Opinion
6012-23L
09-11-2024
FLOYD X. PROCTOR, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER OF DISMISSAL
Kathleen Kerrigan, Chief Judge.
This Internal Revenue Code (I.R.C.) section 6330(d)(1) case, not yet set for trial, is before the Court on respondent's Motion for Judgment on the Pleadings, filed November 1, 2023. Although invited to do so, petitioner has not submitted an objection or otherwise responded to the Motion. Given the relief sought in the Motion, that is dismissal, and the ground for that relief, that is that the Petition was not filed within the period of limitations prescribed by I.R.C. section 6330(d)(1), respondent's Motion will be recharacterized and treated as a motion to dismiss for failure to state a claim upon which relief can be granted. See Rule 40, Tax Court Rules of Practice and Procedure.
Respondent's Motion relies upon the undisputed facts in the record that show that the Petition was not filed within the period of limitations prescribed in I.R.C. section 6330(d)(1). Petitioner has not claimed, much less established, that equitable tolling extended that period to the date that the Petition was filed. See Boechler, P.C. v. Commissioner, 142 S.Ct. 1493, 1501 (2022). That being so, it is
ORDERED that respondent's Motion for Judgment on the Pleadings is recharacterized as respondent's motion to dismiss for failure to state a claim upon which relief can be granted. It is further
ORDERED that respondent's just-referenced motion to dismiss is granted, and this case is dismissed because the Petition was not filed within the period prescribed by I.R.C. section 6330(d)(1).