Opinion
28507-21SL
10-04-2023
CHARLES I. ONUOHA, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Diana L. Leyden Special Trial Judge
Pending in this case is respondent's Motion for Summary Judgment, filed July 3, 2023.
On August 18, 2021, petitioner filed a Petition commencing this case, contesting a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code, dated July 13, 2021 (notice of determination). On December 15, 2021, respondent filed an Answer and did challenge whether the Petition was filed timely.
On January 25, 2022, respondent filed a Motion for Continuance, 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 April 14, 2021, and explained that at the time he filed his Answer, the untimeliness of the Petition was a jurisdictional issue and he planned on filing a motion to dismiss for lack of jurisdiction after receiving the administrative record. The Court directed petitioner to file a response to respondent's Motion for Continuance, but petitioner did not file a response.
Subsequently, on April 21, 2022, the Supreme Court decided Boechler, P.C. v. Commissioner, 142 S.Ct. 1493 (2022), in which it held that the untimely filing of a petition in a collection due process case is not jurisdictional and a petition seeking review of a notice of determination may be filed past the 30-day deadline if the petitioner can show that equitable tolling should apply. Id. at 1501.
On February 16, 2023, respondent filed a Motion for Leave to File First Amended Answer and lodged a First Amended Answer with the Court, in which respondent alleged that the Petition in this case was not filed with the Court within the time prescribed by section 6330(d)(1). The Court directed petitioner to file a response to respondent's Motion for Leave to File First Amended Answer, but petitioner did not file a response. On March 13, 2023, the Court granted respondent's Motion for Leave to File First Amended Answer and filed the lodged First Amended Answer on that date.
On June 21, 2023, respondent filed the Administrative Record with the Court and on July 3, 2023, respondent filed his Motion for Summary Judgment, and two declarations in support of the motion. By Order served July 10, 2023, the Court directed petitioner to file a response to respondent's Motion for Summary Judgment by July 28, 2023, setting forth the reasons for his objections. In that Order, the Court informed petitioner that if he failed to respond to respondent's Motion for Summary Judgment the Court may grant respondent's it and enter a decision for respondent. Petitioner has not filed a response to respondent's Motion for Summary Judgment.
In his Motion for Summary Judgment respondent makes two alternative arguments: (1) that the Petition was not timely filed and the case should be dismissed, and (2) that if the Court determines that the Petition was timely filed that there is not any genuine dispute as to any material fact and that decision for respondent may be rendered. As respondent has noted in his filings, the section 6330(d)(1) 30-day filing deadline is not jurisdictional. This means the Court may consider late-filed petitions and accept a late-filed petition by applying the doctrine of equitable tolling. Boechler, P.C. v. Commissioner, 142 S.Ct. at 1496. If the Court agrees with respondent's first argument, that the Petition was not timely filed, it need not address the second argument.
By Order served September 7, 2023, respondent's Motion for Summary Judgment was set for a hearing at the Court's Oklahoma City, Oklahoma Trial Session on October 2, 2023. This case was called from the calendar of the Court's Oklahoma City, Oklahoma Trial Session on October 2, 2023. Counsel from respondent appeared and was heard. Petitioner did not appear. The trial clerk was directed to call petitioner to determine if he intended on appearing at the hearing on the motion set for 1:30pm on October 2, 2023. Petitioner informed the trial clerk that he was seeking assistance from the Legal Aid Services of Oklahoma.
Accordingly, the case was recalled and attorney Brette Gollihare from the Legal Aid Services of Oklahoma filed a limited entry of appearance on behalf of petitioner on and was heard. Petitioner's counsel stated that petitioner does not object to the dismissal of the case because the Petition was untimely filed, and petitioner does not assert that the time for filing the Petition should be equitably tolled.
The Court will dismiss the case because the Petition was not timely filed and will deny respondent's Motion for Summary Judgment as moot. Upon due consideration and for cause, it is
ORDERED that this case is dismissed because the Petition in this case was not timely filed and petitioner has not alleged that the doctrine of equitable tolling applies. It is further
ORDERED that respondent's Motion for Summary Judgment is denied as moot.