T.C. Memo. 2006-237
UNITED STATES TAX COURT
JASON GOLDITCH, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11944-05L. Filed November 2, 2006.
Jason Golditch, pro se.
MEMORANDUM OPINION
RUWE, Judge: This case is before the Court on petitioner’s
Motion for Leave to File Motion to Vacate Order of Dismissal for
Lack of Jurisdiction (hereinafter referred to as petitioner’s
motion for leave). We must decide whether to grant petitioner’s
motion for leave. At all relevant times, petitioner resided in
Watsonville, California.
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Background
On May 23, 2005, respondent mailed to petitioner a Notice of
Determination Concerning Collection Actions(s) Under Section 6320
and/or 6330 (notice of determination) regarding his unpaid
Federal income tax for 2001.1 Respondent’s Office of Appeals
determined that it was appropriate to collect petitioner’s unpaid
taxes by levy. On June 20, 2005, petitioner sent to the Court a
document, which states in relevant part:
Dear Tax Court Judge,
The Collection Due Process Hearing that I requested has
been decided. I need your assistance regarding a
Notice of Determination I received from the Internal
Revenue Service for the tax year _2001__. I believe
that it has been unfair and biased. I was not provided
information that I requested from the hearing agent.
The letter states that I must file a petition with the
U.S. Tax Court if I believe the IRS numbers are wrong.
I think the IRS is wrong but I am not sure if I am
doing this protest right. I told the IRS I didn’t owe
them anything and they still have not shown me any
proof to support their claim. Could you please write
to me and let me know the procedure?
I need the help of the Tax Court to clarify this
matter. I am unclear as to what rules of procedure and
evidence were to preside over my Collection Due Process
Hearing. Although I asked many times I never received
any information on such procedures. The agent was no
help at all.
Now a whole new procedure is beginning and I am more
confused. I am unsure of what to do from here. Will
1
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the year in issue, and all
Rule references are to the Tax Court Rules of Practice and
Procedure.
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you please advise what my next steps are and if there
is public council available for my assistance? When am
I supposed to go to court over this? Would I receive
the assistance of a public defender?
Thank you for reading my letter and trying to help me.
This document failed to comply with the Rules of the Court
as to the form and content of a proper petition. Nevertheless,
on June 27, 2005, the Court filed the document as an imperfect
petition regarding respondent’s notice of determination. By
order dated June 30, 2005, the Court directed petitioner to file
a proper amended petition on or before August 15, 2005. The
order stated that if an amended petition was not received on or
before August 15, 2005, the case would be dismissed. By order
dated September 13, 2005, the Court extended the time for
petitioner to file an amended petition until October 3, 2005.
Petitioner failed to comply with the Court’s orders to file an
amended petition. On December 21, 2005, the Court entered an
Order of Dismissal for Lack of Jurisdiction (order of dismissal).
On April 26, 2006, 126 days after the Court entered its
order of dismissal, petitioner mailed to the Court two documents
entitled “Motion for Leave to File Motion to Vacate Order of
Dismissal for Lack of Jurisdiction” and “Motion to Vacate Order
of Dismissal for Lack of Jurisdiction” (motion to vacate).2
2
Both documents were signed and dated Apr. 26, 2006, and
the envelope in which these documents were sent bears a postmark
of Apr. 26, 2006.
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Petitioner’s motion for leave and motion to vacate state in
relevant part:
MOTION FOR LEAVE TO FILE MOTION TO VACATE ORDER OF
DISMISSAL FOR LACK OF JURISDICTION
PETITIONER respectfully requests permission from the
Court to file this motion to vacate “ORDER OF DISMISSAL
FOR LACK OF JURISDICTION” for the tax year/s 2001, with
Docket No. 11944-05L. PETITIONER also request [sic]
leave from the court to accept PETITIONER’s amended
petition. PETITIONER desires to dispute the
RESPONDENT’s determination made with respect to
PETITIONER’s income taxes for the tax year.
MOTION TO VACATE ORDER OF DISMISSAL FOR LACK OF
JURISDICTION
PETITIONER respectfully requests that the Court vacate
its Order of Dismissal for Lack of Jurisdiction and
determine the case laid out by the PETITIONER’s Amended
Petition, which will be filed concurrently with this
motion. PETITIONER will also file Motion to Remand and
Designation of Place of Trial concurrently with this
motion.
Petitioner submitted an amended petition concurrently with the
motion for leave and the motion to vacate. On June 1, 2006, the
Court filed petitioner’s motion for leave and lodged the motion
to vacate and the amended petition.
Discussion
This Court can proceed in a case only if it has
jurisdiction, and either party, or the Court sua sponte, can
question jurisdiction at any time. Stewart v. Commissioner, 127
T.C. ___, ___ (2006) (slip op. at 6); Estate of Young v.
Commissioner, 81 T.C. 879, 880-881 (1983).
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On December 21, 2005, we dismissed petitioner’s case for
lack of jurisdiction. An order of dismissal for lack of
jurisdiction is treated as the Court’s decision. Stewart v.
Commissioner, supra at ___ (slip op. at 5); Hazim v.
Commissioner, 82 T.C. 471, 476 (1984). Section 7459(c) provides,
in relevant part:
SEC. 7459(c). Date of Decision.–- * * *. * * *
if the Tax Court dismisses a proceeding for lack of
jurisdiction, an order to that effect shall be entered
in the records of the Tax Court, and the decision of
the Tax Court shall be held to be rendered upon the
date of such entry.
The word “decision” refers to decisions determining a deficiency
and orders of dismissal for lack of jurisdiction. Ryan v.
Commissioner, 517 F.2d 13, 16 (7th Cir. 1975); Commissioner v. S.
