Opinion
11753-20L
11-16-2022
JOETTA CARROLL, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Travis A. Greaves Judge
This section 6330(d)(1) appeal from a collection due process hearing determination is before the Court on respondent's Motion for Entry of Order that Undenied Allegations be Deemed Admitted Pursuant to Rule 37(c) (Motion for Entry of Order), filed July 28, 2022, and Motion for Judgment on the Pleadings filed September 26, 2022. The latter Motion asks the Court to dismiss the case with prejudice because, as alleged in paragraph 8(a) of respondent's Answer filed May 18, 2022, the Petition was filed late or outside the 30-day statutory period prescribed in section 6330(d)(1). Petitioner has not responded to either Motion despite this Court's Orders that she file an objection or response by September 6 and October 28, respectively.
All statutory references are to the Internal Revenue Code (Code), Title 26 U.S.C., in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
The Motion for Entry of Order asks the Court to deem admitted the undenied allegations set forth in paragraphs 8(a)-(k) of the Answer. Rule 37(c) allows the Court to grant such a motion where the petitioner does not file a reply to the Commissioner's answer and the Commissioner files the motion within 45 days after expiration of the time for filing the reply. Both criteria are satisfied, so we will grant the Motion for Entry of Order as to paragraph 8(a) of the Answer, and, based on the analysis below, deny the Motion as moot as to the remaining allegations.
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 must show that the pleadings do not raise a genuine issue of material fact and that he 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 has been pursuing his rights diligently and that some extraordinary circumstance prevented him from timely filing. Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255- 57 (2016); Knauf Insulation, Inc. v. S. Brands, Inc., 820 F.3d 904, 908 (7th Cir. 2016).Petitioner has not asserted that she satisfies this test, so we may not accept her Petition by equitable tolling.
The Tax 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). Petitioner's residence in Illinois when she petitioned this Court makes the U.S. Court of Appeals for the Seventh Circuit the appellate venue for this case. See § 7482(b)(1)(G)(i); 28 U.S.C. § 41 (2018).
To reflect the foregoing, it is
ORDERED that respondent's Motion for Entry of Order that Undenied Allegations be Deemed Admitted Pursuant to Rule 37(c), filed July 28, 2022, is granted as to paragraph 8(a) of the Answer and otherwise denied as moot. It is further
ORDERED that respondent's Motion for Judgment on the Pleadings filed September 26, 2022, is granted, and this case is dismissed with prejudice. It is further
ORDERED and DECIDED that respondent may proceed with the collection action sustained in the notice of determination.