Opinion
17057-11
01-25-2024
JAMES P. CONNELLY & CHRISTINE K. CONNELLY, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Joseph Robert Goeke, Judge.
On January 24, 2024, the Parties filed a Joint Motion for Indicative Ruling Pursuant to Tax Court Rule l(b) and Fed.R.Civ.P. 62.l(a) as to Whether the Court Would Grant the Parties' Motion to Correct Clerical Error.
On May 27. 2022, respondent filed a motion for entry of decision in this case. On August 19, 2022, the court granted respondent's motion and entered a decision reflecting that there were deficiencies, penalties, and additions to the tax due from petitioners for tax years 2006 through 2008. On November 17, 2022, Petitioners filed a Notice of Appeal, appealing the decision of this court to the United States Court of Appeals for the Seventh Circuit. One of the assignments of error in the appeal was that there were errors in respondent's computation of the tax and deficiencies for 2006 through 2008. The appeal remains pending.
The parties state that they have conferred with one another and have determined that there were computational errors in the deficiencies, penalties, and additions to tax in respondent's computations and motion for entry of decision which carried over into the decision entered by the court in this case. The parties seek an indicative ruling as to whether the Tax Court, upon remand of the case, would grant a motion to vacate the August 19, 2022 decision that contains the computational errors to allow the parties to substitute a corrected decision to be entered, or, in the alternative, would correct the decision by order. The parties state that the entry of a corrected decision would resolve all issues remaining on this appeal. Fed.R.Civ.P. 60(a) provides that "after an appeal has been docketed in the appellate court and while it is pending, such a mistake may be corrected only with the appellate court's leave." Consequently, this Court is presently without authority to correct the decision.
This court's Rules of Practice and Procedure make no specific provision for this circumstance, but Rule 1(b) nonetheless provides that in the absence of a controlling rule, a judge may prescribe a procedure, "giving particular weight to the Federal Rules of Civil Procedure to the extent that they are suitably adaptable to govern the matter at hand."
Fed. R. Civ. P. 62.l(a) provides
If a timely motion is made for relief that the court lacks authority to grant because of an appeal that has been docketed and is pending, the court may * * * (3) state * * * that it would grant the motion if the court of appeals remands for that purpose * * * --and that provision is adaptable to this circumstance. The related rule 12.1 (b) of the Federal Rules of Appellate Procedures similarly addresses the procedure as a matter of appellate practice.
It is therefore
ORDERED that the parties' Joint Motion for Indicative Ruling Pursuant to Tax Court Rule l(b) and Fed.R.Civ.P. 62.l(a) as to Whether the Court Would Grant the Parties' Motion to Correct Clerical Error is granted. Accordingly, if the Court of Appeals remands this case in accordance with Fed.R.Civ.P. 62.l(a)(3) and Fed. R. App. P. 12. l (b), this Court would grant the parties' motion to vacate the August 19, 2022 decision that contains the computational errors to allow the parties to substitute a corrected decision to be entered.