Opinion
6869-21
03-28-2022
Rhonda Speese Petitioner v. Commissioner of Internal Revenue Respondent
ORDER
Maurice B. Foley Chief Judge
By Order of Dismissal for Lack of Jurisdiction, entered August 26, 2021, the Court dismissed this case for lack of jurisdiction on the ground that petitioner failed to pay the Court's filing fee. On February 17, 2022, petitioner filed a letter requesting, among other things, that the filing fee for this case be waived. The Court filed petitioner's letter as a motion to vacate its Order dismissing this case.
A motion to vacate a decision generally must be filed "within 30 days after the decision has been entered, unless the Court shall otherwise permit." Rule 162, Tax Court Rules of Practice and Procedure. Furthermore, the Tax Court generally cannot consider a motion to vacate that is made after a decision becomes final. Abatti v. Commissioner, 859 F.2d 115, 118 (9th Cir. 1988), aff'g, 86 T.C. 1319 (1986). A decision becomes final "[u]pon the expiration of the time allowed for filing a notice of appeal, if no such notice has been duly filed within such time." Internal Revenue Code (I.R.C.) section 7481(a)(1). The notice of appeal must be filed within 90 days to be timely. I.R.C. sec. 7483. Petitioner's motion to vacate was filed several months after the Order of Dismissal for Lack of Jurisdiction was entered in this case on August 26, 2021. Accordingly, the Court's decision was already final when petitioner filed the motion to vacate. Once a decision becomes final, the Court's jurisdiction to revise or vacate that decision is severely limited. As discussed in Snow v. Commissioner, 142 T.C. 413, 419-420 (2014), as a general rule, the finality of a decision is absolute, with the few following exceptions: (1) where there was fraud on the Court, (2) where the Court never acquired jurisdiction to make a decision, and (3) where the Court needs to correct a clerical error in the decision discovered after the decision has become final. Petitioner has not shown that any of these exceptions apply to this case.
However, although petitioner cannot further prosecute this case, petitioner is free to continue to pursue administrative resolution of her tax liability directly with the IRS. Another remedy potentially available to petitioner, if feasible, is to pay the determined amount, then file a claim for refund with the IRS. If the claim is denied or not acted on for six months, petitioner may file a suit for refund in the appropriate Federal district court or the U.S. Court of Federal Claims. See McCormick v. Commissioner, 55 T.C. 138, 142 n.5 (1970).
Upon due consideration of the foregoing, it is
ORDERED that petitioner's motion to vacate, filed February 17, 2022, is denied.