Opinion
15422-22
03-11-2024
RAM ASONAJ & FAKETE ASONAJ, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Albert G. Lauber, Judge
On August 15, 2023, the Court granted respondent's Motion to Dismiss for Lack of Prosecution and entered a Decision upholding the IRS's determinations set forth in the notice of deficiency. On March 7, 2024, petitioners filed, pursuant to Rule 162, a Motion for Leave to File Motion to Vacate the Decision entered by the Court. Petitioners seek to have the Decision vacated on the ground that their original representative, who was not authorized to practice in this Court, did not adequately represent them. We will deny the Motion for Leave.
Rule references are to the Tax Court Rules of Practice and Procedure.
Rule 162 provides that a motion to vacate or revise decision "shall be filed within 30 days after the decision has been entered." A motion filed outside of that 30-day period is untimely and will not be considered "unless the Court shall otherwise permit." The Decision in this case was entered on August 15, 2023, and petitioners represent that they received a copy on August 30, 2023. Despite this notice, petitioners did not file their Motion by September 14, 2023, the 30th day following entry of the Decision. Petitioners eventually retained an attorney, but the attorney did not enter an appearance until November 2, 2023, ten weeks after the Decision was entered. The attorney prepared the Motion, but the Motion was not filed until March 7, 2024, 27 weeks after the Decision was entered. Petitioners have offered no excuse for this delay.
Even if we were to consider the Motion on the merits, we would deny it. The disposition of a motion to vacate or revise decision lies within the sound discretion of the Court. Vaughn v. Commissioner, 87 T.C. 164, 166-67 (1986). Although Rule 162 does not provide a standard for evaluating such a motion, Rule 1(b) provides that we may give weight to the Federal Rules of Civil Procedure (FRCP) "to the extent that they are suitably adaptable to govern the matter at hand."
We have often referred to FRCP 60 and cases applying it to assist us in resolving issues raised by motions filed under Rule 162. Brannon's of Shawnee, Inc. v. Commissioner, 69 T.C. 999, 1001 (1978). Motions to vacate or revise are generally not granted absent a showing of unusual circumstances or substantial error, e.g., mutual mistake, surprise, excusable neglect, newly discovered evidence, or fraud, none of which is present here. Ibid. Relief from a final judgment under FRCP 60(b)(6) requires a showing of extraordinary circumstances. Coltec Indus., Inc. v. Hobgood, 280 F.3d 262, 273 (3d Cir. 2002).
Petitioners have not made the necessary showing of substantial error, excusable neglect, or extraordinary circumstances. They were warned multiple times in advance of trial that their failure to comply with our Rules or any order of the Court could result in a dismissal of their case and entry of decision against them. Notwithstanding these warnings, petitioners failed to appear for trial and failed to respond to our Order directing a response to the Motion to Dismiss for Lack of Prosecution. In these circumstances we are unable to offer additional accommodation.
Upon due consideration, it is
ORDERED that the Motion for Leave to File Motion to Vacate, filed March 7, 2024, is denied.