Opinion
3638-23
09-05-2023
DANIEL SCOTT POGGENSEE, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
On February 22, 2023, the Petition in this case was filed by the Court. Affixed to the envelope containing the Petition was a "Stamps Endicia" postage label bearing the date January 30, 2023. Attached to the Petition was a Notice of Deficiency dated November 3, 2022. On the notice, the last date to file a petition in this Court is printed as February 1, 2023, which is 90 days from the date of the notice.
Petitioner paid the Court's filing fee. On May 3, 2023, respondent filed an Answer. On August 28, 2023, petitioner filed a Motion to Withdraw. Therein, petitioner stated that he was providing his "official notice to withdraw [his] petition" because he "no longer wish[ed] to have this case tried with" this Court.
In a deficiency case where the Court has jurisdiction, we are generally required to enter a decision specifying the amount of the deficiency, if any, for the taxable year at issue and may not grant a motion to dismiss like the one filed by petitioner. See I.R.C. § 7459(d); Estate of Ming v. Commissioner, 62 T.C. 519 (1974). However, in this case, it is unclear whether the Court has jurisdiction because the Petition was received three weeks past its due date. See Rochelle v. Commissioner, 293 F.3d 740 (5th Cir. 2002) (per curiam), aff'g 116 T.C. 356 (2001); Hallmark Rsch. Collective v. Commissioner, 159 T.C. 126 (2022); Treas. Reg. 301.7502-1(c)(1)(iii)(B).
It is therefore
ORDERED that the parties shall, by September 25, 2023, file a response to this Order addressing therein whether the Petition giving rise to this case was timely filed.