Opinion
14031-20L
03-08-2022
Mark David Mazza & Lisa Ana Mazza Petitioners v. Commissioner of Internal Revenue Respondent
ORDER
David Gustafson Judge
This case is scheduled for trial at the Tax Court's Philadelphia session beginning April 18, 2022. The Commissioner filed a motion (Doc. 9) for summary judgment, with a certificate of service dated February 16, 2022. By our order of February 18, 2022 (Doc. 13), we set up a schedule for the briefing of the Commissioner's motion, pursuant to which petitioners' response was due March 9, 2022. On March 4, 2022, petitioner Mark David Mazza telephoned the chambers of the judge signing this order and requested a telephone conference. (He placed this call on Friday, March 4, 2022.) We held the Conference on March 8, 2022. Mr. Mazza advised the Court that he did not receive the Commissioner's motion until February 26, 2022, and (if we understood his description correctly) that the envelope bore a postage meter stamp dated February 22, 2022, and a postmark of February 23, 2022 (not February 16, as on the certificate of service). Respondent's counsel confirmed that the date on the certificate of service was (if we understood him) the date in which he placed the item into his office's internal mailing process, and he described a subsequent internal process that resulted in several days' delay before the item was actually delivered to the U.S. Postal Service. The Court advised him that this process is unsatisfactory and that, given the circumstances and Rule 21(b)(1)(A) ("Service by mail is complete upon mailing"), his signing of the certificate of service was inappropriate.
Mr. Mazza requested that the motion be stricken and that the case simply proceed to trial. Respondent's counsel requested instead that the briefing schedule be revised to give Mr. Mazza more time. We decided to do the latter, and we will extend petitioners' due date from March 9 to March 16, 2022.
We reminded Mr. Mazza of the instructions in our order of February 18, 2022--particularly, the need to cite by paragraph number (in paragraphs 4-28) the factual assertions in the Commissioner's motion that petitioner's dispute and to provide evidence of their counter-assertions. In addition, petitioners should set out and substantiate with evidence any additional facts that the petitioners believe relevant to their opposition to the motion. If the Court grants the Commissioner's motion, no trial will be necessary. If the Court denies the motion, then the factual disputes for trial will have been clarified.
It is
ORDERED that our order of February 18, 2022, is modified, in that petitioners shall file their response to the Commissioner's motion no later than March 16, 2022, and the Commissioner shall file his reply no later than March 29, 2022.