Opinion
37884-21
04-12-2023
BRYAN GRIGGS, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge.
On November 23, 2022, the Court entered an Order of Dismissal for Lack of Jurisdiction in this case on the ground that petitioner had failed to carry his burden to establish that he had been issued any notice or determination sufficient to confer jurisdiction on this Court. That decision is now final. See I.R.C. §§ 7481(a)(1), 7483; Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir. 1988), aff'g 86 T.C. 1319 (1986).
All statutory references are to the Internal Revenue Code in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
On March 6, 2023, the Court received and filed petitioner's (1) Motion for Reconsideration of Order and (2) Declaration of Bryan Griggs in Support of Motion for Reconsideration of Order. In the Motion, petitioner requests that this case "be reinstated" because until now medical challenges related to COVID-19 have rendered him unable to respond to respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 25, 2022. Petitioner has attached to the Motion an apparent six-page IRS Form 4549-A dated October 29, 2015, which he baldly asserts provides this Court with jurisdiction over his case.
As noted above, a decision was entered in this case on November 23, 2022. Petitioner's Motion is thus in substance more akin to a motion to vacate, insofar as it seeks to vacate that decision. Rule 162 provides that, unless otherwise permitted by the Court, any motion to vacate or revise a decision must be filed within 30 days after the decision has been entered. Petitioner did not file his Motion within 30 days after the decision in this case was entered, and the Motion is therefore untimely.
Rule 161 similarly provides that, unless otherwise permitted by the Court, any motion for reconsideration of an opinion or findings of fact must be filed within 30 days after a written opinion has been served.
However, even if the Motion were timely (or we were to grant him leave), the decision entered in this case is now final. We generally cannot consider a motion to vacate that is made after a decision becomes final. See Abatti, 859 F.2d at 117-118; see also Arkansas Oil and Gas, Inc. v. Commissioner, 114 F.3d 795 (8th Cir. 1997); Snow v. Commissioner, 142 T.C. 413, 419-420 (2014). As discussed in Snow, the finality of a decision is absolute, but for a few limited exceptions: (1) where there was a fraud on the Court, (2) where the Court never acquired jurisdiction to make a decision, and (3) where the decision contained a clerical error, discovered after the decision has become final, in need of correction. See Snow, 142 T.C. at 419-420. Petitioner has not shown that any of these exceptions apply to this case.
Generally, a decision becomes final "[u]pon the expiration of the time allowed for filing a notice of appeal, if no such notice has been duly filed within such time." I.R.C. § 7481(a)(1). To be timely, a notice of appeal must be filed "within 90 days after the decision of the Tax Court is entered." I.R.C. § 7483. An order of dismissal for lack of jurisdiction is treated as the Court's decision. Stewart v. Commissioner, 127 T.C. 109, 111 (2006).
Upon due consideration of the foregoing, it is
ORDERED that petitioner's above-referenced Motion is denied.