Opinion
28239-21L
01-09-2023
DUY T. DOUNG, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND ORDER TO SHOW CAUSE
Elizabeth A. Copeland, Judge
This case is calendared for trial at the Trial Session of the Court set to commence on February 27, 2023, in Los Angeles, California.
On June 25, 2021, Respondent mailed Mr. Doung a notice of determination sustaining a notice of federal tax lien relating to Mr. Doung's liabilities for tax year 2013. Mr. Doung mailed his Petition to this Court on August 12, 2021. On January 4, 2022, Respondent filed a Motion to Dismiss for Lack of Jurisdiction, on the grounds that the Petition was filed beyond the statutorily determined due date of July 26, 2021. See I.R.C. §§ 6320(c) and 6330(d)(1). On April 26, 2022, the Court denied Respondent's Motion for the reasons set forth in Boechler, P.C. v. Commissioner, 142 S.Ct. 1493 (2022), which held that the 30-day time limit for filing petitions under sections 6320(c) and 6330(d)(1) is non-jurisdictional. In an amended answer filed with the Court on June 28, 2022, Respondent alleged, as an affirmative defense, that the Petition was filed out of time. In an order issued the same day, the Court directed Mr. Doung to reply to Respondent's affirmative defense, which Mr. Doung has not yet done.
On December 15, 2022, Respondent filed a Motion for Summary Judgment and a Declaration of Juan M. Sarinana in Support of Motion for Summary Judgment. Respondent's motion asserts that this case can be decided in Respondent's favor because there is no genuine dispute as to any material fact necessary for concluding that: (1) Mr. Doung is precluded from challenging his underlying tax liability in this proceeding, and (2) the IRS Settlement Officer assigned to Mr. Doung's collection due process (CDP) hearing did not abuse his discretion in sustaining Mr. Doung's federal tax lien relating to tax year 2013.
On December 27, 2022, Mr. Doung filed his Opposition to Motion for Summary Judgment, but he did not address whether he adequately raised his underlying liability for tax year 2013 as an issue in his CDP hearing request and/or during the CDP hearing.
On December 28, 2022, the Court issued an Order to Show Cause in which we (1) directed Mr. Doung to file a supplemental response to his Opposition to Motion for Summary Judgment, addressing whether he previously raised his underlying liability, and (2) directed the parties to show cause why the case should not be dismissed for lack of jurisdiction in light of Mr. Doung's late filing of the Petition; however in that Order, we did not acknowledge the affirmative allegations in Respondent's answer. On January 5, 2023, Respondent filed a response to the Order to Show Cause, reiterating his affirmative allegation that the Petition was filed out of time. For these reasons, the December 28, 2022, Order will be vacated and replaced with the deadlines set forth in this Order.
Upon due consideration, and for cause, it is
ORDERED that the Court's Order to Show Cause dated December 28, 2022, is hereby vacated. It is further
ORDERED that petitioner file by January 26, 2023, a supplemental response to his Opposition to Motion for Summary Judgment, addressing whether he raised his underlying liability for tax year 2013 as an issue in his CDP hearing request and/or during the CDP hearing. It is further
ORDERED that, on or before January 26, 2023, petitioner shall show cause in writing why Respondent's affirmative allegation that the Petition in this case was not mailed to or filed with the Court within the time prescribed by sections 6320(c) and 6330(d)(1) of the Internal Revenue Code should not be admitted. Petitioner's response should also address whether there are adequate grounds for this Court to apply equitable tolling to deem the Petition timely filed and, if so, specify those grounds. See Boechler, P.C. v. Commissioner, 142 S.Ct. 1493 (2022). Failure to respond to this Order shall be deemed an admission of the affirmative allegation that the Petition was not timely and an admission that equitable tolling does not apply. It is further
ORDERED that, should petitioner allege that equitable tolling applies, Respondent shall file a sur-reply addressing that issue on or before February 27, 2023.