T.C. Memo. 2006-247
UNITED STATES TAX COURT
JUDITH WALTHER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 10479-05L. Filed November 14, 2006.
Judith Walther, pro se.
Jeremy L. McPherson, for respondent.
MEMORANDUM OPINION
RUWE, Judge: This case is before the Court on petitioner’s
Motion for Leave to File Motion to Vacate Order of Dismissal
Embodying Motion to Vacate Order of Dismissal (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 Grass Valley, California.
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Background
On May 3, 2005, respondent issued to petitioner a Notice of
Determination Concerning Collection Actions(s) Under Section 6320
and/or 6330 (notice of determination) regarding her unpaid
Federal income tax for 1997.1 Respondent’s Office of Appeals
determined that it was appropriate to collect petitioner’s unpaid
taxes by levy. On May 31, 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 1997. 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, all 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 [sic] 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. Petitioner also
failed to submit the required filing fee. Nevertheless, on June
7, 2005, the Court filed petitioner’s document as an imperfect
petition regarding respondent’s notice of determination. By
order dated June 9, 2005, the Court directed petitioner to file a
proper amended petition and to pay the filing fee on or before
July 25, 2005. The order stated that if an amended petition and
the filing fee were not received on or before July 25, 2005, the
case would be dismissed. By order dated October 13, 2005, the
Court extended the time for petitioner to file a proper amended
petition and to pay the filing fee until November 3, 2005.
Petitioner paid the filing fee but failed to timely respond to
the Court’s orders to file an amended petition. On January 19,
2006, the Court entered an Order of Dismissal for Lack of
Jurisdiction (order of dismissal).
On April 12, 2006, 83 days after the order of dismissal was
entered, petitioner mailed to the Court a document entitled
“Request Permission to File Motion to Vacate Order of Dismissal
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for Lack of Jurisdiction/Motion to Vacate Order of Dismissal for
Lack of Jurisdiction”, which states in relevant part:2
REQUEST PERMISSION 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 1997, with
Docket No. 10479-05L. 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 a Motion to Remand
and Designation of Place of Trial concurrently with
this motion.
On April 20, 2006, 91 days after the order of dismissal was
entered, the Court filed the document as a “Motion for Leave to
File Motion to Vacate Order of Dismissal Embodying Motion to
Vacate Order of Dismissal”. Contrary to the language in the
motion for leave, the Court received petitioner’s amended
petition on April 26, 2006.
2
Except in limited circumstances that do not apply here,
Rule 54 generally requires motions to be separately stated and
not joined together. We allowed the document to be filed here in
the interest of judicial administration but do not purport to
sanction the filing of joint motions in future cases.
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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).
On January 19, 2006, 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).
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
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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 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
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 shall otherwise permit.” (Emphasis added.) Petitioner did
not file a motion to vacate or revise within 30 days after the
Court’s order of dismissal was entered. Therefore, in order for
her 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).
Petitioner’s motion for leave was postmarked and mailed
prior to the expiration of the 90-day appeal period. The timely-
mailing/timely-filing provisions of section 7502 apply to a
motion for leave to file a motion to vacate a decision that is
mailed and postmarked prior to, but received by the Court after,
the expiration of the 90-day appeal period. Stewart v.
Commissioner, supra at ___ (slip op. at 13). Therefore, we have
jurisdiction to consider petitioner’s motion for leave. However,
whether the Court retains jurisdiction over petitioner’s case
depends on whether the Court grants leave to file petitioner’s
motion to vacate. Id. at ___ (slip op. at 14). If 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.
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Commissioner, 67 F.3d 1489, 1492 (9th Cir. 1995), affg. T.C.
Memo. 1992-731; Stewart v. Commissioner, supra at ___ (slip op.
at 14). However, if the motion for leave is not granted, the
motion to vacate cannot be filed. If the motion to vacate is not
filed, the appeal period is not extended, and the order of
dismissal for lack of jurisdiction is final. The filing of a
taxpayer’s motion for leave to file a motion to vacate does not
extend the time for appeal unless the Court grants the motion for
leave and permits the filing of the motion to vacate. Nordvik v.
Commissioner, supra at 1492; Stewart v. Commissioner, supra at
___ (slip op. at 15-16); Haley v. Commissioner, 805 F. Supp. 834,
836 (E.D. Cal. 1992), affd. without published opinion 5 F.3d 536
(9th Cir. 1993).5
Whether to grant petitioner’s motion for leave is
discretionary. Stewart v. Commissioner, supra at ___ (slip op.
at 5-6). However, a timely motion for leave, without more, is
not necessarily sufficient to persuade the Court to grant such
motion. In deciding what action to take, “We are guided
primarily by whether it would be in the interest of justice to
vacate the prior decision. But, we also recognize that
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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litigation must end at sometime.” Estate of Egger v.
Commissioner, 92 T.C. 1079, 1083 (1989); Manchester Group v.
Commissioner, T.C. Memo. 1997-576.
Petitioner failed to file an amended petition or to pay the
required filing fee in accordance with the Court’s June 9, 2005,
order. On October 13, 2005, the Court extended the time for
petitioner to file an amended petition and to pay the filing fee
until November 3, 2005. Although petitioner eventually paid the
filing fee, she failed to comply with the Court’s orders to file
a proper amended petition. After her case was dismissed for lack
of jurisdiction, petitioner waited until the time for appeal was
about to expire to file her motion for leave.
Petitioner has been afforded several opportunities and
sufficient time to file her amended petition. Petitioner has
repeatedly failed to comply with the Court’s orders, and she has
provided no reasonable excuses for her lack of compliance.
Therefore, in the exercise of our discretion and in the interests
of justice, we will deny petitioner’s motion for leave.6 It
6
See Rice v. Commissioner, T.C. Memo. 2006-236, in which
the taxpayer’s filings and failure to comply with the Court’s
orders were similar, resulting in the denial of the taxpayer’s
motion for leave to file a motion to vacate the Court’s order of
dismissal for lack of jurisdiction.
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follows that the Court’s order of dismissal for lack of
jurisdiction in this case became final on April 19, 2006, 90 days
after the order was entered.
To reflect the foregoing,
An appropriate order will
be issued.