Cary v. Comm'r of Internal Revenue

Full title: STEPHEN CARY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Court: United States Tax Court

Date published: Jul 25, 2022

No. 9745-20 (U.S.T.C. Jul. 25, 2022)

Opinion

9745-20

07-25-2022

STEPHEN CARY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

David Gustafson, Judge

ORDER

David Gustafson, Judge

The Commissioner has filed a motion (Doc. 34) for entry of decision. If we grant that motion, it will conclude this case. We will order petitioner Stephen Cary to file a response to the motion.

By our order of June 27, 2022 (Doc. 33), we granted summary judgment in favor of the Commissioner as to the tax of $11,752 that is at issue in this case, and we left unresolved the penalty of $1,855 that is at issue. We ordered the Commissioner to make another filing.

The Commissioner has done so. His motion (Doc. 34) concedes the penalty in favor of Mr. Cary, and as to the tax the Commissioner asks us to enter decision in favor of the Commissioner. Subject to correction by Mr. Cary, we think that granting the Commissioner's motion and entering decision is the correct procedural step to effectuate our order as to the tax and the Commissioner's concession as to the penalty.

The Commissioner acknowledges that Mr. Cary has already paid the deficiency that is at issue here. See Doc. 17 at 2 ("Respondent's records reflect a withholding credit in the amount of $2,470.00 that was paid on April 15, 2018, and an advance payment in the amount of $13,121.33 that was paid on August 5, 2021, for the tax year 2017. . . . After the tax and penalty has been assessed, petitioner will owe $0.00"); Doc. 20 at 3 ("THE COURT: Ms. Moua, is it correct that Mr. Cary has paid the liability for 2017? MS. MOUA: Yes, Your Honor. Mr. Cary has paid the deficiency, the tax liability, and the penalty"). Likewise, the Form 3623, "Statement of Account", that attached to the Commissioner's motion for entry of decision shows that the entire liability has been satisfied and, because the Commissioner is conceding the penalty, that Mr. Cary will be entitled to an overpayment.

It is

ORDERED that, no later than August 19, 2022, Mr. Cary shall file a response to the motion for entry of decision, stating whether he objects to the motion and, if so, on what grounds. (If Mr. Cary files no response, then we expect to grant the motion.) It is further

ORDERED that, no later than September 9, 2022, the Commissioner shall file a reply to Mr. Cary's response (or, if he has filed no response, then the Commissioner shall file a status report so stating).