330(d)(1) (and the Bridens do not dispute that the Petition is time-barred). As the Bridens have failed to reply to the Commissioner's affirmative allegations in his Answer, and as the Court has deemed such allegations as admitted, there is no genuine issue of material fact as to the untimeliness of the Petition.
Discussion
Rule 120(a) permits any party, after the pleadings are closed but within such time as not to delay the trial, to move for judgment on the pleadings, which is based solely on the allegations and information contained in the pleadings and not on any outside matters. Nis Family Trust v. Commissioner, 115 T.C. 523, 537 (2000). The movant must show that the pleadings do not raise a genuine issue of material fact and that he or she is entitled to a judgment as a matter of law. Id.
The section 6330(d)(1) 30-day filing deadline is not jurisdictional, which means this Court has authority to consider late-filed petitions, and the Court may accept a tardy filing by applying the doctrine of equitable tolling. Boechler, P.C. v. Commissioner, 142 S.Ct. 1493, 1501-02 (2022). A litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes that he or she has been pursuing his or her rights diligently and that some extraordinary circumstance prevented him or her from timely filing. Menominee Indian Tribe of Wis. v. United States, 577 U.S. 250, 255-57 (2016); Sigala v. Bravo, 656 F.3d 1125, 1128 (10th Cir. 2011). The Bridens have not asserted that they satisfy this test, so the Court may not accept their Petition by equitable tolling.
This Court will follow a Court of Appeals decision which is squarely on point where appeal from our decision lies to that Court of Appeals alone. Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971). Since the Bridens resided in Kansas when they petitioned this Court, the U.S. Court of Appeals for the Tenth Circuit is the appropriate appellate venue for this case. See § 7482(b)(1)(G)(i); 28 U.S.C. § 41 (2018).
Upon due consideration of the Commissioner's Motion and for cause, it is
ORDERED that the Commissioner's Motion for Judgment on the Pleadings, filed June 20, 2023, is granted, and this case is dismissed with prejudice. It is further
ORDERED and DECIDED that the Commissioner may proceed with the collection action sustained in the notice of determination dated August 15, 2022.