Frieder & Sons Co., 228 F.2d 478, 480 (3d Cir. 1955); Stewart v.
Commissioner, supra at ___ (slip op. at 5).
In order for us to consider the substantive merits of
petitioner’s motion for leave, we must still have jurisdiction.
Stewart v. Commissioner, supra at ___ (slip op. at 6). Except
for very limited exceptions, none of which applies here, this
Court lacks jurisdiction once an order of dismissal for lack of
jurisdiction becomes final within the meaning of section 7481.
Stewart v. Commissioner, supra at ___ (slip op. at 6-7 & n.3). A
decision of the Tax Court becomes final “Upon the expiration of
the time allowed for filing a notice of appeal, if no such notice
has been duly filed within such time”. Sec. 7481(a)(1). Section
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7483 provides that a notice of appeal may be filed within 90 days
after a decision is entered.3
Pursuant to rule 13(a) of the Federal Rules of Appellate
Procedure, if under the Tax Court’s Rules a party makes a timely
motion to vacate or revise a decision, “the time to file a notice
of appeal runs from the entry of the order disposing of the
motion or from the entry of a new decision, whichever is later.”4
Our Rule 162 provides that “Any motion to vacate or revise a
decision, with or without a new or further trial, shall be filed
within 30 days after the decision has been entered, unless the
Court shall otherwise permit.” (Emphasis added.) Petitioner did
not file a motion to vacate or revise within 30 days after the
3
As previously explained, an order of dismissal for lack of
jurisdiction is treated as the Court’s decision.
4
Fed. R. App. P. 13(a) provides:
Rule 13. Review of a Decision of the Tax Court.
(a) How Obtained; Time for Filing Notice of Appeal.
(1) Review of a decision of the United States Tax Court
is commenced by filing a notice of appeal with the Tax
Court clerk within 90 days after the entry of the Tax
Court’s decision. At the time of filing, the appellant
must furnish the clerk with enough copies of the notice
to enable the clerk to comply with Rule 3(d). If one
party files a timely notice of appeal, any other party
may file a notice of appeal within 120 days after the
Tax Court’s decision is entered. (2) If, under Tax
Court rules, a party makes a timely motion to vacate or
revise the Tax Court’s decision, the time to file a
notice of appeal runs from the entry of the order
disposing of the motion or from the entry of a new
decision, whichever is later.
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Court’s order of dismissal was entered. Therefore, in order for
his motion to vacate to be considered timely filed, Rule 162
required petitioner to file a motion for leave to file a motion
to vacate or revise, the granting of which lies within the sound
discretion of the Court. See Rule 162; Heim v. Commissioner, 872
F.2d 245, 246 (8th Cir. 1989), affg. T.C. Memo. 1987-1; Stewart
v. Commissioner, supra at ___ (slip op. at 5-6); Brookes v.
Commissioner, 108 T.C. 1, 7 (1997).
If a motion for leave to file a motion to vacate is filed
before the order of dismissal for lack of jurisdiction becomes
final and the Court grants the motion for leave, then the time
for appeal is extended. Manchester Group v. Commissioner, 113
F.3d 1087, 1088 (9th Cir. 1997), revg. T.C. Memo. 1994-604;
Nordvik v. Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995),
affg. T.C. Memo. 1992-731; Stewart v. Commissioner, supra at ___
(slip op. at 14). Petitioner’s motion for leave to file a motion
to vacate would not extend the time for appeal unless the Court
granted the motion for leave and considered the merits of the
motion to vacate. Nordvik v. Commissioner, supra at 1492;
Stewart v. Commissioner, supra at ___ (slip op. at 15-16). But
in order to grant the motion for leave, the motion for leave must
be filed before the order of dismissal for lack of jurisdiction
has become final. This is because the Court is without
jurisdiction to act on the motion for leave once the order of
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dismissal for lack of jurisdiction becomes final. Stewart v.
Commissioner, supra at ___ (slip op. at 6-8); see Haley v.
Commissioner, 805 F. Supp. 834, 836 (E.D. Cal. 1992), affd.
without published opinion 5 F.3d 536 (9th Cir. 1993).5 If the
Court does not have jurisdiction to grant the motion for leave,
then the motion to vacate could not be filed. Nordvik v.
Commissioner, supra at 1492; Stewart v. Commissioner, supra at
___ (slip op. at 15).
The Court entered the order of dismissal on December 21,
2005, and petitioner did not file a notice of appeal within the
time prescribed by section 7483. Had petitioner mailed his
motion for leave in an envelope postmarked on or before March 21,
2006, we would have had jurisdiction to consider whether to grant
his motion for leave and allow petitioner to file his motion to
vacate. See Stewart v. Commissioner, supra. However, petitioner
did not mail the motion for leave until April 26, 2006, 126 days
after the Court entered the order of dismissal. The motion for
leave was mailed and filed well after the period for appeal
expired and the order of dismissal for lack of jurisdiction had
become final. Therefore, we lack jurisdiction to consider
5
In Nordvik v. Commissioner, 67 F.3d 1489, 1492 n.2 (9th
Cir. 1995), affg. T.C. Memo. 1992-731, the Court of Appeals for
the Ninth Circuit expressly adopted the reasoning of the District
Court in Haley v. Commissioner, 805 F. Supp. 834 (E.D. Cal.
1992), affd. without published opinion 5 F.3d 536 (9th Cir.
1993).
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petitioner’s motion for leave. It follows that the Court’s order
of dismissal for lack of jurisdiction in this case became final
on March 21, 2006, 90 days after our order of dismissal for lack
of jurisdiction was entered and cannot be vacated.
An appropriate order will
be issued.