Opinion
2567-23S
10-25-2023
RUSSELL B. POOL, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER
Kathleen Kerrigan, Chief Judge.
On January 31, 2023, petitioner filed the petition to commence this case. Therein, petitioner seeks to dispute a notice of deficiency issued to him for tax year 2020. A notice of deficiency for tax year 2020 was attached to the petition, which stated that the last day to petition the Court was January 23, 2023.
On March 29, 2023, respondent filed a Motion to Dismiss for Lack of Jurisdiction on the ground that the petition was not filed within the time prescribed by the Internal Revenue Code. Although the Court directed petitioner to file an objection, if any, to respondent's motion to dismiss, petitioner failed to do so.
On July 19, 2023, the United States Court of Appeals for the Third Circuit, to which this case would be appealable absent petitioner's election that this case be conducted under small tax case procedures, held that the filing deadline in section 6213(a) is not jurisdictional. Culp v. Commissioner, 75 F.4th 196, (3d Cir. 2023). Accordingly, we must deny respondent's Motion to Dismiss for Lack of Jurisdiction. Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff 'd, 445 F.2d 985 (10th Cir. 1971).
Due to an inadvertent clerical error, on August 29, 2023, the Court granted respondent's motion and dismissed this case for lack of jurisdiction.
On September 20, 2023, respondent filed a Status Report. However, further review indicates that respondent's Status Report appears to be more akin to a Motion to Vacate. Under the circumstances, the Court will recharacterize respondent's filing and grant respondent's Motion to Vacate.
The foregoing considered, it is
ORDERED that respondent's Status Report, filed September 20, 2023, is recharacterized as respondent's Motion to Vacate. It is further
ORDERED that respondent's Motion to Vacate is granted in that the Court's Order, entered on August 29, 2023, is hereby vacated and set aside. It is further
ORDERED that respondent's Motion to Dismiss for Lack of Jurisdiction, filed March 29, 2023 is denied. It is further
ORDERED that, on or before December 26, 2023, respondent shall file an Answer to the petition.
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