Opinion
24650-22L
08-11-2023
JULIA LEAH GREENFIELD, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
Richard T. Morrison, Judge
This case involves a petition to review an October 24, 2022 Notice of Determination Concerning Collection Actions Under Section 6320 and/or 6330 (notice of determination) by the Internal Revenue Service Independent Office of Appeals (Appeals). Pending before the Court is respondent's Motion for Judgment on the Pleadings (Doc. 11), pursuant to Rule 120(a) (Rule 120(a) motion), filed June 28, 2023. Respondent's motion states that petitioner does not object to the granting of the motion.
Unless otherwise indicated, statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, regulation references are to the Code of Federal Regulations, Title 26 (Treas. Reg.), in effect at all relevant times, and Rule references are to the Tax Court Rules of Practice and Procedure.
Respondent's Rule 120(a) motion asks the Court to dismiss this case with prejudice because as alleged in respondent's Answer (Doc. 5), admitted by the Court's May 23, 2023 Order (Doc. 8), the Petition (Doc. 1) was filed with the Court late or outside the 30-day statutory period prescribed in § 6330(d)(1) (and petitioner does not dispute that the Petition is time-barred). Petitioner having failed to reply to respondent's affirmative allegations in his answer, and the Court having deemed such allegations as admitted, there is no genuine issue of material fact as to the untimeliness of the petition.
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 on any outside matters. Nis Family Trust v. Commissioner, 115 T.C. 523, 537 (2000). The moving party 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 § 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 late 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 circumstance prevented him or her from timely filing. Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255-57 (2016); Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (en banc).
The Tax Court will follow a Court of Appeals decision which is squarely on point where appeal from our decision lies to that Court of Appeals alone. Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971). Petitioner's residence in California when she petitioned this Court makes the U.S. Court of Appeals for the Ninth Circuit the appellate venue for this case. See § 7482(b)(1)(G)(i); 28 U.S.C. § 41 (2018).
Petitioner in this case does not dispute that respondent is entitled to judgment as a matter of law and this case should be dismissed with prejudice.
To reflect the foregoing, it is
ORDERED that respondent's Motion for Judgment on the Pleadings, filed June 28, 2023, is granted, and this case is dismissed with prejudice. It is further
ORDERED and DECIDED that respondent may proceed with the collection action sustained in the notice of determination dated October 24, 2022.