Opinion
24228-22SL
05-06-2024
FOROMO E. LAMAH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Diana L. Leyden, Special Trial Judge
This case is calendared for trial at the June 10, 2024, Albany, New York, Trial Session of the Court.
On November 17, 2022, petitioner filed a Petition commencing this case, contesting a Notice of Determination Concerning Collection Actions under IRC Sections 6320 or 6330 of the Internal Revenue Code, dated September 1, 2021 (notice of determination). On January 6, 2023, respondent filed an Answer and alleged that the Petition challenging the notice of determination was not timely filed. On January 27, 2023, petitioner filed a Reply to Answer and denied respondent's allegations, instead alleging that "[t]his case is not based upon the Notice of Determination dated September 1, 2021, and as such, is not an appeal of that determination; and thus, not subject to the 30-day statutory period. This case was filed as a result of Respondent's failure to process a duly filed amended return." In that same filing petitioner further alleged that "[t]he 30-day period for timely filing a petition does not apply as the above-entitled petition is not an appeal of any decision, but rather an attempt to ask the Court to issue an injunction compelling Respondent to promptly process a duly filed amended return."
On April 11, 2024, respondent filed a Motion for Summary Judgment (motion) under Rule 121. In the motion respondent argues that respondent is entitled to summary judgment because petitioner failed to timely file the Petition within 30 days from the date of the notice of determination as required by section 6330(d)(1) of the Internal Revenue Code. As noted above, the notice of determination was issued on September 1, 2021, and petitioner filed his Petition challenging the notice of determination on November 17, 2022, which was 442 days from the date of the notice of determination and 412 days from the end of the 30-day period after the expiration of the 30-day deadline to timely file a petition with the Tax Court.
Respondent further argues that petitioner did not plead facts sufficient to demonstrate he is entitled to equitable tolling as to the question of timely filing of the Petition.
The section 6330(d)(1) 30-day filing deadline is not jurisdictional, which means the Tax Court has authority to consider late-filed petitions, and the Tax Court may accept a tardy 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). However, petitioner has not asserted that he satisfies this test, so the Court may not accept his Petition under the principles of equitable tolling.
On April 30, 2024, the Court held a conference call with the parties. During the call petitioner acknowledged that he filed the Petition well after the due date on the notice of determination and stated that he was not challenging the notice of determination. He informed the Court that he raised the issue of the IRS not processing his amended returns for the year in issue at his collection due process (CDP) hearing, and he chose not to challenge the notice of determination within the timely period because he planned to file another amended return, which he did. He further stated, consistent with his Reply to Answer, that he did not file his Petition to appeal the notice of determination, but to compel the IRS to process his amended return.
The Tax Court is a court of limited jurisdiction, and it does not have jurisdiction to do as petitioner moves. Accordingly, the Court will, on its own motion, dismiss this case for untimeliness. Because the Court is dismissing this case, petitioner is not expected to appear at the calendar call on Monday, June 10, 2024. Upon due consideration and for cause, it is
ORDERED that, on the Court's own motion, this case is dismissed because the Petition in this case was not timely filed and petitioner has not alleged that the doctrine of equitable tolling applies. It is further
ORDERED that respondent's Motion for Summary Judgment, filed April 11, 2024, is denied as moot.