Opinion
35603-21S
09-27-2022
Juan Sanabria Lopez, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Richard T. Morrison, Judge
A petition commencing this case was received on November 23, 2021. The petition purports to seek review of a notice of deficiency dated August 24, 2021, purportedly issued to him for tax years 2017 and 2018. However, attached to the petition is a copy of August 24, 2021 notice of deficiency for only 2018. This notice of deficiency states the last day for filing a timely Tax Court petition as to that notice would expire on November 22, 2021. The postmark on the envelope containing the petition bears the date November 18, 2021. Therefore, the petition is considered filed on November 18, 2021, 26 C.F.R. § 301.7502-1(a), and is timely filed with respect to 2018. The petition did not attach a copy of the notice of deficiency for 2017.
On August 30, 2022, respondent filed a motion to dismiss for lack of jurisdiction as to the taxable year 2017. Attached to respondent's motion is a copy of the notice of deficiency for 2017. The notice of deficiency attached to respondent's motion is undated and furthermore does not state the date by which a timely Tax Court petition must be filed. Respondent's motion states that the notice of deficiency for 2017 was mailed on October 28, 2020, and the last day for filing a timely Tax Court petition was January 26, 2021.
Pending before the Court in Hallmark Research Collective v. Commissioner (Docket No. 21284-21) (Hallmark) is a motion asking the Court to vacate its previous order granting dismissal of Hallmark's deficiency case for lack of jurisdiction. The Hallmark motion to vacate asks the Court to address whether I.R.C. § 6213(a)'s 90-day limit for filing a petition in this Court (after the issuance of a notice of deficiency) is jurisdictional or may be equitably tolled in light of the recent United States Supreme Court decision Boechler, P.C. v. Commissioner, 142 U.S. 1493 (2022).
Before taking further action in this case, we will await the ruling of this Court on the Hallmark motion to vacate.
Accordingly, it is
ORDERED that respondent's August 30, 2022 motion to dismiss for lack of jurisdiction as to tax year 2017 is held in abeyance until our Court rules on [Hallmark's] Motion to Vacate Order of Dismissal for Lack of Jurisdiction filed May 2, 2022, in Docket No. 21284-21. It is further
ORDERED that respondent shall, on or before October 24, 2022, file a response to this Order attaching a copy of the notice of deficiency upon which this case is based, which includes the mailing date and the last day for filing a Tax Court petition. It is further
ORDERED that this case is stricken for trial from the Court's December 12, 2022 Trial Session in Los Angeles, California and jurisdiction of this case is retained by the Undersigned.