Opinion
11787-20L
10-20-2023
ELKHORN TRADING, INC, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER TO SHOW CAUSE
Maurice B. Foley, Judge.
On September 15, 2020, petitioner filed the Petition commencing this case contesting a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 (notice of determination), dated August 18, 2020, relating to 2010, 2011, 2012, and 2013. Petitioner did not attach a copy of the notice of determination to its Petition. The Court, on November 20, 2020, filed respondent's Answer in which respondent did not challenge whether the Petition was timely filed. Attached to respondent's Answer was an undated copy of the notice of determination.
On August 23, 2023, the Court filed respondent's Motion for Summary Judgment and Declaration of Jennifer Arthur in Support of Motion for Summary Judgment. Respondent's Motion asserts that the notice of determination was issued to petitioner on February 26, 2020, however, the copy of the notice of determination, attached to respondent's Declaration as Exhibit A, is also undated.
This Court may proceed in a case only if we have jurisdiction, and the question of jurisdiction may be raised at any time, whether by the parties or by this Court sua sponte. See Neely v. Commissioner, 115 T.C. 287, 290 (2000). In Boechler, P.C. v. Commissioner, the Supreme Court held that the section 6330(d)(1) 30-day filing deadline for lien/levy cases is not jurisdictional. 599 U.S. 199, 211 (2022). In accordance with Boechler, the Court may consider late-filed petitions and accept a late-filed petition by applying the doctrine of equitable tolling. Id.
After reviewing the record, the date upon which the notice of determination was issued to petitioner is unclear. Accordingly, the Petition may not have been timely filed. See I.R.C. §§ 6320(c); 6330(d)(1).
Upon due consideration, and for cause, it is
ORDERED that, on or before November 20, 2023, the parties shall show cause in writing why this case should not be dismissed for lack of jurisdiction on the ground that the Petition was not mailed to or filed with the Tax Court within the time prescribed by section 6330(d)(1) of the Internal Revenue Code. Petitioner's response should also address whether, if the Petition is determined to be untimely, there are adequate grounds for this Court to apply equitable tolling to deem the Petition timely filed and specify those grounds. Respondent's response should indicate to the Court whether he wishes to have a further opportunity to respond to any equitable tolling request or amend his Answer.