Opinion
21282-22L
04-16-2024
LOUISE CLARKE & WARDIE CLARKE, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Tamara W. Ashford Judge
This section 6330(d)(1) appeal from a collection due process (CDP) determination is currently calendared for trial at the Session of the Court commencing on April 22, 2024, in Las Vegas, Nevada, and pending before the Court is respondent's Motion for Judgment on the Pleadings, filed March 19, 2024, pursuant to Rule 120(a) (Rule 120(a) Motion). By Order served on the parties on March 20, 2024, the Court ordered petitioners to file a response to respondent's Rule 120(a) Motion no later than April 10, 2024. As of the date of service of this Order, petitioners have not responded to either respondent's Rule 120(a) Motion or the Court's March 20, 2024, Order.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C, in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Background
The Petition commencing this CDP case was received and filed by the Court on September 20, 2022, with the envelope in which the Petition was mailed bearing a U.S. Postal Service postmark of September 19, 2022. On October 18, 2022, because the Petition did not comply with the Tax Court's Rules as to form or content (the mailing solely consisted of a copy of the notice of determination issued to petitioners on August 17, 2022), petitioners at the Court's direction perfected their Petition by filing a First Amended Petition.
On December 1, 2022, respondent filed an Answer to First Amended Petition, affirmatively alleging that petitioners' Petition was filed late or outside the 30-day statutory period prescribed by section 6330(d)(1) for an appeal to this Court; according to respondent, the 30-day statutory period expired on September 16, 2022, which date was not a Saturday, Sunday, or legal holiday in the District of Columbia.
Respondent also affirmatively alleged that under the doctrine of res judicata petitioners were precluded from relitigating the same cause of action or claim (i.e., their underlying liabilities) for three of the four taxable years at issue in this case.
On February 23, 2023, respondent filed a Motion for Entry of Order that Undenied Allegations be Deemed Admitted Pursuant to Rule 37(c) (Rule 37(c) Motion). By Order served on the parties on March 7, 2023, the Court ordered petitioners to file a reply to respondent's affirmative allegations set forth in paragraphs 8(a) through 9(h) of the Answer to First Amended Petition no later than March 28, 2023. Petitioners did not file a reply as directed by the Court and thus by Order served on the parties on June 21, 2023, the Court granted respondent's Rule 37(c) Motion and respondent's affirmative allegations set forth in paragraphs 8(a) through 9(h) of the Answer to First Amended Petition were deemed admitted.
In respondent's Rule 120(a) Motion, respondent asks this Court to dismiss this case with prejudice because, as alleged in paragraphs 8(a) through 9(h) of respondent's Answer to First Amended Petition, admitted by the Court's June 21, 2023, Order, the Petition was filed with the Court late or outside the 30-day statutory period prescribed by section 6330(d)(1) (and petitioners do not dispute that the Petition is time-barred).
Discussion
Rule 120(a) permits any party, after the pleadings are closed but within such time as not to delay the trial, to move for judgment on the pleadings, which is based solely on the allegations and information contained in the pleadings and not any outside matters. Nis Family Trust 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 or she 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 this Court has authority to consider late-filed petitions, and the 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 circumstances prevented him or her from timely filing. Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255-77 (2016). Petitioners have not asserted that they satisfy this test, so the Court may not accept their Petition, as amended, by equitable tolling.
To reflect the foregoing, it is hereby
ORDERED that respondent's Motion for Judgment on the Pleadings, filed March 19, 2024, is granted in that this case is dismissed with prejudice because the Petition was untimely. It is further
ORDERED and DECIDED that respondent may proceed with the collection action sustained in the notice of determination dated August 17, 2022.