Opinion
15069-19
09-07-2021
Stephen R. Kelley & Isabelle Kelley, Petitioners v. Commissioner of Internal Revenue, Respondent
ORDER
Elizabeth A. Copeland Judge.
This Order requires petitioners, Stephen R. Kelley and Isabelle Kelley, to respond in writing by October 4, 2021.
This case is set for trial at the November 1, 2021, Trial Session of the Court where Houston, Texas is listed as the place of trial. Because this trial session is being conducted remotely, the place of trial is for administrative purposes only.
On September 2, 2021, respondent (a representative of the Internal Revenue Service (IRS)) filed with the Court: (1) a Motion for Summary Judgment; (2) a Memorandum in Support of Motion for Summary Judgment; (3) a Declaration of Yvette Nunez in Support of Motion for Summary Judgment; and (4) a Declaration of Paul C. Feinberg in Support of Motion for Summary Judgment.
Respondent's Motion for Summary Judgment requests, pursuant to Tax Court Rule 121, for summary adjudication in respondent's favor of all issues presented in this case. Which means that the IRS wishes for the Court to end Mr. & Mrs. Kelley's Tax Court case and hold that the Kelleys owe tax of $76, 565, a penalty of $19, 565, plus interest. Respondent contends that he has "reviewed the administrative file and the documents obtained by subpoena, and on the basis of the administrative file, subpoenaed documents, and the pleadings, concludes that there remains no genuine issue of material fact for trial."
In accordance with Rule 50 of the Tax Court Rules of Practice and Procedure, the Court is ordering the Kelleys to file with the Court a response to respondent's Motion for Summary Judgment.
If the Kelleys disagree with the facts set out in numbered paragraphs 1 through 19 of respondent's Memorandum in Support of Motion for Summary Judgment, then their response to the Court should:
1. Point out the specific items in dispute;
2. Explain why they are in dispute; and
3. Provide specific examples, if necessary.
If the Kelleys disagree with respondent's analysis as to the law, then their response should also tell the Court their position on the disputed legal issues. Q&A's that the Court has prepared on the subject "What is a motion for summary judgment? How should I respond to one?" are available on the Court's website at https://www.ustaxcourt.gov/petitioners.html and are printed on the page attached to this Order.
The Kelleys should note that, as it relates to motions for summary judgment, Tax Court Rule 121(d) provides that "If the adverse party [i.e., the Kelleys] does not so respond [to the motion for summary judgment], then a decision, if appropriate, may be entered against such party." In other words, if the Kelleys do not respond to the Court's order on or before October 4, 2021, this Court may grant respondent's Motion for Summary Judgment and end the Kelleys' case.
The Kelleys are reminded of the free legal help available for responding to this Order and assisting them with their case, namely, the low-income taxpayer clinics in their area. The clinics and their contact information are listed below:
Accounting Aid Society LITC Alvin L. Storrs LITC 3031 West Grand Boulevard, Suite 470 MSU School of Law Detroit, Michigan 48202 P.O. Box 1570 (313) 556-1920 x1219 East Lansing, Michigan 48826 (866) 673-0873 x1219 (toll free) (517) 432-6880 https://accountingaidsociety.org http://taxclinic.law.msu.edu/ West Michigan LITC Toledo Tax Controversy Clinic 25 Division Ave. South, Suite 300 University of Toledo COL Grand Rapids, Michigan 49503 1825 W. Rocket Drive (616) 774-0672 Toledo, OH 43606 (800) 442-2777 (419) 684-8822 https://lawestmi.org
After due consideration, and for cause, it is hereby
ORDERED that, on or before October 4, 2021, petitioners shall file a response to respondent's Motion for Summary Judgment, filed on September 2, 2021. Failure to respond as required by this Order may be deemed to be consent to the relief respondent seeks in his motion.
What is a motion for summary judgment? How should I respond to one?
The motion. A motion for summary judgment requests a ruling from a judge on some or all of the issues in a case before trial. If a motion for summary judgment is filed, the judge will review the documents submitted by the parties and consider whether the case can be decided without a trial. The party filing the motion must show that there is no genuine dispute of any important fact and that the party filing the motion is entitled to judgment in their favor as a matter of law. See Rule 121.
Your response. If the Court orders you to file a response to a motion for summary judgment, your response must: specify which factual statements in the motion for summary judgment you dispute, state what you contend the actual facts are, and cite the specific evidence that you rely on to support your factual contentions. That is, you must do more than deny or disagree with the motion. Instead, you must set forth specific facts that establish there is a factual dispute and that a trial is necessary to resolve that dispute. It is not enough merely to claim that a fact is in dispute. You must support your claim that there is a question about a material fact (or facts) by submitting with your response the evidence you rely on.
Your evidence. Your supporting evidence may include your own sworn affidavit or unsworn declaration given under penalty of perjury (Form 18, Unsworn Declaration under Penalty of Perjury). Your declaration can state facts about which you have personal knowledge. If your evidence includes documents, then you should submit those with your response (preferably numbered as Exhibits), and your declaration should identify and authenticate those documents. Your supporting evidence may also include other affidavits, stipulations, admissions, answers to interrogatories, or deposition transcripts.
Legal disputes. A motion for summary judgment may involve not only factual disputes but also legal disputes. If you disagree with the IRS's explanation of the law that applies to your case, you should explain your disagreement and cite the statutes, regulations, or other authorities that apply to your case.
Failure to respond. If the IRS files a motion for summary judgment in your case and the Court orders you to file a response, then failure to file a response may be grounds for granting the motion. See Rules 121(d) and 123(b).
Results of summary judgment. If a motion for summary judgment is granted in favor of the IRS, then there will be no trial, and a judgment will be entered against you.