Opinion
17832-22
04-24-2023
DUSTIN ANTHONY NEWELL & MELISSA HOGG NEWELL, Petitioners v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Diana L. Leyden, Special Trial Judge
This case is not currently calendared for trial.
On August 13, 2022, petitioners filed a Petition in this case, and the Petition was served on respondent on August 16, 2022. Petitioners did not attach a notice of deficiency or notice of determination to the Petition. Respondent filed an Answer on October 4, 2022. In the Answer respondent alleged that he was checking his records and would file any relevant notice of deficiency or notice of determination with the Court if and when respondent located such a notice. On October 8, 2022, petitioners filed a Motion for Judgment on the Pleadings (motion). In the motion petitioners allege that respondent's Answer was filed after the time allotted for motions to be filed.
In their motion petitioners further argued in the alternative that respondent's failure to find the notice of deficiency or notice of determination at the time of the filing of the Answer meant that respondent has failed to find any deficiency and there is not any genuine issue of material fact. Thus, petitioners assert that the Court should grant them summary judgment as there are not any material facts in dispute.
On November 2, 2022, respondent filed a Response to Motion for Judgment on the Pleadings (response). As to petitioners' first contention that the Answer was untimely filed, respondent argues that pursuant to Rule 36 respondent has 60 days from the service of a petition to file an answer. In the present case, respondent filed his Answer 51 days after service of the Petition, within the time allowed by the Court's rules. As to petitioners' second argument respondent argues that there is a dispute as to whether petitioners received a notice of deficiency or notice of determination, which brings into question the Court's jurisdiction and the facts upon which this case is based. Further, respondent argues that his Answer denied that the Internal Revenue Service (IRS) erred in its determination in this case, another dispute of material fact. Therefore, respondent asserts that, there being material facts in dispute, the Court should not grant petitioners' summary judgment.
By Order served February 8, 2023, the Court directed the parties to file a response to the Order and attach thereto a copy of the notice or notices upon which this case is based. Both parties filed responses to the Court's Order, and attached thereto a notice of deficiency dated May 23, 2022, for tax year 2019, which establishes the Court's jurisdiction and upon which this case is based. By Order served April 18, 2023, this case was assigned to the undersigned for the disposition of petitioner's motion.
Upon due consideration, it is
ORDERED that petitioner's Motion for Judgment on the Pleadings, filed October 8, 2022, is denied with prejudice.