T.C. Memo. 2006-249
UNITED STATES TAX COURT
BYRON HOFFMAN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12889-05L. Filed November 14, 2006.
Byron Hoffman, pro se.
MEMORANDUM OPINION
RUWE, Judge: This case is before the Court on petitioner’s
Motion for Leave to File Motion to Vacate (hereinafter referred
to as petitioner’s motion for leave). We must decide whether to
grant petitioner’s motion for leave. At the time the petition
was filed, petitioner resided in Oakland, California.1
1
By order dated Oct. 17, 2005, the Court changed
petitioner’s address to Hayward, California.
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Background
On June 8, 2005, respondent issued to petitioner a Decision
Letter Concerning Equivalent Hearing Under Section 6330 of the
Internal Revenue Code2 (decision letter) regarding his unpaid
Federal income tax liabilities for 1998 and 2000, in which
respondent’s Office of Appeals sustained the levy action.3 On
July 6, 2005, petitioner sent to the Court a document, which
states in relevant part:
Dear Tax Court Judge,
The Collection Due Process (hereafter “CDP”) Hearing
that I requested has been decided. I need your
assistance regarding a Notice of Levy I received from
the Internal Revenue Service (hereafter “IRS”) for the
tax years 1998 and 2000. I believe that this hearing
process has been unfair and biased. The IRS appeals
agent refused to grant me a CDP Hearing, which I
requested on 12/07/04. Instead, she attempted to give
me an Equivalent Hearing. Nor did the appeals agent
provided [sic] the information I requested.
I am filing a petition with the U.S. Tax Court because
I believe the IRS numbers are wrong and they have
violated their own procedures. 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?
2
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
3
While the basis of petitioner’s claim is not entirely
clear, we note that it is doubtful that a decision letter
concerning an equivalent hearing could be appealed to this Court.
See Offiler v. Commissioner, 114 T.C. 492, 498 (2000).
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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
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 July
11, 2005, the Court filed petitioner’s document as an imperfect
petition. By order dated July 18, 2005, the Court directed
petitioner to file a proper amended petition and to pay the
filing fee on or before September 1, 2005. The order stated that
if an amended petition and the filing fee were not received on or
before September 1, 2005, the case would be dismissed. By order
dated October 17, 2005, the Court extended the time for
petitioner to file a proper amended petition and to pay the
filing fee until November 4, 2005. Petitioner paid the filing
fee but failed to comply with the Court’s orders to file an
amended petition. On December 7, 2005, the Court entered an
Order of Dismissal for Lack of Jurisdiction (order of dismissal).
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On March 6, 2006, 89 days after the order of dismissal was
entered, petitioner mailed to the Court, among other documents, a
Motion to Vacate Order of Dismissal for Lack of Jurisdiction and
Amended Petition. On March 14, 2006, 97 days after the order of
dismissal was entered, the Court received petitioner’s motion to
vacate and amended petition. On March 16, 2006, the Court
returned the aforementioned documents to petitioner unfiled
explaining that the order of dismissal was final and the
documents were late. On June 6, 2006, petitioner mailed to the
Court two documents entitled “Motion for Permission to Re-File
Motions” (motion for leave) and “Motion to Vacate the Order of
Dismissal for Lack of Jurisdiction” (motion to vacate). On June
9, 2006, the Court received the documents and filed petitioner’s
motion for leave as a “Motion for Leave to File Motion to
Vacate”. The Court received petitioner’s amended petition with
the motion for leave and motion to vacate.
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 December 7, 2005, we dismissed petitioner’s case for lack
of jurisdiction. An order of dismissal for lack of jurisdiction
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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
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.4
Pursuant to rule 13(a) of the Federal Rules of Appellate
Procedure, if under the Tax Court’s Rules a party makes a timely
4
As previously explained, an order of dismissal for lack of
jurisdiction is treated as the Court’s decision.
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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.”5
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
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
5
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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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 original motion to vacate, which we will treat
as a motion for leave to file a motion to vacate, was postmarked
and mailed on March 6, 2006, which was 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).
In view of our recent holding in Stewart v. Commissioner,
supra, the Court recognizes that the original motion for leave
was timely mailed. 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. 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
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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).6
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
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.
6
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 failed to file an amended petition or to pay the
required filing fee in accordance with the Court’s July 18, 2005,
order. On October 17, 2005, the Court extended the time for
petitioner to file an amended petition and to pay the filing fee
until November 4, 2005. Though petitioner paid the filing fee,
he failed to comply with the Court’s orders to file a proper
amended petition. After his case was dismissed for lack of
jurisdiction on December 7, 2005, petitioner waited until the
time for appeal was about to expire to file his motion for leave.
Petitioner has been afforded several opportunities and
sufficient time to file his amended petition. Petitioner has
repeatedly failed to comply with the Court’s orders, and he has
provided no reasonable excuses for his lack of compliance. In
the exercise of our discretion and in the interests of justice,
we will deny petitioner’s motion for leave.7 It follows that the
Court’s order of dismissal for lack of jurisdiction in this case
7
See Rice v. Commissioner, T.C. Memo. 2006-236, Walther v.
Commissioner, T.C. Memo. 2006-247, and Sprenger v. Commissioner,
T.C. Memo. 2006-248, in each of which the taxpayer’s imperfect
petition, timing of 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 order
of dismissal for lack of jurisdiction.
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became final on March 7, 2006, 90 days after the order was
entered.
To reflect the foregoing,
An appropriate order will
be issued.