Opinion
35027-21
02-09-2023
JEFFREY A. DAVIS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Elizabeth A. Copeland Judge
This case is calendared for trial at the Trial Session of the Court scheduled to commence on February 13, 2023, in Philadelphia, Pennsylvania.
On January 19, 2023, respondent filed with the Court a Motion for Entry of Decision. Respondent is requesting that pursuant to the provisions of Tax Court Rule 50, the Court enter a decision in this case pursuant to the agreement of the parties which reflects a deficiency in income tax due from petitioner for taxable year 2019 in the amount of $55.00, with no additions to tax under the provisions of I.R.C. § 6651(a)(1) for taxable year 2019, and with no penalty under the provisions of I.R.C. § 6662(a) for taxable year 2019.
Unless otherwise indicated, all statutory references are to the Internal Revenue 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.
On February 6, 2023, petitioner filed with the Court a Reply to Respondent's Motion for Entry of Decision. Petitioner does not object to the respondent's motion; however, he is requesting that, in addition to the aforementioned decision, the Court determine that he is entitled to a recovery of the $60.00 Tax Court filing fee as an administrative and/or litigation costs award pursuant to I.R.C. § 7430.
On February 7, 2023, the Court held a telephonic conference call with the parties. The Court determined that the parties' agreed decision would be entered; however, the Court notes that the request for litigation costs was prematurely requested by petitioner, as it should not have been filed until the Court determined petitioner was a substantially prevailing party by entering its decision in the case. Thus, the Court will deny without prejudice petitioner's request, advising petitioner that he may file a motion for such award within 30 days of the entry of this decision. See Rule 231(a).
Further, the Court advises petitioner that should he desire an award of the $60.00 filing fee he should file a claim with the Court for the award of that fee. Petitioner should consult Rule 231(b) for the content of such a motion, which rule requires as follows:
(b) Content of Motion: A motion for an award of reasonable litigation or administrative costs shall be in writing and shall contain the following:
(1) A statement that the moving party is a party to a Court proceeding that was commenced after February 28, 1983;
(3) a statement sufficient to demonstrate that the moving party has substantially prevailed with respect to either the amount in controversy or the most significant issue or set of issues presented . . . in the Court proceedings. . . .;
(4) a statement that the moving party meets the net worth requirements, if applicable, of section 2412(d)(2)(B) of title 28, United States Code (as in effect on October 22, 2986), which statement shall be supported by an affidavit or a declaration executed by the moving party and not by counsel for the moving party [e.g. the moving party's net worth is less than $];
(5) a statement that the moving party has exhausted the administrative remedies available to such party within the Internal Revenue Service;
(6) a statement that the moving party has not unreasonably protracted the Court proceeding . . . .;
(7) a statement of the specific litigation . . . costs for which the moving party claims an award, supported by an affidavit or a declaration in the form prescribed in paragraph (d) of this Rule;
(8) if the moving party requests a hearing on the motion, a statement of the reasons why the motion cannot be disposed of by the Court without a hearing (see Rule 232(a)(2) regarding the circumstances in which the Court will direct a hearing); and
(9) an appropriate prayer for relief. Upon due consideration, and for cause, it is
ORDERED that respondent's Motion for Entry of Decision, filed with the Court on January 19, 2023, is hereby granted in that it is
ORDERED AND DECIDED that there is a deficiency in income tax due from petitioner for taxable year 2019 in the amount of $55.00;
That there is no addition to tax due from petitioner for taxable year 2019, under the provisions of I.R.C. § 6651(a)(1); and
That there is no penalty due from petitioner for taxable year 2019, under the provisions of I.R.C. § 6662(a).