Opinion
235-24
08-05-2024
RODOLFO JAMES, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan Chief Judge
This case for the redetermination of a deficiency is before the Court on respondent's Motion for Judgment on the Pleadings, filed July 2, 2024. The record shows that: (1) a notice of deficiency, dated May 22, 2023, was issued and mailed to petitioner on May 18, 2023; (2) the 90-day period for timely filing a petition seeking review of the deficiency determined in that notice expired on August 21, 2023; and (3) the date that the petition was mailed to the Court cannot be determined from the record, but it is dated December 15, 2023, and it was received and filed by the Court on January 2, 2024, both dates long after the 90-day period for timely filing had expired.
Absent a stipulation, this case is appealable to the U.S. Court of Appeals for the Third Circuit, which has ruled that the 90-day period for filing a deficiency petition is not jurisdictional and is subject to equitable tolling. See Culp v. Commissioner, 75 F.4th 196 (3d Cir. 2023), cert. denied, No. 23-1037, 2024 U.S. LEXIS 2725 (U.S. June 24, 2024); see also Golsen v. Commissioner, 54 T.C. 742, 756-57 (1970) (holding that "better judicial administration requires us to follow a Court of Appeals decision which is squarely in point where appeal from our decision lies to that Court of Appeals"), affd, 445 F.2d 985 (10th Cir. 1971).
Premises considered, it is
ORDERED that respondent's motion is recharacterized and treated as a motion to dismiss for failure to state a claim upon which relief can be granted. To ensure an adequate opportunity for petitioner to be heard notwithstanding a representation by respondent that there is no objection to the granting of the motion, it is further
ORDERED that petitioner's objection, if any, to respondent's motion is due not later than August 27, 2024. If an objection is filed, petitioner should explain why he was unable to file his Petition within the above-referenced 90-day period.
Petitioner is advised that his failure to timely object to respondent's motion could result in the entry of decision as requested in the motion.
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