Opinion
6531-22L
02-15-2023
CLOUDY SMITH, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent
ORDER AND DECISION
TAMARA W. ASHFORD JUDGE
This section 6330(d)(1) appeal from a collection due process determination is currently calendared for a remote proceeding on February 27, 2023, and pending before the Court is respondent's Motion for Judgment on the Pleadings pursuant to Rule 120(a) (Rule 120(a) motion), filed December 20, 2022. By Order served on the parties on December 27, 2022, the Court ordered petitioner to file a response to respondent's Rule 120(a) motion no later than January 26, 2023. As of the date of this Order, petitioner has not responded to either respondent's Rule 120(a) motion or the Court's December 27, 2022, Order.
Unless otherwise indicated, all statutory references are to the Internal Revenue Code, Title 26 U.S.C., in effect at all relevant times, and all Rule references are to the Tax Court Rules of Practice and Procedure.
Background
On March 8, 2022, petitioner filed a Petition commencing this case, contesting a notice of determination dated January 12, 2022. On May 17, 2022, respondent filed an Answer, affirmatively alleging that the Petition was not filed within the time prescribed by section 6330(d)(1) as the 30-day period for timely filing a petition with this Court expired on February 11, 2022. On July 21, 2022, respondent filed a Motion for Entry of Order that Undenied Allegations be Deemed Admitted Pursuant to Rule 37(c) (Rule 37(c) motion). By Order served on the parties on July 22, 2022, the Court ordered petitioner to file a reply to respondent's Answer no later than August 15, 2022. Petitioner did not file a reply as directed by the Court and thus by Order served on the parties on December 8, 2022, the Court granted respondent's Rule 37(c) motion and the allegations set forth in paragraphs 1 through 3 of respondent's Answer were deemed admitted.
In respondent's Rule 120(a) motion, respondent asks this Court to dismiss this case with prejudice because as alleged in paragraphs 1 through 3 of respondent's Answer, admitted by the Court's December 8, 2022, Order, the Petition was filed with the Court late or outside the 30-day statutory period prescribed in section 6330(d)(1) (and petitioner does not dispute that the Petition is time-barred).
Discussion
Rule 120(a) permits any party, after the pleadings are closed but within such time as not to delay the trial, to move for judgment on the pleadings, which is based solely on the allegations and information contained in the pleadings and not on any outside matters. Nis Family Trust v. Commissioner, 115 T.C. 523, 537 (2000). The movant must show that the pleadings do not raise a genuine issue of material fact and that he or she is entitled to a judgment as a matter of law. Id.
The section 6330(d)(1) 30-day filing deadline is not jurisdictional, which means this Court has authority to consider late-filed petitions, and the Court may accept a tardy filing by applying the doctrine of equitable tolling. Boechler, P.C. v. Commissioner, 142 S.Ct. 1493, 1496 (2022). A litigant is entitled to equitable tolling of a statute of limitations only if the litigant establishes that he or she has been pursuing his or her rights diligently and that some extraordinary circumstance prevented him or her from timely filing. Menominee Indian Tribe of Wisc. v. United States, 577 U.S. 250, 255-57 (2016); Smith v. Davis, 953 F.3d 582, 588 (9th Cir. 2020) (en banc). Petitioner has not asserted that she satisfies this test, so the Court may not accept her Petition by equitable tolling.
The Tax Court will follow a Court of Appeals decision which is squarely on point where appeal from our decision lies to that Court of Appeals alone. Golsen v. Commissioner, 54 T.C. 742, 757 (1970), aff'd, 445 F.2d 985 (10th Cir. 1971). Petitioner's residence in California when she petitioned this Court makes the U.S. Court of Appeals for the Ninth Circuit the appellate venue for this case. See § 7482(b)(1)(G)(i); 28 U.S.C. § 41 (2018).
To reflect the foregoing, it is hereby
ORDERED that respondent's Motion for Judgment on the Pleadings, filed December 20, 2022, is granted, and this case is dismissed with prejudice. It is further
ORDERED and DECIDED that respondent may proceed with the collection action sustained in the notice of determination dated January 12, 2022.