Opinion
15235-20L
07-08-2022
ROSEL C. HURLEY, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
This case was called from the calendar at the remote Cleveland, Ohio session on November 29, 2021. On February 1, 2022, the Court entered a Stipulated Decision. On March 12, 2022, petitioner filed a Motion to Reopen the Record. On April 6, 2022, respondent filed a Response objecting to petitioner's Motion to Reopen the Record. Petitioner filed a Response to respondent's objection on May 3, 2022.
Background
On May 4, 2009, respondent filed a Notice of Federal Tax Lien (first NFTL) in Cuyahoga County with respect to petitioner's taxable years 2005, 2006, and 2007. With respect to 2007, the first NFTL provided that unless the notice of lien was refiled by December 24, 2018, the notice "shall constitute the certificate of release of lien as defined in [§] 6325(a)." On December 24, 2018, the first NFTL with respect to 2007 self-released.
A second Notice of Federal Tax Lien (second NFTL) was filed in Cuyahoga County with respect to petitioner's 2007, 2009, 2014, 2016, and 2017 taxable years. Respondent sent petitioner a Notice of Federal Tax Lien Filing and Your Right to a Hearing Under IRC 5320, dated May 21, 2019. In response to the 2019 notice of the filing of the second NFTL, petitioner requested a collection due process hearing with respondent's Independent Office of Appeals pursuant to § 6330(b)(1). On November 10, 2020, the Independent Office of Appeals issued a Notice of Determination Concerning Collection Actions sustaining the filing of the second NFTL.
On November 17, 2021, respondent revoked the certificate of release of the first NFTL for 2007 and requested that the second NFTL be partially withdrawn with respect to 2007. On December 28, 2021, the partial withdrawal of the second NFTL for 2007 was recorded. Respondent withdrew the second NFTL because it was filed before the certificate of release with respect to the first NFTL for 2007 was revoked.
Petitioner filed a Petition with this Court on December 28, 2020. The parties filed a Stipulation of Settled Issues on November 26, 2021, resolving tax years 2014, 2016, and 2017. This stipulation stated that respondent planned to partially withdraw the second NFTL with respect to 2007. A second Stipulation of Settled Issues filed November 29, 2021, resolved tax year 2009. Thereafter, 2007 was the only remaining year at issue.
On January 25, 2022, respondent filed a Motion to Partially Dismiss on Ground of Mootness. Petitioner was not opposed to this motion. Respondent contended that there was no remaining case or controversy with respect to taxable year 2007. Respondent's Motion to Partially Dismiss on Ground of Mootness was granted on January 27, 2022, and a stipulated decision was entered on February 1, 2022. On March 2, 2022, respondent filed a new Notice of Federal Tax Lien (third NFTL) with respect to petitioner's 2007 tax year. On March 12, 2022, petitioner filed a Motion to Reopen the Record.
Discussion
Under Rule 162 of the Tax Court Rules of Practice and Procedure, any motion to vacate or revise a decision must be filed within 30 days after the decision has been entered. Petitioner's Motion to Reopen the Record was filed untimely.
Generally, the Court grants a Motion to Reopen the Record only if the evidence relied on is not merely cumulative or impeaching, is material to the issues involved, and it is probable the evidence would change some aspect of the outcome of the case. Butler v. Commissioner, 114 T.C. 276, 287 (2000). Petitioner's Motion to Reopen the Record does not introduce any such evidence. The second NFTL with respect to 2007 was withdrawn rendering the matter moot insofar as this case is concerned. Respondent's subsequent filing of the third NFTL has no bearing on the outcome of this case. The third NFTL was filed after the Petition in this case was filed.
Pursuant to section 6325(f)(2) if the Secretary determines that a certificate of release of a lien was issued erroneously and the period of limitation on collection after assessment has not expired, the Secretary may revoke such certificate and reinstate the lien. Once respondent revoked the certificate of release of the first NFTL with respect to taxable year 2007 and withdrew the second lien with respect to taxable year 2007, respondent could filed a new NFTL which would be effective from the date filed. See Hoyle v. Commissioner, 136 T.C.463, 473-74 (2011).
Upon due consideration, it is
ORDERED that petitioner's Motion to Reopen the Record is denied.