Opinion
20177-22SL
02-06-2024
ANDREW L. BOLAM & KELLY BOLAM, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Diana L. Leyden Special Trial Judge.
Petitioners filed a Petition commencing this case on September 6, 2022, contesting a notice of determination dated May 3, 2022. On September 30, 2022, respondent filed an Answer, and alleged 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 June 2, 2022. On December 1, 2022, respondent filed a Motion for Entry of Order that Undenied Allegations be Deemed Admitted Pursuant to Rule 37(c) (motion for entry of order). On December 11, 2023, respondent filed a Motion for Judgment on the Pleadings (motion for judgment on the pleadings).
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, all regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Petitioners did not file a reply to respondent's Answer by May 9, 2023, as extended in the Court's April 18, 2023, order. Nor did petitioners file an objection to respondent's motion for judgment on the pleading by January 16, 2024, as directed in the Court's December 14, 2023, order. By order served August 7, 2023, the Court granted respondent's motion for entry of order and the allegations set forth in paragraphs a through g of respondent's Answer were deemed admitted.
This section 6330(d)(1) appeal from a collection due process hearing determination is presently before the Court on respondent's motion for judgment on the pleadings. Respondent asks the Court to dismiss the case with prejudice because, as alleged in paragraphs a through g of respondent's Answer, the Petition was filed with the Court late or outside the 30-day statutory period prescribed in section 6330(d)(1).
Rule 120 permits any party 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 v. Commissioner, 115 T.C. 523, 537 (2000). The movant 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 the Tax Court has authority to consider late-filed petitions, and the Tax Court may accept a tardy filing by applying the doctrine of equitable tolling. Boechler, P.C. v. Commissioner, 142 S.Ct. 1493, 1496 (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 Wisc. v. United States, 577 U.S. 250, 255-57 (2016). Petitioners have not asserted that it satisfies this test, so the Court may not accept its Petition by equitable tolling.
To reflect the foregoing, it is
ORDERED that respondent's Motion for Judgment on the Pleadings filed December 11, 2023, is granted in that this case is dismissed with prejudice, because the Petition was untimely.