Opinion
24762-17
01-27-2022
Jesse C. Morreale Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
L. Paige Marvel, Judge
On July 15, 2021, the Court issued its Memorandum Opinion (T.C. Memo. 2021-90) in this case, and on August 20, 2021, served its Order and Decision on the parties. In the Order and Decision, the Court, among other things, granted petitioner's motion for reasonable litigation or administrative costs, filed February 28, 2019 and awarded to petitioner $15,034 for reasonable litigation costs.
On December 23, 2021, petitioner filed a motion to enforce a refund of overpayment pursuant to Rule 260. In his motion, petitioner asks the Court to enforce the August 20, 2021 Order and Decision by entering an order directing the Internal Revenue Service (IRS) to issue to petitioner a payment of $15,034 plus interest. On December 28, 2021, the Court ordered respondent to file a response to petitioner's motion. Respondent filed his response on January 24, 2022. On January 25, 2022, petitioner filed a reply to respondent's response.
In his response, respondent describes the procedures, which are set forth in the Chief Counsel Directives Manual at part 35, Chapter 10, section 1 (35.10.1), that must be followed to process a payment of litigation and administrative costs and fees. Respondent further states that, as of January 11, 2022, respondent's counsel had forwarded the Award Data Sheet, Entered Decision, and the Court's Order to its Legal Processing Division. Respondent represents that it would take approximately 4-6 weeks to process payment of an award. Respondent also states that additional delays in processing the payment may occur while petitioner's motion to enforce is outstanding. Petitioner disagrees with respondent's timeline and asks the Court to "provide justice to Petitioner" by issuing an order to compel expeditious payment of the award.
Under Rule 260, Tax Court Rules of Practice and Procedure, a taxpayer may bring an action to enforce an overpayment determined by the Court. Rule 260(a)(2), however, provides that no such action may be brought until 120 days after the decision of the Court determining the overpayment has become final under section 7481(a) of the Internal Revenue Code. The order and decision became final 90 days after August 20, 2021, and no action can be commenced under Rule 260 for 120 days after that date. In this case, the decision became final on November 18, 2021, and the 120th day following the date of finality is March 18, 2022. Even assuming that an award of litigation costs constitutes an overpayment within the meaning of Rule 260, petitioner's motion to enforce, filed December 23, 2021, is premature, and must be denied. Petitioner may renew the motion at the appropriate time; but the Court encourages petitioner to communicate with respondent's counsel regarding the status of the award payment before renewing his motion. Accordingly, upon due consideration and for cause, it is
ORDERED that petitioner's motion to enforce an overpayment determination pursuant to Rule 260, filed December 23, 2021, is denied without prejudice.